1

G.R. No. L-40789 February 27, 1987

INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA . ROSALES,
petitioner,
vs.
FORT!NATO ROSALES, "AGNA ROSALES AE#ES, "AI$E%!ERO&
ROSALES a'( ANTONIO ROSALES, respondents.
In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu
the question raised is whether the widow whose husband predeceased his mother
can inherit from the atter, her mother!in!aw.
It appears from the record of the case that on Februar" 2#, $%&$, 'rs. Petra (.
Rosaes, a resident of Cebu Cit", died intestate. )he was survived b" her husband
Fortunate *. Rosaes and their two (2) chidren 'a+na Rosaes ,cebes and ,ntonio
Rosaes. ,nother chid, Carterio Rosaes, predeceased her, eavin+ behind a chid,
'aci-equero. Rosaes, and his widow Irenea C. Rosaes, the herein petitioner. *he
estate of the dismissed has an estimated +ross vaue of about *hirt" *housand Pesos
(P/0,000.00).
On 1u" $0, $%&$, 'a+na Rosaes ,cebes instituted the proceedin+s for the
settement of the estate of the deceased in the Court of First Instance of Cebu. *he
case was doc-eted as )pecia Proceedin+s 2o. /203!R. *hereafter, the tria court
appointed 'a+na Rosaes ,cebes administratri. of the said estate.
In the course of the intestate proceedin+s, the tria court issued an Order dated 1une
$#, $%&2 decarin+ the foowin+ in individuas the e+a heirs of the deceased and
prescribin+ their respective share of the estate 4
Fortunata *. Rosaes (husband), $536 'a+na R. ,cebes (dau+hter), $536
'aci-equero. Rosaes, $536 and ,ntonio Rosaes son, $53.
*his decaration was reiterated b" the tria court in its Order I dated Februar" 3,
$%&7.
*hese Orders notwithstandin+, Irenea Rosaes insisted in +ettin+ a share of the
estate in her capacit" as the survivin+ spouse of the ate Carterio Rosaes, son of the
deceased, caimin+ that she is a compusor" heir of her mother!in!aw to+ether with
her son, 'aci-equero. Rosaes.
*hus, Irenea Rosaes sou+ht the reconsideration of the aforementioned Orders. *he
tria court denied her pea. 8ence this petition.
In sum, the petitioner poses two (2) questions for Our resoution petition. First 4 is
a widow (survivin+ spouse) an intestate heir of her mother!in!aw9 )econd 4 are
the Orders of the tria court which e.cuded the widow from +ettin+ a share of the
estate in question fina as a+ainst the said widow9
Our answer to the first question is in the ne+ative.
Intestate or e+a heirs are cassified into two (2) +roups, name", those who inherit
b" their own ri+ht, and those who inherit b" the ri+ht of representation.
1
Restated,
an intestate heir can on" inherit either b" his own ri+ht, as in the order of intestate
succession provided for in the Civi Code,
2
or b" the ri+ht of representation
provided for in ,rtice %:$ of the same aw. *he reevant provisions of the Civi
Code are;
,rt. %:0. *he chidren of the deceased sha awa"s inherit from him in their own
ri+ht, dividin+ the inheritance in equa shares.
,rt. %:$. )houd chidren of the deceased and descendants of other chidren who are
dead, survive, the former sha inherit in their own ri+ht, and the atter b" ri+ht of
representation.
,rt. %:2. *he +randchidren and other descendants sha+ inherit b" ri+ht of
representation, and if an" one of them shoud have died, eavin+ severa heirs, the
portion pertainin+ to him sha be divided amon+ the atter in equa portions.
,rt. %%%. <hen the widow or widower survives with e+itimate chidren or their
descendants and ie+itimate chidren or their descendants, whether e+itimate or
ie+itimate, such widow or widower sha be entited to the same share as that of a
e+itimate chid.
*here is no provision in the Civi Code which states that a widow (survivin+
spouse) is an intestate heir of her mother!in!aw. *he entire Code is devoid of an"
provision which entites her to inherit from her mother!in! aw either b" her own
ri+ht or b" the ri+ht of representation. *he provisions of the Code which reate to
the order of intestate succession (,rtices %&: to $0$3) enumerate with meticuous
e.actitude the intestate heirs of a decedent, with the )tate as the fina intestate heir.
*he conspicuous absence of a provision which ma-es a dau+hter!in!aw an intestate
2
heir of the deceased a the more confirms Our observation. If the e+isature
intended to ma-e the survivin+ spouse an intestate heir of the parent!in!aw, it
woud have so provided in the Code.
Petitioner ar+ues that she is a compusor" heir in accordance with the provisions of
,rtice ::& of the Civi Code which provides that;
,rt. ::&. *he foowin+ are compusor" heirs;
($) =e+itimate chidren and descendants, with respect to their e+itimate parents and
ascendants6
(2) In defaut of the fore+oin+, e+itimate parents and ascendants, with respect to
their e+itimate chidren and descendants6
(/) *he widow or widower6
(3) ,c-nowed+ed natura chidren, and natura chidren b" e+a fiction6
(7) Other ie+itimate chidren referred to in artice 2:&6
Compusor" heirs mentioned in 2os. /, 3 and 7 are not e.cuded b" those in 2os. $
and 26 neither do the" e.cude one another.
In a cases of ie+itimate chidren, their fiiation must be du" proved.
*he father or mother of ie+itimate chidren of the three casses mentioned, sha
inherit from them in the manner and to the e.tent estabished b" this Code.
*he aforesaid provision of aw
)
refers to the estate of the deceased spouse in which
case the survivin+ spouse (widow or widower) is a compusor" heir. It does not
app" to the estate of a parent!in!aw.
Indeed, the survivin+ spouse is considered a third person as re+ards the estate of the
parent!in!aw. <e had occasion to ma-e this observation in Lachenal v. Salas,
4
to
<it;
<e hod that the tite to the fishin+ boat shoud be determined in Civi Case 2o.
/7%& (not in the intestate proceedin+) because it affects the essee thereof, =ope =.
=eoncio, the decedent>s son-in-law, who, although married to his daughter or
compulsory heir, is nevertheless a third person with respect to his estate. ...
(?mphasis suppied).
@" the same to-en, the provision of ,rtice %%% of the Civi Code aforecited does
not support petitioner>s caim. , carefu e.amination of the said ,rtice confirms
that the estate contempated therein is the estate of the deceased spouse. *he estate
which is the subAect matter of the intestate estate proceedin+s in this case is that of
the deceased Petra (. Rosaes, the mother!in!aw of the petitioner. It is from the
estate of Petra (. Rosaes that 'aci-equero. Rosaes draws a share of the
inheritance b" the ri+ht of representation as provided b" ,rtice %:$ of the Code.
*he essence and nature of the ri+ht of representation is e.pained b" ,rtices %&0
and %&$ of the Civi Code, viz 4
,rt. %&0. Representation is a ri+ht created b" fiction of aw, b" virtue of which the
representative is raised to the pace and the de+ree of the person represented, and
acquires the ri+hts which the atter woud have if he were ivin+ or if he coud have
inherited.
,rt. %&$. *he representative is caed to the succession b" the aw and not b" the
person represented. The representative does not succeed the person represented but
the one whom the person represented woud have succeeded. (?mphasis suppied.)
,rtice %&$ e.picit" decares that 'aci-equero. Rosaes is caed to succession b"
aw because of his bood reationship. 8e does not succeed his father, Carterio
Rosaes (the person represented) who predeceased his +randmother, Petra Rosaes,
but the atter whom his father woud have succeeded. Petitioner cannot assert the
same ri+ht of representation as she has no fiiation b" bood with her mother!in!aw.
Petitioner however contends that at the time of the death of her husband Carterio
Rosaes he had an inchoate or contin+ent ri+ht to the properties of Petra Rosaes as
compusor" heir. @e that as it ma", said ri+ht of her husband was e.tin+uished b"
his death that is wh" it is their son 'aci-equero. Rosaes who succeeded from
Petra Rosaes b" ri+ht of representation. 8e did not succeed from his deceased
father, Carterio Rosaes.
On the basis of the fore+oin+ observations and concusions, <e find it unnecessar"
to pass upon the second question posed b" the petitioner.
3
,ccordin+", it is Our considered opinion, and <e so hod, that a survivin+ spouse is
not an intestate heir of his or her parent!in!aw.
<8?R?FOR?, in view of the fore+oin+, the Petition is hereb" B?2I?B for ac- of
merit, with costs a+ainst the petitioner. =et this case be remanded to the tria!court
for further proceedin+s.
4
G.R. No. L-)0977 *a'uary )1, 1972
AR"EN LAP!+ S,, re-re.e'/e( by 0er .ub./1/u/e "AARIO LAP!+,
petitioner!appeant,
vs.
E!FE"IO S. E!FE"IO a21a. E!FE"IO S, !,, respondent!appeee.
RE,ES *.#.L., J.:p
Petition, fied after the effectivit" of Repubic ,ct 7330, for review b" certiorari of
an order, dated 2% 1u" $%#%, of the 1uvenie and Bomestic Reations Court of
'ania, in its Civi Case 2o. 20/:&, dismissin+ said case for e+a separation on the
+round that the death of the therein paintiff, Carmen O. =apuC )", which occurred
durin+ the pendenc" of the case, abated the cause of action as we as the action
itsef. *he dismissa order was issued over the obAection of 'acario =apuC, the heir
of the deceased paintiff (and petitioner herein) who sou+ht to substitute the
deceased and to have the case prosecuted to fina Aud+ment.
On $: ,u+ust $%7/, Carmen O. =apuC )" fied a petition for e+a separation
a+ainst ?ufemio ). ?ufemio, ae+in+, in the main, that the" were married civi" on
2$ )eptember $%/3 and canonica" on /0 )eptember $%/36 that the" had ived
to+ether as husband and wife continuous" unti $%3/ when her husband abandoned
her6 that the" had no chid6 that the" acquired properties durin+ their marria+e6 and
that she discovered her husband cohabitin+ with a Chinese woman named Do 8io-
at $/$% )isa )treet, 'ania, on or about 'arch $%3%. )he pra"ed for the issuance of
a decree of e+a separation, which, amon+ others, woud order that the defendant
?ufemio ). ?ufemio shoud be deprived of his share of the conAu+a partnership
profits.
In his second amended answer to the petition, herein respondent ?ufemio ).
?ufemio ae+ed affirmative and specia defenses, and, aon+ with severa other
caims invovin+ mone" and other properties, counter!caimed for the decaration of
nuit" ab initio of his marria+e with Carmen O. =apuC )", on the +round of his
prior and subsistin+ marria+e, ceebrated accordin+ to Chinese aw and customs,
with one Do 8io-, aias 2+o 8io-.
Issues havin+ been Aoined, tria proceeded and the parties adduced their respective
evidence. @ut before the tria coud be competed (the respondent was aread"
schedued to present surrebutta evidence on % and $: 1une $%#%), petitioner Carmen
O. =apuC )" died in a vehicuar accident on /$ 'a" $%#%. Counse for petitioner
du" notified the court of her death.
On % 1une $%#%, respondent ?ufemio moved to dismiss the Epetition for e+a
separationE
1
on two (2) +rounds, name"; that the petition for e+a separation was
fied be"ond the one!"ear period provided for in ,rtice $02 of the Civi Code6 and
that the death of Carmen abated the action for e+a separation.
On 2# 1une $%#%, counse for deceased petitioner moved to substitute the deceased
Carmen b" her father, 'acario =apuC. Counse for ?ufemio opposed the motion.
On 2% 1u" $%#%, the court issued the order under review, dismissin+ the case.
2
In
the bod" of the order, the court stated that the motion to dismiss and the motion for
substitution had to be resoved on the question of whether or not the paintiff>s cause
of action has survived, which the court resoved in the ne+ative. Petitioner>s moved
to reconsider but the motion was denied on $7 )eptember $%#%.
,fter first securin+ an e.tension of time to fie a petition for review of the order of
dismissa issued b" the Auvenie and domestic reations court, the petitioner fied the
present petition on $3 October $%#%. *he same was +iven due course and answer
thereto was fied b" respondent, who pra"ed for the affirmance of the said order.
)
,thou+h the defendant beow, the herein respondent ?ufemio ). ?ufemio, fied
countercaims, he did not pursue them after the court beow dismissed the case. 8e
acquiesced in the dismissa of said countercaims b" pra"in+ for the affirmance of
the order that dismissed not on" the petition for e+a separation but aso his
countercaim to decare the ?ufemio!=apuC marria+e to be nu and void ab initio.
@ut petitioner Carmen O. =apuC )" (throu+h her sef!assumed substitute 4 for the
ower court did not act on the motion for substitution) stated the principa issue to be
as foows;
<hen an action for e+a separation is converted b" the
countercaim into one for a decaration of nuit" of a
marria+e, does the death of a part" abate the proceedin+s9
*he issue as framed b" petitioner inAects into it a supposed conversion of a e+a
separation suit to one for decaration of nuit" of a marria+e, which is without basis,
for even petitioner asserted that Ethe respondent has acquiesced to the dismissa of
his countercaimE (Petitioner>s @rief, pa+e 22). 2ot on" this. *he petition for e+a
5
separation and the countercaim to decare the nuit" of the sef same marria+e can
stand independent and separate adAudication. *he" are not inseparabe nor was the
action for e+a separation converted into one for a decaration of nuit" b" the
countercaim, for e+a separation pre!supposes a vaid marria+e, whie the petition
for nuit" has a voidabe marria+e as a pre!condition.
*he first rea issue in this case is; Boes the death of the paintiff before fina decree,
in an action for e+a separation, abate the action9 If it does, wi abatement aso
app" if the action invoves propert" ri+hts9 .
,n action for e+a separation which invoves nothin+ more than the bed!and!board
separation of the spouses (there bein+ no absoute divorce in this Aurisdiction) is
pure" persona. *he Civi Code of the Phiippines reco+niCes this in its ,rtice $00,
b" aowin+ on" the innocent spouse (and no one ese) to caim e+a separation6
and in its ,rtice $0:, b" providin+ that the spouses can, b" their reconciiation, stop
or abate the proceedin+s and even rescind a decree of e+a separation aread"
rendered. @ein+ persona in character, it foows that the death of one part" to the
action causes the death of the action itsef 4 actio personalis moritur cum persona.
... <hen one of the spouses is dead, there is no need for divorce, because the
marria+e is dissoved. *he heirs cannot even continue the suit, if the death of the
spouse ta-es pace durin+ the course of the suit (,rtice 233, )ection /). *he action
is absoute" dead (Cass., 1u" 2&, $:&$, B. &$. $. :$6 Cass. req., 'a" :, $%//, B. 8.
$%//, //2.E)
4
.
'arria+e is a persona reation or status, created under the sanction of aw, and an
action for divorce is a proceedin+ brou+ht for the purpose of effectin+ a dissoution
of that reation. *he action is one of a persona nature. In the absence of a statute to
the contrar", the death of one of the parties to such action abates the action, for the
reason that death has setted the question of separation be"ond a controvers" and
deprived the court of Aurisdiction, both over the persons of the parties to the action
and of the subAect!matter of the action itsef. For this reason the courts are amost
unanimous in hodin+ that the death of either part" to a divorce proceedin+, before
fina decree, abates the action. $ Corpus 1uris, 20:6 <ren v. 'oss, 2 Diman, &26
Banforth v. Banforth, $$$ I. 2/#6 'atter of Dranda, $%# 2.F. $2&, :% 2.?. 7&:6
$/3 ,m )t. Rep. :/06 $& ,nn. Cas. :&36 <icon v. <ison, &/ 'ich, #20, 3$ 2.<.
:$&6 )tric-and v. )tric-and, :0 ,r-. 372, %& ). <. #7%6 'cCure" v. 'cCure", #0
'd. $:7, 37 ,m. Rep. &$&6 @e+bie v. @e+bie, $2: Ca. $77, #0 Pac. ##&, 3% =.R.,.
$3$.
3
*he same rue is true of causes of action and suits for separation and maintenance
(1ohnson vs. @ates, ,r-. $0$ )< 3$26 $ Corpus 1uris 20:).
, review of the resutin+ chan+es in propert" reations between spouses shows that
the" are soe" the effect of the decree of e+a separation6 hence, the" can not
survive the death of the paintiff if it occurs prior to the decree. On the point, ,rtice
$0# of the Civi Code provides; .
,rt. $0#. *he decree of e+a separation sha have the foowin+ effects;
($) *he spouses sha be entited to ive separate" from each other, but the marria+e
bonds sha not be severed6 .
(2) *he conAu+a partnership of +ains or the absoute conAu+a communit" of
propert" sha be dissoved and iquidated, but the offendin+ spouse sha have no
ri+ht to an" share of the profits earned b" the partnership or communit", without
preAudice to the provisions of artice $&#6
(/) *he custod" of the minor chidren sha be awarded to the innocent spouse,
uness otherwise directed b" the court in the interest of said minors, for whom said
court ma" appoint a +uardian6
(3) *he offendin+ spouse sha be disquaified from inheritin+ from the innocent
spouse b" intestate succession. 'oreover, provisions in favor of the offendin+
spouse made in the wi of the innocent one sha be revo-ed b" operation of aw.
From this artice it is apparent that the ri+ht to the dissoution of the conAu+a
partnership of +ains (or of the absoute communit" of propert"), the oss of ri+ht b"
the offendin+ spouse to an" share of the profits earned b" the partnership or
communit", or his disquaification to inherit b" intestac" from the innocent spouse
as we as the revocation of testamentar" provisions in favor of the offendin+ spouse
made b" the innocent one, are a ri+hts and disabiities that, b" the ver" terms of the
Civi Code artice, are vested e.cusive" in the persons of the spouses6 and b" their
nature and intent, such caims and disabiities are difficut to conceive as assi+nabe
or transmissibe. 8ence, a caim to said ri+hts is not a caim that Eis not thereb"
e.tin+uishedE after a part" dies, under )ection $&, Rue /, of the Rues of Court, to
warrant continuation of the action throu+h a substitute of the deceased part".
)ec. $&. Death of party. ,fter a part" dies and the caim is not thereb" e.tin+uished,
the court sha order, upon proper notice, the e+a representative of the deceased to
6
appear and to be substituted for the deceased, within a period of thirt" (/0) da"s, or
within such time as ma" be +ranted...
*he same resut fows from a consideration of the enumeration of the actions that
survive for or a+ainst administrators in )ection $, Rue :&, of the Revised Rues of
Court;
)?C*IO2 $. ,ctions which ma" and which ma" not be brou+ht a+ainst e.ecutor or
administrator. 2o action upon a caim for the recover" of mone" or debt or interest
thereon sha be commenced a+ainst the e.ecutor or administrator6 but actions to
recover rea or persona propert", or an interest therein, from the estate, or to enforce
a ien thereon, and actions to recover dama+es for an inAur" to person or propert",
rea or persona, ma" be commenced a+ainst him.
2either actions for e+a separation or for annument of marria+e can be deemed
fair" incuded in the enumeration..
, further reason wh" an action for e+a separation is abated b" the death of the
paintiff, even if propert" ri+hts are invoved, is that these ri+hts are mere effects of
decree of separation, their source bein+ the decree itsef6 without the decree such
ri+hts do not come into e.istence, so that before the finait" of a decree, these caims
are mere" ri+hts in e.pectation. If death supervenes durin+ the pendenc" of the
action, no decree can be forthcomin+, death producin+ a more radica and definitive
separation6 and the e.pected consequentia ri+hts and caims woud necessari"
remain unborn.
,s to the petition of respondent!appeee ?ufemio for a decaration of nuit" ab
initio of his marria+e to Carmen =apuC, it is apparent that such action became moot
and academic upon the death of the atter, and there coud be no further interest in
continuin+ the same after her demise, that automatica" dissoved the questioned
union. ,n" propert" ri+hts acquired b" either part" as a resut of ,rtice $33 of the
Civi Code of the Phiippines # coud be resoved and determined in a proper action
for partition b" either the appeee or b" the heirs of the appeant.
In fact, even if the bi+amous marria+e had not been void ab initio but on" voidabe
under ,rtice :/, para+raph 2, of the Civi Code, because the second marria+e had
been contracted with the first wife havin+ been an absentee for seven consecutive
"ears, or when she had been +enera" beieved dead, sti the action for annument
became e.tin+uished as soon as one of the three persons invoved had died, as
provided in ,rtice :&, para+raph 2, of the Code, requirin+ that the action for
annument shoud be brou+ht durin+ the ifetime of an" one of the parties invoved.
,nd furthermore, the iquidation of an" conAu+a partnership that mi+ht have
resuted from such voidabe marria+e must be carried out Ein the testate or intestate
proceedin+s of the deceased spouseE, as e.press" provided in )ection 2 of the
Revised Rue &/, and not in the annument proceedin+.
,CCORBI2D=F, the appeaed Aud+ment of the 'ania Court of 1uvenie and
Bomestic Reations is hereb" affirmed. 2o specia pronouncement as to costs.
7
G.R. No. 822)) "ar40 22, 1990
*OSE #ARIT!A a'( E5GAR #ITANOR, petitioners,
vs.
6ONORA#LE O!RT OF APPEALS, NIOLAS NAARIO a'(
VITORIA RON5A NAARIO, respondents.
SAR"IENTO, J.:
*his petition for review on certiorari assais as erroneous and contrar" to e.istin+
reevant aws and appicabe Aurisprudence the decision
1
of the Court of ,ppeas
dated Becember $$, $%:& which reversed and set aside that of the Re+iona *ria
Court, @ranch GGGII, at Pii, Camarines )ur.
2
*he chaen+ed decision adAud+ed
the petitioners iabe to the private respondents in the tota amount of P20,707.00
and for costs.
*he facts are as foows;
In the evenin+ of 2ovember &, $%&%, the tric"ce then bein+ driven b" @ienvenido
2acario aon+ the nationa hi+hwa" at @aran+a" )an Ca"etano, in @aao, Camarines
)ur, fi+ured in an accident with 1@ @us 2o. :0 driven b" petitioner ?d+ar @itancor
and owned and operated b" petitioner 1ose @aritua.
)
,s a resut of that accident
@ienvenido and his passen+er died
4
and the tric"ce was dama+ed.
3
2o crimina
case arisin+ from the incident was ever instituted.
7
)ubsequent", on 'arch 2&, $%:0, as a consequence of the e.tra!Audicia settement
of the matter ne+otiated b" the petitioners and the bus insurer 4 Phiippine First
Insurance Compan", Incorporated (PFICI for brevit") 4 @ienvenido 2acario>s
widow, ,icia @aracena (da. de 2acario, received P$:,700.00. In consideration of
the amount she received, ,icia e.ecuted on 'arch 2&, $%:0 a EReease of CaimE
in favor of the petitioners and PFICI, reeasin+ and forever dischar+in+ them from
a actions, caims, and demands arisin+ from the accident which resuted in her
husband>s death and the dama+e to the tric"ce which the deceased was then drivin+.
,icia i-ewise e.ecuted an affidavit of desistance in which she forma" manifested
her ac- of interest in institutin+ an" case, either civi or crimina, a+ainst the
petitioners.
7
On )eptember 2, $%:$, or about one "ear and ten months from the date of the
accident on 2ovember &, $%&%, the private respondents, who are the parents of
@ienvenido 2acario, fied a compaint for dama+es a+ainst the petitioners with the
then Court of First Instance of Camarines )ur.
8
In their compaint, the private
respondents ae+ed that durin+ the vi+i for their deceased son, the petitioners
throu+h their representatives promised them (the private respondents) that as e.tra!
Audicia settement, the" sha be indemnified for the death of their son, for the
funera e.penses incurred b" reason thereof, and for the dama+e for the tric"ce the
purchase price of which the" (the private respondents) on" oaned to the victim.
*he petitioners, however, rene+ed on their promise and instead ne+otiated and
setted their obi+ations with the on+!estran+ed wife of their ate son. *he 2acario
spouses pra"ed that the defendants, petitioners herein, be ordered to indemnif" them
in the amount of P27,000.00 for the death of their son @ienvenido, P$0,000.00 for
the dama+ed tric"ce, P27,000.00 for compensator" and e.empar" dama+es,
P7,000.00 for attorne">s fees, and for mora dama+es.
9
,fter tria, the court a quo dismissed the compaint, hodin+ that the pa"ment b" the
defendants (herein petitioners) to the widow and her chid, who are the preferred
heirs and successors!in!interest of the deceased @ienvenido to the e.cusion of his
parents, the paintiffs (herein private respondents), e.tin+uished an" caim a+ainst
the defendants (petitioners).
10
*he parents appeaed to the Court of ,ppeas which reversed the Aud+ment of the
tria court. *he appeate court rued that the reease e.ecuted b" ,icia @aracena
(da. de 2acario did not dischar+e the iabiit" of the petitioners because the case
was instituted b" the private respondents in their own capacit" and not as Eheirs,
representatives, successors, and assi+nsE of ,icia6 and ,icia coud not have vaid"
waived the dama+es bein+ pra"ed for (b" the private respondents) since she was not
the one who suffered these dama+es arisin+ from the death of their son.
Furthermore, the appeate court said that the petitioners Efaied to rebut the
testimon" of the appeants (private respondents) that the" were the ones who
bou+ht the tric"ce that was dama+ed in the incident. ,ppeants had the burden of
proof of such fact, and the" did estabish such fact in their testimon" . . .
11
,nent the
funera e.penses, E(*)he e.penses for the funera were i-ewise shoudered b" the
appeants (the private respondents). *his was never contradicted b" the appeees
(petitioners). . . . Pa"ment (for these) were made b" the appeants, therefore, the
reimbursement must accrue in their favor.
12
Consequent", the respondent appeate court ordered the petitioners to pa" the
private respondents P$0,000.00 for the dama+e of the tric"ce, P7,000.00 for
EcompeteE funera services, P370.00 for cemeter" ot, P77.00 for oracion adulto,
and P7,000.00 for attorne">s fees.
1)
*he petitioners moved for
a reconsideration of the appeate court>s decision
14
but their motion was denied.
13

8ence, this petition.
8
*he issue here is whether or not the respondent appeate court erred in hodin+ that
the petitioners are sti iabe to pa" the private respondents the a++re+ate amount of
P20,707.00 despite the a+reement of e.traAudicia settement between the petitioners
and the victim>s compusor" heirs.
*he petition is meritorious.
Obi+ations are e.tin+uished b" various modes amon+ them bein+ b" pa"ment.
,rtice $2/$ of the Civi Code of the Phiippines provides;
,rt. $2/$. Obi+ations are e.tin+uished;
($) y payment or performance6
(2) @" the oss of the thin+ due6
(/) @" the condonation or remission of the debt6
(3) @" the confusion or mer+er of the ri+hts of creditor
and debtor6
(7) @" compensation6
(#) @" novation.
(?mphasis ours.)
*here is no den"in+ that the petitioners had paid their obi+ation petition arisin+
from the accident that occurred on 2ovember &, $%&%. *he on" question now is
whether or not ,icia, the spouse and the one who received the petitioners> pa"ment,
is entited to it.
,rtice $230 of the Civi Code of the Phiippines enumerates the persons to whom
pa"ment to e.tin+uish an obi+ation shoud be made.
,rt $230. Pa"ment sha be made to the person in whose favor the obi+ation has
been constituted, or his successor in interest, or an" person authoriCed to receive it.
Certain" there can be no question that ,icia and her son with the deceased are the
successors in interest referred to in aw as the persons authoriCed to receive
pa"ment. *he Civi Code states;
,rtice ::&. *he foowin+ are compusor" heirs;
$. =e+itimate chidren and descendants, with respect to their e+itimate parents and
ascendants6
2. !n default of the foregoing, e+itimate parents and ascendants with respect to their
e+itimate chidren and decendants6
/. *he widow or widower6
3. ,c-nowed+ed natura chidren and natura chidren b" e+a fiction6
7. Other ie+itimate chidren referred to in ,rtice 2:&.
Compusor" heirs mentioned in 2os. /, 3 and 7 are not e.cuded b" those in 2os. $
and 2. 2either do the" e.cude one another. (?mphasis ours.)
,rtice %:7. !n default of legitimate children and descendants of the deceased, his
parents and ascendants sha inherit from him, to the e.cusion of coatera
reatives.
(?mphasis ours.)
It is patent" cear that the parents of the deceased succeed on" when the atter dies
without a e+itimate descendant. On the other hand, the survivin+ spouse concurs
with a casses of heirs. ,s it has been estabished that @ienvenido was married to
,icia and that the" be+ot a chid, the private respondents are not successors!in!
interest of @ienvenido6 the" are not compusor" heirs. *he petitioners therefore
acted correct" in settin+ their obi+ation with ,icia as the widow of @ienvenido
and as the natura +uardian of their one chid. *his is so even if ,icia had been
estran+ed from @ienvenido. 'ere estran+ement is not a e+a +round for the
disquaification of a survivin+ spouse as an heir of the deceased spouse.
2either coud the private respondents, as ae+ed creditors of @ienvenido, see- reief
and compensation from the petitioners. <hie it ma" be true that the private
9
respondents oaned to @ienvenido the purchase price of the dama+ed tric"ce and
shoudered the e.penses for his funera, the said purchase price and e.penses are but
mone" caims a+ainst the estate of their deceased son.
17
*hese mone" caims are not
the iabiities of the petitioners who, as we have said, had been reeased b" the
a+reement of the e.tra!Audicia settement the" concuded with ,icia @aracena (da.
de 2acario, the victim>s widow and heir, as we as the natura +uardian of their
chid, her co!heir. ,s a matter of fact, she e.ecuted a EReease Of CaimE in favor of
the petitioners.
<8?R?FOR?, the petition is DR,2*?B6 the decision of the Court of ,ppeas is
R?(?R)?B and )?* ,)IB? and the decision of the Re+iona *ria Court is hereb"
R?I2)*,*?B. Costs a+ainst the private respondents.
10
G.R. No. 8)484 February 12, 1990
ELE5ONIA SOLIVIO, petitioner,
vs.
T6E 6ONORA#LE O!RT OF APPEALS a'( ONOR5IA *AVELLANA
VILLAN!EVA, respondents.
"E5IAL5EA, J.:
*his is a petition for review of the decision dated 1anuar" 2#, $%:: of the Court of
,ppeas in C, DR C( 2o. 0%0$0 (Concordia (ianueva v. Ceedonia )oivio)
affirmin+ the decision of the tria court in Civi Case 2o. $/20& for partition,
reconve"ance of ownership and possession and dama+es, the dispositive portion of
which reads as foows;
<8?R?FOR?, Aud+ment is hereb" rendered for the paintiff and a+ainst defendant;
a) Orderin+ that the estate of the ate ?steban 1aveana, 1r. be divided into two (2)
shares; one!haf for the paintiff and one!haf for defendant. From both shares sha
be equa" deducted the e.penses for the buria, mausoeum and reated
e.penditures. ,+ainst the share of defendants sha be char+ed the e.penses for
schoarship, awards, donations and the >)austia )oivio (da. de 1aveana 'emoria
Foundation6>
b) Birectin+ the defendant to submit an inventor" of the entire estate propert",
incudin+ but not imited to, specific items aread" mentioned in this decision and to
render an accountin+ of the propert" of the estate, within thirt" (/0) da"s from
receipt of this Aud+ment6 one!haf ($52) of this produce sha beon+ to paintiff6
c) Orderin+ defendant to pa" paintiff P7,000.00 as e.penses of iti+ation6
P$0,000.00 for and as attorne">s fees pus costs.
)O ORB?R?B. (pp. 32!3/, Roo)
*his case invoves the estate of the ate noveist, ?steban 1aveana, 1r., author of the
first post!war Fiipino nove E<ithout )eein+ the Bawn,E who died a bacheor,
without descendants, ascendants, brothers, sisters, nephews or nieces. 8is on"
survivin+ reatives are; ($) his materna aunt, petitioner Ceedonia )oivio, the
spinster haf!sister of his mother, )austia )oivio6 and (2) the private respondent,
Concordia 1aveana!(ianueva, sister of his deceased father, ?steban 1aveana, )r.
8e was a posthumous chid. 8is father died bare" ten ($0) months after his
marria+e in Becember, $%$# to )austia )oivio and four months before ?steban, 1r.
was born.
)austia and her sister, Ceedonia (dau+hter of ?n+racio )oivio and his second wife
1osefa FernandeC), a teacher in the Ioio Provincia 8i+h )choo, brou+ht up
?steban, 1r.
)austia brou+ht to her marria+e parapherna properties (various parces of and in
Caino+, Ioio covered b" 23 tites) which she had inherited from her mother,
Dre+oria Ceo, ?n+racio )oivio>s first wife (p. /27, Record), but no conAu+a
propert" was acquired durin+ her short!ived marria+e to ?steban, )r.
On October $$, $%7%, )austia died, eavin+ a her properties to her on" chid,
?steban, 1r., incudin+ a house and ot in =a PaC, Ioio Cit", where she, her son, and
her sister ived. In due time, the tites of a these properties were transferred in the
name of ?steban, 1r.
Burin+ his ifetime, ?steban, 1r. had, more than once, e.pressed to his aunt
Ceedonia and some cose friends his pan to pace his estate in a foundation to
honor his mother and to hep poor but deservin+ students obtain a coe+e education.
Hnfortunate", he died of a heart attac- on Februar" 2#,$%&& without havin+ set up
the foundation.
*wo wee-s after his funera, Concordia and Ceedonia ta-ed about what to do with
?steban>s properties. Ceedonia tod Concordia about ?steban>s desire to pace his
estate in a foundation to be named after his mother, from whom his properties came,
for the purpose of hepin+ indi+ent students in their schooin+. Concordia a+reed to
carr" out the pan of the deceased. *his fact was admitted b" her in her E'otion to
Reopen and5or Reconsider the Order dated ,pri /, $%&:E which she fied on 1u"
2&, $%&: in )pecia Proceedin+ 2o. 2730, where she stated;
3. *hat petitioner -new a aon+ the narrated facts in the immediate" precedin+
para+raph Ithat herein movant is aso the reative of the deceased within the third
de+ree, she bein+ the "oun+er sister of the ate ?steban 1aveana, father of the
decedent hereinJ, because prior to the filing of the petition they "petitioner
#eledonia Solivio and movant #oncordia $avellana% have agreed to ma&e the estate
of the decedent a foundation, besides the" have cose" -nown each other due to
their fiiation to the decedent and the" have been visitin+ each other>s house which
are not far awa" for (sic) each other. (p. 2/3, Record6 ?mphasis suppied.)
11
Pursuant to their a+reement that Ceedonia woud ta-e care of the proceedin+s
eadin+ to the formation of the foundation, Ceedonia in +ood faith and upon the
advice of her counse, fied on 'arch :, $%&& )p. Proceedin+ 2o. 2730 for her
appointment as specia administratri. of the estate of ?steban 1aveana, 1r. (?.h. 2).
=ater, she fied an amended petition (?.h. 7) pra"in+ that etters of administration
be issued to her6 that she be decared soe heir of the deceased6 and that after
pa"ment of a caims and rendition of inventor" and accountin+, the estate be
adAudicated to her (p. $$7, Roo).
,fter due pubication and hearin+ of her petition, as we as her amended petition,
she was decared soe heir of the estate of ?steban 1aveana, 1r. )he e.pained that
this was done for three reasons; ($) because the properties of the estate had come
from her sister, )austia )oivio6 (2) that she is the decedent>s nearest reative on his
mother>s side6 and (/) with her as soe heir, the disposition of the properties of the
estate to fund the foundation woud be faciitated.
On ,pri /, $%&:, the court (@ranch II, CFI, now @ranch 2/, R*C) decared her the
soe heir of ?steban, 1r. *hereafter, she sod properties of the estate to pa" the ta.es
and other obi+ations of the deceased and proceeded to set up the 'S(L)ST!(
S*L!+!* +D(. D, $(+,LL(-( .*)-D(T!*-' which she caused to be
re+istered in the )ecurities and ?.chan+e Commission on 1u" $&,$%:$ under Re+.
2o. 0$0002& (p. %:, Roo).
Four months ater, or on ,u+ust &, $%&:, Concordia 1aveana (ianueva fied a
motion for reconsideration of the court>s order decarin+ Ceedonia as Esoe heirE of
?steban, 1r., because she too was an heir of the deceased. On October 2&, $%&:, her
motion was denied b" the court for tardiness (pp. :0!:$, Record). Instead of
appeain+ the denia, Concordia fied on 1anuar" &, $%:0 (or one "ear and two
months ater), Civi Case 2o. $/20& in the Re+iona *ria Court of Ioio, @ranch
2#, entited '#oncordia $avellana- +illanueva v. #eledonia Solivio' for partition,
recover" of possession, ownership and dama+es.
On )eptember /, $%:3, the said tria court rendered Aud+ment in Civi Case 2o.
$/20&, in favor of Concordia 1aveana!(ianueva.
On Concordia>s motion, the tria court ordered the e.ecution of its Aud+ment
pendin+ appea and required Ceedonia to submit an inventor" and accountin+ of the
estate. In her motions for reconsideration of those orders, Ceedonia averred that the
properties of the deceased had aread" been transferred to, and were in the
possession of, the >)austia )oivio (da. de 1aveana Foundation.E *he tria court
denied her motions for reconsideration.
In the meantime, Ceedonia perfected an appea to the Court of ,ppeas (C, DR C(
2o. 0%0$0). On 1anuar" 2#, $%::, the Court of ,ppeas, ?eventh Bivision,
rendered Aud+ment affirmin+ the decision of the tria court in toto. 8ence, this
petition for review wherein she raised the foowin+ e+a issues;
$. whether @ranch 2# of the R*C of Ioio had Aurisdiction to entertain Civi Case
2o. $/20& for partition and recover" of Concordia (ianueva>s share of the estate
of ?steban 1aveana, 1r. even whie the probate proceedin+s ()p. Proc. 2o. 2730)
were sti pendin+ in @ranch 2/ of the same court6
2. whether Concordia (ianueva was prevented from intervenin+ in )p. Proc. 2o.
2730 throu+h e.trinsic fraud6
/. whether the decedent>s properties were subAect to reserva troncal in favor of
Ceedonia, his reative within the third de+ree on his mother>s side from whom he
had inherited them6 and
3. whether Concordia ma" recover her share of the estate after she had a+reed to
pace the same in the )austia )oivio (da. de 1aveana Foundation, and
notwithstandin+ the fact that conformab" with said a+reement, the Foundation has
been formed and properties of the estate have aread" been transferred to it.
I. The question of /urisdiction0
,fter a carefu review of the records, we find merit in the petitioner>s contention that
the Re+iona *ria Court, @ranch 2#, ac-ed Aurisdiction to entertain Concordia
(ianueva>s action for partition and recover" of her share of the estate of ?steban
1aveana, 1r. whie the probate proceedin+s ()p, Proc. 2o. 2730) for the settement
of said estate are sti pendin+ in @ranch 2/ of the same court, there bein+ as "et no
orders for the submission and approva of the administrati.>s inventor" and
accountin+, distributin+ the residue of the estate to the heir, and terminatin+ the
proceedin+s (p. /$, Record).
It is the order of distribution directin+ the deiver" of the residue of the estate to the
persons entited thereto that brin+s to a cose the intestate proceedin+s, puts an end
to the administration and thus far reieves the administrator from his duties
12
()antiesteban v. )antiesteban, #: Phi. /#&, Phiippine Commercia and Industria
@an- v. ?scoin, et a., =!2&:#0, 'arch 2%, $%&3, 7# )CR, 2##).
*he assaied order of 1ud+e ,di in )p. Proc. 2o. 2730 decarin+ Ceedonia as the
soe heir of the estate of ?steban 1aveana, 1r. did not to the end of the
proceedin+s. ,s a matter of fact, the ast para+raph of the order directed the
administratri. to Ehurr" up the settement of the estate.E *he pertinent portions of
the order are quoted beow;
2. ,s re+ards the second incident I'otion for Becaration of 'iss Ceedonia )oivio
as )oe 8eir, dated 'arch &, $%&:J, it appears from the record that despite the
notices posted and the pubication of these proceedin+s as required b" aw, no other
heirs came out to interpose an" opposition to the instant proceedin+. It further
appears that herein ,dministratri. is the on" caimant!heir to the estate of the ate
?steban 1aveana who died on Februar" 2#, $%&&.
Burin+ the hearin+ of the motion for decaration as heir on 'arch $&, $%&:, it was
estabished that the ate ?steban 1aveana died sin+e, without an" -nown issue, and
without an" survivin+ parents. 8is nearest reative is the herein ,dministratri., an
eder IsicJ sister of his ate mother who reared him and with whom he had awa"s
been ivin+ with IsicJ durin+ his ifetime.
. . . . . . . . .
2. 'iss Ceedonia )oivio, ,dministratri. of this estate, is hereb" decared as the
soe and e+a heir of the ate ?steban ). 1aveana, who died intestate on Februar"
2#, $%&& at =a PaC, Ioio Cit".
*he ,dministratri. is hereb" instructed to hurr" up with the settement of this estate
so that it can be terminated. (pp, $3!$#, Record)
In view of the pendenc" of the probate proceedin+s in @ranch $$ of the Court of
First Instance (now R*C, @ranch 2/), Concordia>s motion to set aside the order
decarin+ Ceedonia as soe heir of ?steban, and to have hersef (Concordia)
decared as co!heir and recover her share of the properties of the deceased, was
proper" fied b" her in )p. Proc. 2o. 2730. 8er remed" when the court denied her
motion, was to eevate the denia to the Court of ,ppeas for review on certiorari.
8owever, instead of avaiin+ of that remed", she fied more than one "ear ater, a
separate action for the same purpose in @ranch 2# of the court. <e hod that the
separate action was improper" fied for it is the probate court that has e1clusive
Aurisdiction to ma-e a Aust and e+a distribution of the estate.
In the interest of order" procedure and to avoid confusin+ and confictin+
dispositions of a decedent>s estate, a court shoud not interfere with probate
proceedin+s pendin+ in a co!equa court. *hus, did we rue in 2uilas v. $udge of the
#ourt of .irst !nstance of 3ampanga, L-45567, $anuary 89, 96:4, 3/ )CR, $$$,
$$&, where a dau+hter fied a separate action to annu a proAect of partition e.ecuted
between her and her father in the proceedin+s for the settement of the estate of her
mother;
*he probate court oses Aurisdiction of an estate under administration on" after the
pa"ment of a the debts and the remainin+ estate deivered to the heirs entited to
receive the same. *he finait" of the approva of the proAect of *he probate court, in
the e.ercise of its Aurisdiction to ma-e distribution, has power to determine the
proportion or parts to which each distributed is entited. ... *he power to determine
the e+ait" or ie+ait" of the testamentar" provision is inherent in the Aurisdiction
of the court ma-in+ a Aust and e+a distribution of the inheritance. ... *o hod that a
separate and independent action is necessar" to that effect, woud be contrar" to the
+enera tendenc" of the Aurisprudence of avoidin+ mutipicit" of suits6 and is
further, e.pensive, diator", and impractica. ('arceino v. ,ntonio, &0 Phi. /::)
, Audicia decaration that a certain person is the on" heir of the decedent is
e.cusive" within the ran+e of the administratri. proceedin+s and can not proper"
be made an independent action. (=itam v. ?spiritu, $00 Phi. /#3)
, separate action for the decaration of heirs is not proper. (Pimente v. Paanca, 7
Phi. 3/#)
partition b" itsef aone does not terminate the probate proceedin+ (*imbo v. Cano,
$ )CR, $2&$, $2&#, =!$7337, ,pri 2%, $%#$6 )i+uion+ v. *ecson, :% Phi. pp. 2:,
/0). ,s on+ as the order of the distribution of the estate has not been compied with,
the probate proceedin+s cannot be deemed cosed and terminated )i+uion+ v.
*ecson, supra)6 because a Audicia partition is not fina and concusive and does not
prevent the heirs from brin+in+ an action to obtain his share, provided the
prescriptive period therefore has not eapsed ('ari v. @oniia, :/ Phi. $/&). The
better practice, however, for the heir who has not received his share, is to demand
his share through a proper motion in the same probate or administration
proceedings, or for reopening of the probate or administrative proceedings if it had
already been closed, and not through an independent action, which woud be tried
13
b" another court or 1ud+e which ma" thus reverse a decision or order of the probate
or intestate court aread" fina and e.ecuted and re!shuffe properties on+ a+o
distributed and disposed of. (Ramos v. OrtuCar, :% Phi. &/0, &3$!&326 *imbo v.
Cano, supra; 1in+co v. BauC, =!7$0&, ,pri 23, $%7/, %2 Phi. $0:26 Roman
Cathoic v. ,+ustines, =!$3&$0, 'arch 2%, $%#0, $0& Phi. 377, 3#0!3#$6 ?mphasis
suppied)
In Litam et al., v. <ivera, $00 Phi. /#3, where despite the pendenc" of the specia
proceedin+s for the settement of the intestate estate of the deceased Rafae =itam
the paintiffs!appeants fied a civi action in which the" caimed that the" were the
chidren b" a previous marria+e of the deceased to a Chinese woman, hence, entited
to inherit his one!haf share of the conAu+a properties acquired durin+ his marria+e
to 'arcosa Rivera, the tria court in the civi case decared that the paintiffs!
appeants were not chidren of the deceased, that the properties in question were
parapherna properties of his wife, 'arcosa Rivera, and that the atter was his on"
heir. On appea to this Court, we rued that Esuch decarations (that 'arcosa Rivera
was the on" heir of the decedent) is improper, in Civi Case 2o. 20&$, it being
within the e1clusive competence of the court in Special 3roceedings -o. 978:, in
which it is not as "et, in issue, and, wi not be, ordinari", in issue unti the
presentation of the proAect of partition. (p. /&:).
8owever, in the Duias case, supra, since the estate proceedin+s had been cosed
and terminated for over three "ears, the action for annument of the proAect of
partition was aowed to continue. Considerin+ that in the instant case, the estate
proceedin+s are sti pendin+, but nonetheess, Concordia had ost her ri+ht to have
hersef decared as co!heir in said proceedin+s, <e have opted i-ewise to proceed
to discuss the merits of her caim in the interest of Austice.
*he orders of the Re+iona *ria Court, @ranch 2#, in Civi Case 2o. $/20& settin+
aside the probate proceedin+s in @ranch 2/ (former" @ranch $$) on the +round of
e.trinsic fraud, and decarin+ Concordia (ianueva to be a co!heir of Ceedonia to
the estate of ?steban, 1r., orderin+ the partition of the estate, and requirin+ the
administratri., Ceedonia, to submit an inventor" and accountin+ of the estate, were
improper and officious, to sa" the east, for these matters he within the e.cusive
competence of the probate court.
II. The question of e1trinsic fraud0
<as Concordia prevented from intervenin+ in the intestate proceedin+s b" e1trinsic
fraud empo"ed b" Ceedonia9 It is noteworth" that e.trinsic fraud was not alleged
in Concordia>s ori+ina compaint in Civi Case 2o. $/20&. It was on" in her
amended compaint of 'arch #, $%:0, that e.trinsic fraud was ae+ed for the first
time.
?.trinsic fraud, as a +round for annument of Aud+ment, is an" act or conduct of the
prevaiin+ part" which prevented a fair submission of the controvers" (Francisco v.
Bavid, /: O.D. &$3). , fraud >which prevents a part" from havin+ a tria or
presentin+ a of his case to the court, or one which operates upon matters
pertainin+, not to the Aud+ment itsef, but to the manner b" which such Aud+ment
was procured so much so that there was no fair submission of the controvers". For
instance, if throu+h frauduent machination b" one Ihis adversar"J, a iti+ant was
induced to withdraw his defense or was prevented from presentin+ an avaiabe
defense or cause of action in the case wherein the Aud+ment was obtained, such that
the a++rieved part" was deprived of his da" in court throu+h no faut of his own, the
equitabe reief a+ainst such Aud+ment ma" be avaied of. (Fatco v. )uma+ui, 33#2/!
R, 1u" /$, $%&$). (cited in Phiippine =aw Bictionar", $%&2 ?d. b" 'oreno6 (area
v. (ianueva, et a., %# Phi. 23:)
, Aud+ment ma" be annued on the +round of e.trinsic or coatera fraud, as
distin+uished from intrinsic fraud, which connotes an" frauduent scheme e.ecuted
b" a prevaiin+ iti+ant >outside the tria of a case a+ainst the defeated part", or his
a+ents, attorne"s or witnesses, whereb" said defeated part" is prevented from
presentin+ fu" and fair" his side of the case. ... *he overridin+ consideration is
that the frauduent scheme of the prevaiin+ iti+ant prevented a part" from havin+
his da" in court or from presentin+ his case. *he fraud, therefore, is one that affects
and +oes into the Aurisdiction of the court. (=ibudan v. Di, =!2$$#/, 'a" $&, $%&2,
37 )CR, $&, 2&!2%6 )terin+ Investment Corp. v. RuiC, =!/0#%3, October /$, $%#%,
/0 )CR, /$:, /2/)
*he char+e of e.trinsic fraud is, however, unwarranted for the foowin+ reasons;
$. Concordia was not unaware of the specia proceedin+ intended to be fied b"
Ceedonia. )he admitted in her compaint that she and Ceedonia had a+reed that the
atter woud Einitiate the necessar" proceedin+E and pa" the ta.es and obi+ations of
the estate. *hus para+raph # of her compaint ae+ed;
#. ... for the purpose of faciitatin+ the settement of the estate of the ate ?steban
1aveana, 1r. at the owest possibe cost and the east effort, the plaintiff and the
defendant agreed that the defendant shall initiate the necessary proceeding, cause
the pa"ment of ta.es and other obi+ations, and to do ever"thin+ ese required b"
14
aw, and thereafter, secure the partition of the estate between her and the paintiff,
Iathou+h Ceedonia denied that the" a+reed to partition the estate, for their
a+reement was to pace the estate in a foundation.J (p. 2, Record6 emphasis
suppied)
?vident", Concordia was not prevented from intervenin+ in the proceedin+s. )he
sta"ed awa" by choice. @esides, she -new that the estate came e.cusive" from
?steban>s mother, )austia )oivio, and she had a+reed with Ceedonia to pace it in
a foundation as the deceased had panned to do.
2. *he probate proceedin+s are proceedin+s in rem. 2otice of the time and pace of
hearin+ of the petition is required to be pubished ()ec. /, Rue &# in reation to )ec.
/, Rue &%, Rues of Court). 2otice of the hearin+ of Ceedonia>s ori+ina petition
was pubished in the E(isa"an *ribuneE on ,pri 27, 'a" 2 and %, $%&& (?.h 3, p.
$%&, Record). )imiar", notice of the hearin+ of her amended petition of 'a" 2#,
$%&& for the settement of the estate was, b" order of the court, pubished in
E@a+on+ Kasana+E (2ew =i+ht) issues of 'a" 2&, 1une / and $0, $%&& (pp. $:2!
/07, Record). *he pubication of the notice of the proceedin+s was constructive
notice to the whoe word. Concordia was not deprived of her ri+ht to intervene in
the proceedin+s for she had actua, as we as constructive notice of the same. ,s
pointed out b" the probate court in its order of October 2&, $%&:;
... . *he move of Concordia 1aveana, however, was fied about five months after
Ceedonia )oivio was decared as the soe heir. ... .
Considerin+ that this proceedin+ is one in rem and had been du" pubished as
required b" aw, despite which the present movant on" came to court now, then she
is +uit" of aches for seepin+ on her ae+ed ri+ht. (p. 22, Record)
*he court noted that Concordia>s motion did not comp" with the requisites of a
petition for reief from Aud+ment nor a motion for new tria.
*he rue is stated in 3% Corpus 1uris )ecundum :0/0 as foows;
<here petition was sufficient to invo-e statutor" Aurisdiction of probate court and
proceeding was in rem no subsequent errors or irre+uarities are avaiabe on
coatera attac-. (@edwe v. Bean $/2 )o. 20)
Ceedonia>s ae+ation in her petition that she was the soe heir of ?steban within the
third de+ree on his mother=s side was not fase. 'oreover, it was made in +ood faith
and in the honest beief that because the properties of ?steban had come from his
mother, not his father, she, as ?steban>s nearest survivin+ reative on his mother>s
side, is the ri+htfu heir to them. It woud have been sef!defeatin+ and inconsistent
with her caim of sole heirship if she stated in her petition that Concordia was her
co!heir. 8er omission to so state did not constitute e.trinsic fraud.
Faiure to discose to the adversar", or to the court, matters which woud defeat
one>s own caim or defense is not such e.trinsic fraud as wi Austif" or require
vacation of the Aud+ment. (3% C.1.). 3:%, citin+ Foun+ v. Foun+, 2 )? 2d #226 First
2ationa @an- L *rust Co. of Kin+ Cit" v. @owman, $7 )< 2d :326 Price v. )mith,
$0% )< 2d $$33, $$3%)
It shoud be remembered that a petition for administration of a decedent>s estate ma"
be fied b" an" Einterested personE ()ec. 2, Rue &%, Rues of Court). *he fiin+ of
Ceedonia>s petition did not precude Concordia from fiin+ her own.
III. *n the question of reserva troncal0
<e find no merit in the petitioner>s ar+ument that the estate of the deceased was
subAect to reserva troncal and that it pertains to her as his on" reative within the
third de+ree on his mother>s side. *he reserva troncal provision of the Civi Code is
found in ,rtice :%$ which reads as foows;
,R*. :%$. *he ascendant who inherits from his descendant an" propert" which the
atter ma" have acquired b" +ratuitous tite from another ascendant, or a brother or
sister, is obi+ed to reserve such propert" as he ma" have acquired b" operation of
aw for the benefit of reatives who are within the third de+ree and who beon+ to
the ine from which said propert" came.
*he persons invoved in reserva troncal are;
$. *he person obi+ed to reserve is the reservor "reservista%4the ascendant who
inherits b" operation of aw propert" from his descendants.
2. *he persons for whom the propert" is reserved are the reservees "reservatarios%4
reatives within the third de+ree counted from the descendant "propositus%, and
beon+in+ to the ine from which the propert" came.
15
/. *he propositus4the descendant who received b" +ratuitous tite and died without
issue, ma-in+ his other ascendant inherit b" operation of aw. (p. #%2, Civi =aw b"
Padia, (o. II, $%7# ?d.)
Cear", the propert" of the deceased, ?steban 1aveana, 1r., is not reservabe
propert", for ?steban, 1r. was not an ascendant, but the descendant of his mother,
)austia )oivio, from whom he inherited the properties in question. *herefore, he
did not hod his inheritance subAect to a reservation in favor of his aunt, Ceedonia
)oivio, who is his reative within the third de+ree on his mother>s side. *he reserva
troncal appies to properties inherited b" an ascendant from a descendant who
inherited it from another ascendant or % brother or sister. It does not app" to
propert" inherited b" a descendant from his ascendant, the reverse of the situation
covered b" ,rtice :%$.
)ince the deceased, ?steban 1aveana, 1r., died without descendants, ascendants,
ie+itimate chidren, survivin+ spouse, brothers, sisters, nephews or nieces, what
shoud app" in the distribution of his estate are ,rtices $00/ and $00% of the Civi
Code which provide;
,R*. $00/. If there are no descendants, ascendants, ie+itimate chidren, or a
survivin+ spouse, the coatera reatives sha succeed to the entire estate of the
deceased in accordance with the foowin+ artices.
,R*. $00%. )houd there be neither brothers nor sisters, nor chidren of brothers or
sisters, the other coatera reatives sha succeed to the estate.
*he atter sha succeed without distinction of ines or preference amon+ them b"
reason of reationship b" the whoe bood.
*herefore, the Court of ,ppeas correct" hed that;
@oth paintiff!appeee and defendant!appeant bein+ reatives of the decedent
within the third de+ree in the coatera ine, each, therefore, sha succeed to the
subAect estate >without distinction of ine or preference amon+ them b" reason of
reationship b" the whoe bood,> and is entited one!haf ($52) share and share ai-e
of the estate. (p. 7&, Roo)
I(. The question of #oncordia=s one-half share0
8owever, inasmuch as Concordia had a+reed to deiver the estate of the deceased to
the foundation in honor of his mother, )austia )oivio (da. de 1aveana (from
whom the estate came), an a+reement which she ratified and confirmed in her
E'otion to Reopen and5or Reconsider Order dated ,pri /, $%&:E which she fied in
)p. Proceedin+ 2o. 2730;
3. *hat ... prior to the filing of the petition they "petitioner #eledonia Solivio and
movant #oncordia $avellana% have agreed to ma&e the estate of the decedent a
foundation, besides the" have cose" -nown each other due to their fiiation to the
decedent and the" have been visitin+ each other>s house which are not far awa" for
(sic) each other. (p. 2/3, Record6 ?mphasis suppied)
she is bound b" that a+reement. It is true that b" that a+reement, she did not waive
her inheritance in favor of Ceedonia, but she did a+ree to pace a of ?steban>s
estate in the E)austia )oivio (da. de 1aveana FoundationE which ?steban, 1r.,
durin+ his ifetime, panned to set up to honor his mother and to finance the
education of indi+ent but deservin+ students as we.
8er admission ma" not be ta-en i+ht" as the ower court did. @ein+ a Audicia
admission, it is concusive and no evidence need be presented to prove the
a+reement (Cunanan v. ,mparo, :0 Phi. 22&6 Dranada v. Phiippine 2ationa @an-,
=!20&37, )ept. 2, $%##, $: )CR, $6 )ta. ,na v. 'aiwat, =!2/02/, ,u+. /$, $%#:,
23 )CR, $0$:6 Peope v. ?ncipido, D.R.&00%$, Bec. 2%, $%:#, $3# )CR, 3&:6 and
Rodias v. )andi+anba"an, D.R. 7:#72, 'a" 20, $%::, $#$ )CR, /3&).
*he admission was never withdrawn or impu+ned b" Concordia who, si+nificant",
did not even testif" in the case, athou+h she coud have done so b" deposition if she
were supposed" indisposed to attend the tria. On" her husband, 2arciso, and son!
in!aw, 1uanito Bomin, active" participated in the tria. 8er husband confirmed the
a+reement between his wife and Ceedonia, but he endeavored to diute it b"
ae+in+ that his wife did not intend to +ive a, but on" one!haf, of her share to the
foundation (p. /2/, Record).
*he records show that the E)austia )oivio (da. de 1aveana FoundationE was
estabished and du" re+istered in the )ecurities and ?.chan+e Commission under
Re+. 2o. 0$0002& for the foowin+ principa purposes;
$. *o provide for the estabishment and5or settin+ up of schoarships for such
deservin+ students as the @oard of *rustees of the Foundation ma" decide of at east
16
one schoar each to stud" at <est (isa"as )tate Coe+e, and the Hniversit" of the
Phiippines in the (isa"as both ocated in Ioio Cit".
2. *o provide a schoarship for at east one schoar for )t. Cements Redemptorist
Communit" for a deservin+ student who has the rei+ious vocation to become a
priest.
/. *o foster, deveop, and encoura+e activities that wi promote the advancement
and enrichment of the various fieds of educationa endeavors, especia" in iterar"
arts. )choarships provided for b" this foundation ma" be named after its benevoent
benefactors as a to-en of +ratitude for their contributions.
3. *o direct or underta-e surve"s and studies in the communit" to determine
communit" needs and be abe to aeviate partia" or tota" said needs.
7. *o maintain and provide the necessar" activities for the proper care of the
)oivio!1aveana mausoeum at Christ the Kin+ 'emoria Par-, 1aro, Ioio Cit",
and the 1aveana 'emoria at the <est (isa"as )tate Coe+e, as a to-en of
appreciation for the contribution of the estate of the ate ?steban ). 1aveana which
has made this foundation possibe. ,so, in perpetuation of his Roman Cathoic
beiefs and those of his mother, Dre+orian masses or their equivaents wi be
offered ever" Februar" and October, and Requiem masses ever" Februar" 27th and
October th, their death anniversaries, as part of this provision.
#. *o receive +ifts, e+acies, donations, contributions, endowments and financia
aids or oans from whatever source, to invest and reinvest the funds, coect the
income thereof and pa" or app" on" the income or such part thereof as sha be
determined b" the *rustees for such endeavors as ma" be necessar" to carr" out the
obAectives of the Foundation.
&. *o acquire, purchase, own, hod, operate, deveop, ease, mort+a+e, ped+e,
e.chan+e, se, transfer, or otherwise, invest, trade, or dea, in an" manner permitted
b" aw, in rea and persona propert" of ever" -ind and description or an" interest
herein.
:. *o do and perform a acts and thin+s necessar", suitabe or proper for the
accompishments of an" of the purposes herein enumerated or which sha at an"
time appear conducive to the protection or benefit of the corporation, incudin+ the
e.ercise of the powers, authorities and attributes concerned upon the corporation
or+aniCed under the aws of the Phiippines in +enera, and upon domestic
corporation of i-e nature in particuar. (pp. %!$0, Roo)
,s ae+ed without contradiction in the petition> for review;
*he Foundation be+an to function in 1une, $%:2, and three (/) of its ei+ht ?steban
1aveana schoars +raduated in $%:#, one ($) from HP( +raduated Cum =aude and
two (2) from <()H +raduated with honors6 one was a Cum =aude and the other
was a recipient of =a+os =opeC award for teachin+ for bein+ the most outstandin+
student teacher.
*he Foundation has four (3) hi+h schoo schoars in Duiso @aran+a" 8i+h )choo,
the site of which was donated b" the Foundation. *he )choo has been seected as
the Piot @aran+a" 8i+h )choo for Re+ion (I.
*he Foundation has a specia schoar, Fr. ?bert (asqueC, who woud be ordained
this "ear. 8e studied at )t. Francis Gavier 'aAor Re+iona )eminar" at Bavao Cit".
*he Foundation i-ewise is a member of the Redemptorist ,ssociation that +ives
"ear" donations to hep poor students who want to become Redemptorist priests or
brothers. It +ives "ear" awards for Creative writin+ -nown as the ?steban 1aveana
,ward.
Further, the Foundation had constructed the ?steban ). 1aveana 'uti!purpose
Center at the <est (isa"as )tate Hniversit" for teachers> and students> use, and has
i-ewise contributed to rei+ious civic and cutura fund!raisin+ drives, amon+st
other>s. (p. $0, Roo)
8avin+ a+reed to contribute her share of the decedent>s estate to the Foundation,
Concordia is obi+ated to honor her commitment as Ceedonia has honored hers.
<8?R?FOR?, the petition for review is +ranted. *he decision of the tria court and
the Court of ,ppeas are hereb" )?* ,)IB?. Concordia 1. (ianueva is decared an
heir of the ate ?steban 1aveana, 1r. entited to one!haf of his estate. 8owever,
comformab" with the a+reement between her and her co!heir, Ceedonia )oivio,
the entire estate of the deceased shoud be conve"ed to the E)austia )oivio (da. de
1avaana Foundation,E of which both the petitioner and the private respondent sha
be trustees, and each sha be entited to nominate an equa number of trustees to
constitute the @oard of *rustees of the Foundation which sha administer the same
for the purposes set forth in its charter. *he petitioner, as administratri. of the estate,
17
sha submit to the probate court an inventor" and accountin+ of the estate of the
deceased preparator" to terminatin+ the proceedin+s therein.
18
G.R. No. L-14837 No8e9ber 13, 1919
ENARNAION FLORENTINO, ET AL., paintiffs!appeants,
vs.
"ERE5ES FLORENTINO, ET AL., defendants!appeees.
On 1anuar" $&, $%$:, counse for ?ncarnacion (to+ether with her husband )imeon
)errano), Dabrie, 'a+daena, Ramon, 'i+ue, (ictorino, and ,ntonino of the
surname Forentino6 for 'i+ue Forentino, +uardian ad litem of the minor Rosario
Forentino6 for ?u+enio )in+son, the father and +uardian ad litem of ?miia, 1esus,
=ourdes, Caridad, and Boores of the surname )in+son " Forentino6 and for
?u+enio )in+son, +uardian of the minors 1ose and ,suncion Forentino, fied a
compaint in the Court of First Instance of Iocos )ur, a+ainst 'ercedes Forentino
and her husband, ae+in+ as foows;
*hat ,poonio Isabeo Forentino II married the first time ,ntonia FaC de =eon6 that
durin+ the marria+e he be+ot nine chidren caed, 1ose, 1uan, 'aria, ?ncarnacion,
Isabe, ?spirita, Dabrie, Pedro, and 'a+daena of the surname Forentino " de
=eon6 that on becomin+ a widower he married the second time )everina FaC de
=eon with whom he had two chidren, 'ercedes and ,poonio III of the surname
Forentino " de =eon6 that ,poonio Isabeo Forentino II died on Februar" $/,
$:%06 that he was survived b" his second wife )everina FaC de =eon and the ten
chidren first above mentioned6 that his eeventh son, ,poonio III, was born on the
foowin+ 3th of 'arch $:%0.
*hat of the deceased ,poonio Isabeo>s aforementioned eeven chidren, $uan,
>aria and !sabel died sin+e, without leaving any ascendants or descendants6 that
Ramon, 'i+ue, (ictorino, ,ntonio, and Rosario are the e+itimate chidren of the
deceased 1ose Forentino who was one of the chidren of the deceased ,poonio
Isabeo6 that ?miia, 1esus, =ourdes, Caridad, and Boores are the e+itimate
chidren of ?spirita Forentino, now deceased, and her husband ?u+enio )in+son6
that 1ose and ,suncion are the chidren of Pedro Forentino, another son of the
deceased ,poonio Isabeo Forentino.
*hat on 1anuar" $& and Februar" $/, $:%0, ,poonio Isabeo Forentino e.ecuted a
wi before the notar" pubic of Iocos )ur, institutin+ as his universa heirs his
aforementioned ten chidren, the posthumos ,poonio III and his widow )everina
FaC de =eon6 that he decared, in one of the para+raphs of said wi, a his propert"
shoud be divided amon+ a of his chidren of both marria+es.
*hat, in the partition of the said testator>s estate, there was +iven to ,poonio
Forentino III, his posthumos son, the propert" mar-ed with the etters ,, @, C, B,
?, and F in the compaint, a +od rosar", pieces of +od, of siver and of tabe
service, ivestoc-, paa", some persona propert" and other obAects mentioned in the
compaint.
*hat ,poonio Forentino III, the posthumos son of the second marria+e, died in
$:%$6 that his mother, )everina FaC de =eon, succeeded to a his propert" described
in the compaint6 that the widow, )everina FaC de =eon died on 2ovember $:, $%0:,
eavin+ a wi institutin+ as her universa heiress her on" ivin+ dau+hter, 'ercedes
Forentino6 that, as such heir, said dau+hter too- possession of a the propert" eft at
the death of her mother, )everina FaC de =eon6 that amon+ same is incuded the
propert", described in the compaint, which the said )everina FaC de =eon inherited
from her deceased son, the posthumos ,poonio, as reservabe propert"6 that, as a
reservist, the heir of the said 'ercedes Forentino deceased had been +atherin+ for
hersef aone the fruits of ands described in the compaint6 that each and ever" one
of the parties mentioned in said compaint is entited to one!seventh of the fruits of
the reservabe propert" described therein, either b" direct participation or b"
representation, in the manner mentioned in para+raph % of the compaint.
*hat severa times the paintiffs have, in an amicabe manner, as-ed the defendants
to deiver their correspondin+ part of the reservabe propert"6 that without an"
Austifiabe motive the defendants have refused and do refuse to deiver said propert"
or to pa" for its vaue6 that for nine "ears 'ercedes Forentino has been receivin+,
as rent for the ands mentioned, /#0 bundes of paa" at fift" pesos per bunde and
%0 bundes of corn at four pesos per bunde6 that thereb" the paintiffs have suffered
dama+es in the sum of fifteen thousand four hundred and twent"!ei+ht pesos and
fift"!ei+ht centavos, in addition to three hundred and ei+ht pesos and fift"!ei+ht
centavos for the vaue of the fruits not +athered, of one thousand pesos (P$,000) for
the unAustifiabe retention of the aforementioned reservabe propert" and for the
e.penses of this suit. <herefore the" pra" it be decared that a the fore+oin+
propert" is reservabe propert"6 that the paintiffs had and do have a ri+ht to the
same, in the quantit" and proportion mentioned in the aforementioned para+raph %
of the compaint6 that the defendants 'ercedes Forentino and her husband be
ordered to deiver to the paintiffs their share of the propert" in question, of the
paa" and of the corn above mentioned, or their vaue6 and that the" be condemned
to pa" the paintiffs the sum of one thousand pesos (P$,000) to+ether with the costs
of this instance.
*o the precedin+ compaint counse for the defendants demurred, ae+in+ that the
cause of action is based on the obi+ation of the widow )everina FaC de =eon to
19
reserve the propert" she inherited from her deceased son ,poonio Forentino " de
=eon who, in turn, inherited same from his father ,poonio Isabeo Forentino6 that,
there bein+ no ae+ation to the contrar", it is to be presumed that the widow
)everina FaC de =eon did not remarr" after the death of this husband nor have an"
natura chid6 that the ri+ht caimed b" the paintiffs is not that mentioned in artice
%#: and the foowin+ artices, but that estabished in artice :$$ of the Civi Code6
that the obAect of the provisions of the aforementioned artices is to avoid the
transfer of said reservabe propert" to those e.traneous to the fami" of the owner
thereof6 that if the propert" inherited b" the widow )everina FaC de =eon from her
deceased son ,poonio Forentino " FaC de =eon (propert" which ori+inated from
his father and her husband) has a passed into the hands of the defendant, 'ercedes
Forentino " ?ncarnacion, a dau+hter of the common ancestor>s second marria+e
(said ,poonio Isabeo Forentino with the deceased )everina FaC de =eon) it is
evident that the propert" eft at the death of the posthumos son ,poonio Forentino
" FaC de =eon did not pass after the death of his mother )everina, his e+itimate
heirs as an ascendant, into the hands of stran+ers6 that said propert" havin+ been
inherited b" 'ercedes Forentino " ?ncarnacion from her mother ()everina), artice
:$$ of the Civi Code is absoute" inappicabe to the present case because, when
the defendant 'ercedes, b" operation aw, entered into and succeeded to, the
possession, of the propert" awfu" inherited from her mother )everina FaC de
=eon, said propert" had, whie in the possession of her mother, ost the character of
reservabe propert" 4 there bein+ a e+itimate dau+hter of )everina FaC de =eon
with the ri+ht to succeed her in a her ri+hts, propert" and actions6 that the restraints
of the aw whereb" said propert" ma" not passed into the possession of stran+ers are
void, inasmuch as the said widow had no obi+ation to reserve same, as 'ercedes
Forentino is a forced heiress of her mother )everina FaC de =eon6 that, in the
present case, there is no propert" reserved for the paintiffs since there is a forced
heiress, entited to the propert" eft b" the death of the widow )everina FaC de =eon
who never remarried6 that the obi+ation to reserve is secondar" to the dut" of
respectin+ the e+itime6 that in the instant case, the widow )everina FaC de =eon
was in dut" bound to respect the e+itime of her dau+hter 'ercedes the defendant6
that her obi+ation to reserve the propert" coud not be fufied to the preAudice of
the e+itime which beon+s to her forced heiress, citin+ in support of these
statements the decision of the supreme court of )pain of 1anuar" 3, $%$$6 that,
fina", the appication of artice :$$ of the Civi Code in favor of the paintiffs
woud presuppose the e.cusion of the defendant from here ri+ht to succeed
e.cusive" to a the propert", ri+hts and actions eft b" her e+itimate mother,
athou+h the said defendant has a better ri+ht than the paintiffs6 and that there
woud be inAustice if the propert" caimed be adAudicated to the paintiffs, as we as
vioation of section 7 of the 1ones =aw which invaidates an" aw deprivin+ an"
person of an equa protection. <herefore the" pra"ed that the demurrer be
sustained, with costs a+ainst the paintiffs.
,fter the hearin+ of the demurrer, on ,u+ust 22, $%$:, the Aud+e absoved the
defendants from the compaint and condemned the paintiffs to pa" the costs.
Counse for the paintiffs e.cepted to this order, moved to vacate it and to +rant
them a new tria6 said motion was overrued6 the paintiffs e.pected thereto and fied
the correspondin+ bi of e.ceptions which was aowed, certified and forwarded to
the cer- of this court.
On appea the tria Aud+e sustained the demurrer of the defendants to the compaint
of the paintiffs, but, instead of orderin+ the atter to amend their compaint within
the period prescribed b" the rues 4 undoubted" beievin+ that the paintiffs coud
not ater nor chan+e the facts constitutin+ the cause of action, and that, as both
parties were a+reed as to the facts ae+ed in the compaint as we as in the
demurrer, ever" question reduced itsef to one of the aw, aread" submitted to the
decision of the court 4 the said Aud+e, disre+ardin+ the ordinar" procedure
estabished b" aw, decided the case b" absovin+ the defendants from the compaint
and b" condemnin+ the paintiffs to pa" the costs of the instance.
*here certain" was no rea tria, inasmuch as the defendants, instead of answerin+
the compaint of the paintiffs, confined themseves to fiin+ a demurrer based on the
+round that the facts ae+ed in the compaint do not constitute a cause of action.
8owever, the Aud+e preferred to absove the defendants, thereb" ma-in+ an end to
the cause, instead of dismissin+ the same, because undoubted" he beieved, in view
of the controvers" between the parties, that the ar+uments adduced to support the
demurrer woud be the same which the defendants woud ae+e in their answer 4
those deain+ with a mere question of aw which the courts woud have to decide 4
and that, the demurrer havin+ been sustained, if the paintiffs shoud insist 4 the"
coud do no ess 4 upon ae+in+ the same facts as those set out in their compaint
and if another demurrer were afterwards set up, he woud be obi+ed to dismiss said
compaint with costs a+ainst the paintiffs 4 in spite of bein+ undoubted"
convinced in the instant case that the paintiffs absoute" ac- the ri+ht to brin+ the
action stated in their compaint.
@ein+ of the opinion that the emendation of the indicated defects is not necessar" 4
as in this case what has been done does not preAudice the parties 4 the appeate
court wi now proceed to decide the suit accordin+ to its merits, as found in the
record and to the e+a provisions appicabe to the question of aw in controvers" so
20
that unnecessar" dea" and +reater e.pense ma" be avoided, inasmuch as, even if a
the ordinar" proceedin+s be foowed, the suit woud be subsequent" decided in the
manner and terms that it is now decided in the opinion thou+htfu" and
conscientious" formed for its determination.
In order to decide whether the paintiffs are or are not entited to invo-e, in their
favor, the provisions of artice :$$ of the Civi Code, and whether the same artice is
appicabe to the question of aw presented in this suit, it is necessar" to determine
whether the propert" enumerated in para+raph 7 of the compaint is of the nature of
reservabe propert"6 and if so, whether in accordance with the provision of the Civi
Code in artice :$$, )everina FaC de =eon (the widow of the deceased ,poonio
Isabeo Forentino) who inherited said propert" from her son ,poonio Forentino
III (born after the death of his father ,poonio Isabeo) had the obi+ation to
preserve and reserve same for the reatives, within the third de+ree, of her
aforementioned deceased son ,poonio III.
*he above mentioned artice reads;
,n" ascendant who inherits from his descendant an" propert" acquired b" the atter
+ratuitous" from some other ascendant, or from a brother or sister, is obi+ed to
reserve such of the propert" as he ma" have acquired b" operation of aw for the
benefit of reatives within the third de+ree beon+in+ to the ine from which such
propert" came.
Burin+ the marria+e of ,poonio Isabeo Forentino II and )everina FaC de =eon
two chidren were born, name" the defendant 'ercedes Forentino and ,poonio
Forentino III (born after the death of his father). ,t the death of ,poonio Isabeo
Forentino under a wi, his eeven chidren succeeded to the inheritance he eft, one
of whom, the posthumos son ,poonio III, was +iven, as his share, the
aforementioned propert" enumerated in the compaint. In $:%$ the said posthumos
son ,poonio Forentino III died and was succeeded b" his e+itimate mother
)everina FaC de =eon, who inherited the propert" he eft and who on d"in+,
2ovember $:, $%0:, instituted b" wi as her soe heiress her survivin+ dau+hter,
'ercedes Forentino, the defendant herein, who too- possession of a propert" eft
b" her father, same constitutin+ the inheritance. Incuded in said inheritance is the
propert", specified in b" the posthumos son ,poonio Forentino III from his father
,poonio Isabeo Forentino, and which, at the death of the said posthumos son, had
in turn been inherited b" his mother, )everina FaC de =eon. ?ven if )everina eft in
her wi said propert", to+ether with her own, to her on" dau+hter and forced
heiress, 'ercedes Forentino, nevertheess this propert" had not ost its reservabe
nature inasmuch as it ori+inated from the common ancestor of the iti+ants,
,poonio Isabeo6 was inherited b" his son ,poonio III6 was transmitted b" same
(b" operation of aw) to his e+itimate mother and ascendant, )everina FaC de =eon.
*he posthumos son, ,poonio Forentino III, acquired the propert", now caimed b"
his brothers, b" a ucrative tite or b" inheritance from his aforementioned e+itimate
father, ,poonio Isabeo Forentino II. ,thou+h said propert" was inherited b" his
mother, )everina FaC de =eon, nevertheess, she was in dut" bound, accordin+ to
artice :$$ of the Civi Code, to reserve the propert" thus acquired for the benefit of
the reatives, within the third de+ree, of the ine from which such propert" came.
,ccordin+ to the provisions of aw, ascendants do not inherit the reservabe
propert", but its enAo"ment, use or trust, mere" for the reason that said aw imposes
the obi+ation to reserve and preserve same for certain desi+nated persons who, on
the death of the said ascendants reservists, (ta-in+ into consideration the nature of
the ine from which such propert" came) acquire the ownership of said propert" in
fact and b" operation of aw in the same manner as forced heirs (because they are
also such) 4 said propert" reverts to said ine as on+ as the aforementioned
persons who, from the death of the ascendant!reservists, acquire in fact the ri+ht of
reservatarios (person for whom propert" is reserved), and are reatives, within the
third de+ree, of the descendant from whom the reservabe propert" came.
,n" ascendant who inherits from his descendant an" propert", whie there are
ivin+, within the third de+ree, reatives of the atter, is nothin+ but a ife
usufructuar" or a fiduciar" of the reservabe propert" received. 8e is, however, the
e+itimate owner of his own propert" which is not reservabe propert" and which
constitutes his e+itime, accordin+ to artice :0% of the Civi Code. @ut if,
afterwards, a of the reatives, within the third de+ree, of the descendant (from
whom came the reservabe propert") die or disappear, the said propert" becomes
free propert", b" operation of aw, and is thereb" converted into the e+itime of the
ascendant heir who can transmit it at his death to his e+itimate successors or
testamentar" heirs. *his propert" has now ost its nature of reservabe propert",
pertainin+ thereto at the death of the reatives, caed reservatarios, who beon+ed
within the third de+ree to the ine from which such propert" came.lawphil.net
Foowin+ the order prescribed b" aw in e+itimate succession, when there are
reatives of the descendant within the third de+ree, the ri+ht of the nearest reative,
caed reservatario, over the propert" which the reservista (person hodin+ it subAect
to reservation) shoud return to him, e.cudes that of the one more remote. *he ri+ht
of representation cannot be ae+ed when the one caimin+ same as a reservatario of
the reservabe propert" is not amon+ the reatives within the third de+ree beon+in+
to the ine from which such propert" came, inasmuch as the ri+ht +ranted b" the
21
Civi Code in artice :$$ is in the hi+hest de+ree persona and for the e.cusive
benefit of desi+nated persons who are the reatives, within the third de+ree, of the
person from whom the reservabe propert" came. *herefore, reatives of the fourth
and the succeedin+ de+rees can never be considered as reservatarios, since the aw
does not reco+niCe them as such.
In spite of what has been said reative to the ri+ht of representation on the part of
one ae+in+ his ri+ht as reservatario who is not within the third de+ree of
reationship, nevertheess there is ri+ht of representation on the part of reservatarios
who are within the third de+ree mentioned b" aw, as in the case of nephews of the
deceased person from whom the reservabe propert" came. *hese reservatarios have
the ri+ht to represent their ascendants (fathers and mothers) who are the brothers of
the said deceased person and reatives within the third de+ree in accordance with
artice :$$ of the Civi Code.
In this case it is conceded without denia b" defendants, that the paintiffs
?ncarnacion, Dabrie and 'a+daena are the e+itimate chidren of the first marria+e
of the deceased ,poonio Isabeo Forentino II6 that Ramon, 'i+ue, Ceferino,
,ntonio, and Rosario are both +randchidren of ,poonio Isabeo Forentino II, and
chidren of his deceased son, 1ose Forentino6 that the same have the ri+ht to
represent their aforementioned father, 1ose Forentino6 that ?miia, 1esus, =ourdes,
Caridad, and Boores are the e+itimate chidren of the deceased ?spirita Forentino,
one of the dau+hters of the deceased ,poonio Isabeo Forentino II, and represent
the ri+ht of their aforementioned mother6 and that the other paintiffs, 1ose and
,suncion, have aso the ri+ht to represent their e+itimate father Pedro Forentino
one of the sons of the aforementioned ,poonio Isabeo Forentino II. It is a fact,
admitted b" both parties, that the other chidren of the first marria+e of the deceased
,poonio Isabeo Forentino II died without issue so that this decision does not dea
with them.
*here are then seven EreservatariosE who are entited to the reservabe propert" eft
at the death of ,poonio III6 the posthumos son of the aforementioned ,poonio
Isabeo II, to wit, his three chidren of his first marria+e 4 ?ncarnacion, Dabrie,
'a+daena6 his three chidren, 1ose, ?spirita and Pedro who are represented b" their
own tweve chidren respective"6 and 'ercedes Forentino, his dau+hter b" a
second marria+e. , of the paintiffs are the reatives of the deceased posthumos
son, ,poonio Forentino III, within the third de+ree (four of whom bein+ his haf!
brothers and the remainin+ tweve bein+ his nephews as the" are the chidren of his
three haf!brothers). ,s the first four are his reatives within the third de+ree in their
own ri+ht and the other tweve are such b" representation, a of them are
indisputab" entited as reservatarios to the propert" which came from the common
ancestor, ,poonio Isabeo, to ,poonio Forentino III b" inheritance durin+ his ife!
time, and in turn b" inheritance to his e+itimate mother, )everina FaC de =eon,
widow of the aforementioned ,poonio Isabeo Forentino II.
In spite of the provisions of artice :$$ of the Civi Code aread" cited, the tria
Aud+e refused to accept the theor" of the paintiffs and, acceptin+ that of the
defendants, absoved the atter from the compaint on the +round that said artice is
absoute" inappicabe to the instant case, inasmuch as the defendant 'ercedes
Forentino survived her brother, ,poonio III, from whom the reservabe propert"
came and her mother, )everina FaC de =eon, the widow of her father, ,poonio
Isabeo Forentino II6 that the defendant 'ercedes, bein+ the on" dau+hter of
)everina FaC de =eon, is i-ewise her forced heiress6 that when she inherited the
propert" eft at the death of her mother, to+ether with that which came from her
deceased brother ,poonio III, the fundamenta obAect of artice :$$ of the Code
was thereb" compied with, inasmuch as the dan+er that the propert" comin+ from
the same ine mi+ht fa into the hands of stran+ers had been avoided6 and that the
hope or e.pectation on the part of the paintiffs of the ri+ht to acquire the propert"
of the deceased ,poonio III never did come into e.istence because there is a forced
heiress who is entited to such propert".
*he Aud+ment appeaed from is aso founded on the theor" that artice :$$ of the
Civi Code does not destro" the s"stem of e+itimate succession and that the
pretension of the paintiffs to app" said artice in the instant case woud be
permittin+ the reservabe ri+ht to reduce and impair the forced e+itimate which
e.cusive" beon+s to the defendant 'ercedes Forentino, in vioation of the
precept of artice :$/ of the same Code which provides that the testator cannot
deprive his heirs of their e+itime, e.cept in the cases e.press" determined b" aw.
2either can he impose upon it an" burden, condition, or substitution of an" -ind
whatsoever, savin+ the provisions concernin+ the usufruct of the survivin+ spouse,
citin+ the decision of the )upreme Court of )pain of 1anuar" 3, $%$$.
*he principa question submitted to the court for decision consists main" in
determinin+ whether the" propert" eft at the death of ,poonio III, the posthumos
son of ,poonio Isabeo II, was or was not invested with the character of reservabe
propert" when it was received b" his mother, )everina FaC de =eon.
*he propert" enumerated b" the paintiffs in para+raph 7 of their compaint came,
without an" doubt whatsoever, from the common ancestor ,poonio Isabeo II, and
when, on the death of ,poonio III without issue the same passed b" operation of
aw into the hands of his e+itimate mother, )everina FaC de =eon, it became
reservabe propert", in accordance with the provision of artice :$$ of the Code,
22
with the obAect that the same shoud not fa into the possession of persons other
than those comprehended within the order of person other than those comprehended
within the order of succession traced b" the aw from ,poonio Isabeo II, the
source of said propert". If this propert" was in fact cothed with the character and
condition of reservabe propert" when )everina FaC de =eon inherited same from
her son ,poonio III, she did not thereb" acquire the dominion or ri+ht of ownership
but on" the ri+ht of usufruct or of fiduciar" with the necessar" obi+ation to
preserve and to deiver or return it as such reservabe propert" to her deceased son>s
reatives within the third de+ree, amon+ whom is her dau+hter, 'ercedes
Forentino.
Reservabe propert" neither comes, nor fas under, the absoute dominion of the
ascendant who inherits and receives same from his descendant, therefore it does not
form part of his own propert" nor become the e+itimate of his forced heirs. It
becomes his own propert" on" in case that a the reatives of his descendant sha
have died (reservista) in which case said reservabe propert" osses such character.
<ith fu ri+ht )everina FaC de =eon coud have disposed in her wi of a her own
propert" in favor of her on" ivin+ dau+hter, 'ercedes Forentino, as forced
heiress. @ut whatever provision there is in her wi concernin+ the reservabe
propert" received from her son ,poonio III, or rather, whatever provision wi
reduce the ri+hts of the other reservatarios, the haf brothers and nephews of her
dau+hter 'ercedes, is unawfu, nu and void, inasmuch as said propert" is not her
own and she has on" the ri+ht of usufruct or of fiduciar", with the obi+ation to
preserve and to deiver same to the reservatarios, one of whom is her own dau+hter,
'ercedes Forentino.
It cannot reasonab" be affirmed, founded upon an e.press provision of aw, that b"
operation of aw a of the reservabe propert", received durin+ ifetime b" )everina
FaC de =eon from her son, ,poonio III, constitutes or forms parts of the e+itime
pertainin+ to 'ercedes Forentino. If said propert" did not come to be the e+itimate
and e.cusive propert" of )everina FaC de =eon, her on" e+itimate and forced
heiress, the defendant 'ercedes, coud not inherit a b" operation of aw and in
accordance with the order of e+itimate succession, because the other reatives of the
deceased ,poonio III, within the third de+ree, as we as hersef are entited to such
reservabe propert".
For this reason, in no manner can it be caimed that the e+itime of 'ercedes
Forentino, comin+ from the inheritance of her mother )everina FaC de =eon, has
been reduced and impaired6 and the appication of artice :$$ of the Code to the
instant case in no wa" preAudices the ri+hts of the defendant 'ercedes Forentino,
inasmuch as she is entited to a part on" of the reservabe propert", there bein+ no
awfu or Aust reason which serves as rea foundation to disre+ard the ri+ht to
,poonio III>s other reatives, within the third de+ree, to participate in the reservabe
propert" in question. ,s these reatives are at present ivin+, caimin+ for it with an
indisputabe ri+ht, we cannot find an" reasonabe and awfu motive wh" their ri+hts
shoud not be uphed and wh" the" shoud not be +ranted equa participation with
the defendant in the iti+ated propert".
*he caim that because of )everina FaC de =eon>s forced heiress, her dau+hter
'ercedes, the propert" received from the deceased son ,poonio III ost the
character, previous" hed, of reservabe propert"6 and that the mother, the said
)everina, therefore, had no further obi+ation to reserve same for the reatives
within the third de+ree of the deceased ,poonio III, is evident" erroneous for the
reason that, as has been aread" stated, the reservabe propert", eft in a wi b" the
aforementioned )everina to her on" dau+hter 'ercedes, does not form part of the
inheritance eft b" her death nor of the e+itimate of the heiress 'ercedes. 1ust
because she has a forced heiress, with a ri+ht to her inheritance, does not reieve
)everina of her obi+ation to reserve the propert" which she received from her
deceased son, nor did same ose the character of reservabe propert", hed before the
reservatarios received same.
It is true that when 'ercedes Forentino, the heiress of the reservista )everina, too-
possession of the propert" in question, same did not pass into the hands of stran+ers.
@ut it is i-ewise true that the said 'ercedes is not the on" reservataria. ,nd there
is no reason founded upon aw and upon the principe of Austice wh" the other
reservatarios, the other brothers and nephews, reatives within the third de+ree in
accordance with the precept of artice :$$ of the Civi Code, shoud be deprived of
portions of the propert" which, as reservabe propert", pertain to them.
From the fore+oin+ it has been shown that the doctrine announced b" the )upreme
Court of )pain on 1anuar" 3, $%$$, for the vioation of artices :$$, %#: and
consequent" of the Civi Code is not appicabe in the instant case.
Foowin+ the provisions of artice :$/, the )upreme Court of )pain hed that the
e+itime of the forced heirs cannot be reduced or impaired and said artice is
e.press" respected in this decision.
8owever, in spite of the efforts of the appeee to defend their supposed ri+hts, it has
not been shown, upon an" e+a foundation, that the reservabe propert" beon+ed
to, and was under the absoute dominion of, the reservista, there bein+ reatives
23
within the third de+ree of the person from whom same came6 that said propert",
upon passin+ into the hands of the forced heiress of the deceased reservista, formed
part of the e+itime of the former6 and that the said forced heiress, in addition to
bein+ a reservataria, had an e.cusive ri+ht to receive a of said propert" and to
deprive the other reservatarios, her reatives within the third de+ree of certain
portions thereof.
Concernin+ the pra"er in the compaint reative to the indemnit" for dama+es and
the deiver" of the fruits coected, it is not proper to +rant the first for there is no
evidence of an" dama+e which can +ive rise to the obi+ation of refundin+ same. ,s
to the second, the deiver" of the fruits produced b" the and formin+ the principa
part of the reservabe propert", the defendants are undoubted" in dut" bound to
deiver to the paintiffs si.!sevenths of the fruits or rents of the portions of and
caimed in the compaint, in the quantit" e.pressed in para+raph $$ of the same,
from 1anuar" $&, $%$:, the date the compaint was fied6 and the remainin+ seventh
part shoud +o to the defendant 'ercedes.
For the fore+oin+ reasons it foows that with the reversa of the order of decision
appeaed from we shoud decare, as we hereb" do, that the aforementioned
propert", inherited b" the deceased )everina FaC de =eon from her son ,poonio
Forentino III, is reservabe propert"6 that the paintiffs, bein+ reatives of the
deceased ,poonio III within the third de+ree, are entited to si.!sevenths of said
reservabe propert"6 that the defendant 'ercedes is entited to the remainin+ seventh
part thereof6 that the atter, to+ether with her husband ,n+e ?ncarnacion, sha
deiver to the paintiffs, Aoint", si.!sevenths of the fruits or rents, caimed from said
portion of the and and of the quantit" caimed, from 1anuar" $&, $%$:, unti fu"
deivered6 and that the indemnit" for one thousand pesos (P$,000) pra"ed for in the
compaint is denied, without specia findin+s as to the costs of both instances. )o
ordered.
24
G.R. No. 7878 Se-/e9ber 1), 191)
"ARELINA E5ROSO, petitioner!appeant,
vs.
PA#LO a'( #ASILIO SA#LAN, opponents!appeees.
ARELLANO, C.J.:
*he subAect matter of this appea is the re+istration of certain propert" cassified as
required b" aw to be reserved. 'arceina ?droso appied for re+istration and
issuance of tite to two parces of and situated in the municipait" of Pa+sanAan,
Province of =a+una, one of $ hectare && ares and #/ centares, and the other $
hectare # ares and 2# centares. *wo appications were fied, one for each parce, but
both were heard and decided in a sin+e Aud+ment.
'arceina ?droso was married to (ictoriano )aban unti his death on )eptember
22, $::2. In this marria+e the" had a son named Pedro, who was born on ,u+ust $,
$::$, and who at his father>s death inherited the two said parces. Pedro aso died on
1u" $7, $%02, unmarried and without issue and b" this decease the two parces of
and passed throu+h inheritance to his mother, 'arceina ?droso. 8ence the
hereditar" tite whereupon is based the appication for re+istration of her ownership.
*wo e+itimate brothers of (ictoriano )aban 4 that is, two unces +erman of Pedro
)aban 4 appeared in the case to oppose the re+istration, caimin+ one of two
thin+s; ?ither that the re+istration be denied, Eor that if +ranted to her the ri+ht
reserved b" aw to the opponents be recorded in the re+istration of each parce.E (@.
of ?., $$, $2.)
*he Court of =and Re+istration denied the re+istration and the appication appeaed
throu+h a bi of e.ceptions.
Re+istration was denied because the tria court hed that the parces of and in
question parta-e of the nature of propert" required b" aw to be reserved and that in
such a case appication coud on" be presented Aoint" in the names of the mother
and the said two unces of Pedro )aban.
*he appeant impu+ns as erroneous the first idea advanced (second assi+nment of
error), and denies that the and which are the subAect matter of the appication are
required b" aw to be reserved 4 a contention we re+ard as indefensibe.
Facts; ($) *he appicant acquired said ands from her descendant Pedro )aban b"
inheritance6 (2) Pedro )aban had acquired them from his ascendant (ictoriano
)aban, i-ewise b" inheritance6 (/) (ictoriano )aban had i-ewise acquired them
b" inheritance from his ascendants, 'ariano )aban and 'aria Rita FernandeC, the"
havin+ been adAudicated to him in the partition of hereditar" propert" had between
him and his brothers. *hese are admitted facts.
, ver" definite concusions of aw is that the hereditar" tite is one without a
vauabe consideration I+ratuitous titeJ, and it is so characteriCed in artice %#: of
the Civi Code, for he who acquires b" inheritance +ives nothin+ in return for what
he receives6 and a ver" definite concusion of aw aso is that the unces +erman are
within the third de+ree of bood reationship.
*he ascendant who inherits from his descendant propert" which the atter acquired
without a vauabe consideration from another ascendant, or from a brother or sister,
is under obi+ation to reserve what he has acquired b" operation of aw for the
reatives who are within the third de+ree and beon+ to the ine whence the propert"
proceeded. (Civi Code, art. :$$.)
'arceina ?droso, ascendant of Pedro )aban, inherited from him these two parces
of and which he had acquired without a vauabe consideration 4 that is, b"
inheritance from another ascendant, his father (ictoriano. 8avin+ acquired them b"
operation of aw, she is obi+ated to reatives within the third de+ree and beon+ to
the ine of 'ariano )aban and 'aria Rita FernandeC, whence the ands proceeded.
*he tria court>s ruin+ that the" parta-e of the nature propert" required b" aw to be
reserved is therefore in accordance with the aw.
@ut the appeant contends that it is not proven that the two parces of and in
question have been acquired b" operation of aw, and that on" propert" acquired
without a vauabe consideration, which is b" operation of aw, is required b" aw to
reserved.
*he appeees Aust" ar+ue that this defense was not ae+ed or discussed in first
instance, but on" herein. Certain", the ae+ation in first instance was mere" that
EPedro )aban acquired the propert" in question in $::2, before the enforcement of
the Civi Code, which estabishes the ae+ed ri+ht required b" aw to be reserved, of
which the opponents spea-6 hence, prescription of the ri+ht of action6 and fina",
opponents> renunciation of their ri+ht, admittin+ that it e.isted and that the" had itE
(p. 3%).
25
8owever that be, it is not superfous to sa", athou+h it ma" be unnecessar", that the
appicant inherited the two parces of and from her son Pedro, who died Eunmarried
and without issue.E *he tria court so hed as a concusion of fact, without an"
obAection on the appeant>s part. (@. of ?., $&, 20.) <hen Pedro )aban died without
issue, his mother became his heir b" virtue of her ri+ht to her son>s e+a portion
under artice %/7 of the Civi Code;
In the absence of e+itimate chidren and descendants of the deceased, his
ascendants sha from him, to the e.cusion of coateras.
*he contrar" coud on" have occurred if the heiress had demonstrated that an" of
these ands had passed into her possession b" free disposa in her son>s wi6 but the
case presents no testamentar" provision that demonstrate an" transfer of propert"
from the son to the mother, not b" operation of aw, but b" her son>s wish. *he e+a
presumption is that the transfer of the two parces of and was abintestate or b"
operation of aw, and not b" wi or the wish of the predecessor in interest. (,ct 2o.
$%0, sec. //3, 2o. 2#.) , the provision of artice :$$ of the Civi Code have
therefore been fu" compied with.
If Pedro )aban had instituted his mother in a wi as the universa heiress of his
propert", a he eft at death woud not be required b" aw to be reserved, but on"
what he woud have perforce eft her as the e+a portion of a e+itimate ascendant.
*he e+a portion of the parents or ascendants is constituted b" one!haf of the
hereditar" estate of the chidren and descendants. *he atter ma" unrestricted"
dispose of the other haf, with the e.ception of what is estabished in artice :/#.
(Civi Code, art. :0%.)
In such case on" the haf constitutin+ the e+a portion woud be required b" aw to
be reserved, because it is what b" operation of aw coud fu to the mother from her
son>s inheritance6 the other haf at free disposa woud not have to be reserved. *his
is a that artice :$$ of the Civi Code sa"s.
2o error has been incurred in hodin+ that the two parces of and which are the
subAect matter of the appication are required b" aw to be reserved, because the
interested part" has not proved that either of them became her inheritance throu+h
the free disposa of her son.
Proof testate succession devoves upon the heir or heiress who ae+es it. It must be
admitted that a haf of Pedro )aban>s inheritance was acquired b" his mother b"
operation of aw. *he aw provides that the other haf is aso presumed to be
acquired b" operation of aw 4 that is, b" intestate succession. Otherwise, proof to
offset this presumption must be presented b" the interested part", that is, that the
other haf was acquired b" the man>s wish and not b" operation of aw.
2or is the third assi+nments of error admissibe 4 that the tria court faied to
sustain the renunciation of the ri+ht required b" aw to be reserved, which the
appicant attributes to the opponents. )uch renunciation does not appear in the case.
*he appeant deduces it from the fact that the appeees did not contradict the
foowin+ statement of hers at the tria;
*he da" after my brother-in-law 3ablo Sablan dies and was buried, his brother came
to m" house and said that those rice ands were mine, because we had aread" ta-ed
about ma-in+ deiver" of them. (p. %$).
*he other brother auded to is @asiio )aban, as stated on pa+e %2. From the fact
that @asiio )aban said that the ands beon+ to the appeant and must be deivered
to her it cannot be deduced that he renounced the ri+ht required b" aw to be
reserved in such ands b" virtue of the provisions of artice :$$ of the Civi Code,
for the" rea" beon+ to her and must be deivered to her.
*he fourth assi+nments of error set up the defense of prescription of the ri+ht of
action. *he appeant ae+es prescription of the opponent>s ri+ht of action for
requirin+ fufiment of the obi+ation the" attribute to her recordin+ in the propert"
re+istr" the ri+ht required b" aw to be reserved, in accordance with the provisions
of the 'ort+a+e =aw6 and as such obi+ation is created b" aw, it prescribed in the
time fi.ed in 2o. 2 of section 3/ of ,ct 2o. $%0. )he adds; EPrescription of the
right ae+ed to the reserved b" force of aw has not been invo-ed.E (?i+ht
ae+ation.)
*he appeant does not state in her brief what those provisions of the 'ort+a+e =aw
are. 2or did she do so in first instance, where she sa"s on" the foowin+, which is
quoted from the record; EI do not refer to the prescription of the ri+ht required b"
aw to be reserved in the propert"6 I refer to the prescription of the ri+ht of action of
those who are entited to the guaranty of that ri+ht for see-in+ that +uarant", for
those who are entited to that ri+ht the 'ort+a+e =aw +rants a period of time for
recordin+ it in the propert" re+istr", if I remember correct", ninet" da"s, for see-in+
entr" in the re+istr"6 but as the" have not e.ercised that ri+ht of action, such ri+ht of
action for see-in+ here that it be recorded has prescribed. The right of action for
requiring that the property be reserved has not prescribed, but the ri+ht of action for
26
+uaranteein+ in the propert" re+istr" that this propert" is required b" aw to be
reservedE (p. #% of the record).
*he appeees rep"; It is true that their ri+ht of action has prescribed for requirin+
the appicant to constitute the mort+a+e imposed b" the 'ort+a+e =aw for
+uaranteein+ the effectiveness of the required b" aw to be reserved6 but because
that ri+ht of action has prescribed, that propert" has not been divested of its
character of propert" required b" aw to be reserved6 that it has such character b"
virtue of artice :$$2 of the Civi Code, which went into effect in the Phiippine in
Becember, $::%, and not b" virtue of the 'ort+a+e =aw, which on" went into
effect in the countr" b" aw of 1u" $3, $:%/6 that from Becember, $::%, to 1u",
$:%/, propert" which under artice :$$ of the Civi Code acquired the character of
propert" reserved b" operation of aw was such independent" of the 'ort+a+e =aw,
which did not "et form part of the positive e+isation of the countr"6 that athou+h
the 'ort+a+e =aw has been in effect in the countr" since 1u", $:%/, sti it has in no
wa" atered the force of artice :$$ of the Civi Code, but has operated to reinforce
the same mere" b" +rantin+ the ri+ht of action to the persons in whose favor the
ri+ht is reserved b" operation of aw to require of the person hodin+ the propert" a
+uarant" in the form of a mort+a+e to answer for the enforcement, in due time, of
the ri+ht6 that to ose the ri+ht of action to the +uarant" is not to ose the ri+ht itsef6
that the ri+ht reserved is the principa obi+ation and the mort+a+e the accessor"
obi+ation, and oss of the accessor" does not mean oss of the principa. (Fifth and
si.th ae+ations.)
*he e.istence of the ri+ht required b" aw to be reserved in the two parces of and
in question bein+ indisputabe, even thou+h it be admitted that the ri+ht of action
which the 'ort+a+e =aw +rants as a +uarant" of fina enforcement of such ri+ht has
prescribed, the on" thin+ to be determined b" this appea is the question raised in
the first assi+nment of error, that is, how said two parces of and can and ou+ht to
be re+istered, not in the propert" re+istr" new" estabished b" the 'ort+a+e =aw,
but in the re+istr" new" or+aniCed b" ,ct 2o. 3%#. @ut as the have sipped into the
ae+ations quoted some rather ine.act ideas that further obscure such an intricate
subAect as this of the ri+hts required to be reserved in )panish!Phiippine aw, a brief
dis+ression on the most essentia points ma" not be out of pace here.
*he 'ort+a+e =aw of 1u" $3, $:%/, to which the appeees aude, is the amended
one of the coonies, not the first enforced in the coonies and consequent" in the
Phiippines. *he preambe of said amended 'ort+a+e =aw states;
*he 'ort+a+e =aw in force in )pain for thirt" "ears went into effect, with the
modifications necessar" for its adaptation, in the ,nties on 'a" $, $::0, and in the
Phiippines on Becember $, $::%, thus commencin+ in those re+ions the renovation
of the aw on rea propert", and consequent" of a+rarian credit.
*he Civi Code went into effect in the Phiippines in the same "ear, $::%, but on the
ei+ht da".
*wo -inds of propert" required b" aw to be reserved are distin+uished in the Civi
Code, as set forth in artice %#: thereof, where it sa"s;
@esides the reservation imposed b" artice ?99, the widow or widower contractin+ a
seconds marria+e sha be obi+ed to set apart for the chidren and descendants of
the first marria+e the ownership of a the propert" he or she ma" have required
from the deceased spouse b" wi, b" intestate succession, b" +ift, or other transfer
without a vauabe consideration.E
*he 'ort+a+e =aw of )pain and the first aw that went into effect in the Phiippines
on Becember $, $:%, do not contain an" provision that can be appied to the ri+ht
reserved b" artice :$$ of the Civi Code, for such ri+ht is a creation of the Civi
Code. In those aws appear mere" the provisions intended to +uarantee the
effectiveness of the ri+ht in favor of the chidren of the first marria+e when their
father or mother contracts a second marria+e. 2evertheess, the hodin+ of the
supreme court of )pain, for the first time set forth in the decision on appea of
2ovember :, $:%3, has been reiterated;
*hat whie the provisions of artices %&& and %&: of the Civi Code that tend to
secure the ri+ht required to be reserved in the propert" refer especia" to the
spouses who contract second or ater marria+es, the" do not thereb" cease to be
appicabe to the ri+ht estabishes in artice :$$, because, aside from the e+a
reason, which is the same in both cases, such must be the construction from the
important and concusive circumstance that said provisions are set forth in the
chapter that deas with inheritances in common, either testate or intestate, and
because artice %#:, which heads the section that deas in +enera with propert"
required b" aw to be reserved, ma-es reference to the provisions in artice :$$6 and
it woud consequent" be contradictor" to the principe of the aw and of the
common nature of said provisions not to hod them appicabe to that ri+ht.
*hus it was a+ain stated in a decision on appea, Becember /0, $:%&, that; E,s the
supreme court has aread" decared, the +uaranties that the Code fi.es in artice %&&
and %&: for the ri+hts required b" aw to the reserved to which said artices refer, are
appicabe to the specia ri+ht deat with in artice :$$, because the same principe
27
e.ists and because of the +enera nature of the provisions of the chapter in which
the" are found.E
From this principe of Aurisprudence it is inferred that if from Becember, $::%, to
1u", $:%/, a case had occurred of a ri+ht required to be reserved b" artice :$$, the
persons entited to such ri+ht woud have been abe to institute, a+ainst the
ascendant who must ma-e the reservation, proceedin+s for the assurance and
+uarant" that artice %&& and %&: +rant to the chidren of a first marria+e a+ainst
their father or mother who has married a+ain. *he proceedin+s for assurance, under
artice %&&6 are; Inventor" of the propert" subAect to the ri+ht reserved, annotation in
the propert" re+istr" of such ri+ht reserved in the rea propert" and appraisa of the
persona propert"6 and the +uarant", under artice %&:, is the assurance b" mort+a+e,
in the case of reat", of the vaue of what is vaid" aienated.
@ut since the amended 'ort+a+e =aw went into effect b" aw of 1u" $3, $:%/, in
the Phiippines this is not on" a principe of Aurisprudence which ma" be invo-ed
for the appicabiit" to the ri+ht reserved in artice :$$ of the remedies of assurance
and +uarant" provided for the ri+ht reserved in artice %#:, but there is a positive
provision of said aw, which is an advanta+e over the aw of )pain, to wit, artice
$%%, which read thus;
*he specia mort+a+e for +uaranteein+ the ri+ht reserved b" artice :$$ of the Civi
Code can on" be required b" the reatives in whose favor the propert" is to be
reserved, if the" are of a+e6 if minors, it wi be require b" the person who shoud
e+a" represent them. In either case the ri+ht of the persons in whose favor the
propert" must be reserved wi be secured b" the same requisites as set forth in the
precedin+ artice (reative to the ri+ht reserved b" artice %#: of the Civi Code),
app"in+ to the person obligated to reserve the ri+ht the provisions with respect to
the father.
In artice $#: of the same aw the new subsection 2 is added in connection with
artice $%% quoted, so that said artice $#: reads as thus;
=e+a mort+a+e is estabished;
$. . . .
2. In favor of the reatives to whom artice :$$ of the Civi Code refers, for the
propert" required to be reserved, upon the propert" of the person obi+ed to reserve
it.
*his bein+ admitted, and admitted aso that both the iti+atin+ parties a+ree that the
period of ninet" da"s fi.ed for the ri+ht of action to the +uarant", that is, to require
the mort+a+e that +uarantees the effectiveness of the ri+ht required b" aw to be
reserved, has prescribed, it is necessar" to a" down a principe in this matter. 2ow
it shoud b" noted that such action has not prescribed, because the period of ninet"
da"s fi.ed b" the 'ort+a+e =aw is not for the e.ercise of the ri+ht of action of the
persons entited to the ri+ht reserved, but for the fufiment of the obi+ation of the
person who must ma-e the reservation.
,rtice $%$ of the reads thus; EIf ninet" da"s pass without the father>s institutin+ in
court the proceedin+ to which the fore+oin+ artice refers, the reatives themseves
ma" demand fufiment, etc., . . . app"in+, accordin+ to said artice $%%, to the
person obi+ated to reserve the ri+ht the provisions with respect to the father.E
,rtice 20/ of the re+uation for the appication of the 'ort+a+e =aw sa"s; EIn the
case of artice $%% of the aw the proceedin+s to which artice $%0 thereof refers wi
be instituted within the ninet" da"s succeedin+ the date of the date of the
acceptation of the inheritance b" the person obi+ated to reserve the propert"6 after
this period has elapsed, the interested parties ma" require the institution of such
proceedin+s, if the" are of a+e6 and in an" other case, their e+a representatives.E
*hus it cear" appears that the apse of the ninet" da"s is not the e.piration b"
prescription of the period for the ri+ht must be reserved, but rea" the
commencement thereof, enabes them to e.ercise it at an" time, since no imits is set
in the aw. )o, if the annotation of the ri+ht required b" aw to be reserved in the two
parces of and in question must be made in the propert" re+istr" of the 'ort+a+e
=aw, the persons entited to it ma" now institute proceedin+s to that end, and an
ae+ation of prescription a+ainst the e.ercise of such ri+ht of action cannot be
sustained.
)ince the appicant confesses that she does not ae+e prescription of the ri+ht of
action for requiring that the property be reserved, for she e.picit" so stated at the
tria, and as the case presents no necessit" for the proceedin+s that shoud be
instituted in accordance with the provisions of the 'ort+a+e =aw, this prescription
of the ri+ht of action cannot ta-e pace, because such ri+ht of action does not e.ist
with reference to institutin+ proceedin+s for annotation in the re+istr" of ,ct 2o.
3%# of the ri+ht to the propert" required b" aw to be reserved. It is sufficient, as
was done in the present case, to intervene in the re+istration proceedin+s with the
caim set up b" the two opponents for recordin+ therein the ri+ht reserved in either
parce of and.
28
2ow comes the main point in the appea. *he tria court denied the re+istration
because of this findin+ set forth in its decision;
,bsoute tite to the two parces of and undoubted" beon+s to the appicant and
the two unces of the deceased Pedro )aban, and the appication cannot be made
e.cept in the name of a of them in common. (@. of ?., p. 20.)
It must be remembered that absoute tite consists of the ri+hts to use, enAo", dispose
of, and recover. *he person who has in himsef a these ri+hts has the absoute or
compete ownership of the thin+6 otherwise, the person who has the ri+ht to use and
enAo" wi have the usufruct, and the person who has the ri+hts of disposa and
recover" the direct tite. *he person who b" aw, act, or contract is +ranted the ri+ht
of usufruct has the first two ri+hts or usin+ an enAo"in+, and then he is said not to
have the fee simpe 4 that is, the ri+hts of disposa and recover", which pertain to
another who, after the usufruct e.pires, wi come into fu ownership.
*he question set up in the first assi+nment of error of the appeant>s brief is this;
@hat are the rights in the property of the person who holds it sub/ect to the
reservation of article ?99 of the #ivil #odeA
*here are not ac-in+ writers who sa", on" those of a usufructuar", the utimate tite
beon+in+ to the person in whose favor the reservation is made. If that were so, the
person hodin+ the propert" coud not app" for re+istration of tite, but the person in
whose favor it must be reserved, with the former>s consent. *his opinion does not
seem to be admissibe, athou+h it appears to be supported b" decisions of the
supreme court of )pain of 'a" 2$, $:#$, and 1une $:, $::0, prior to the Civi Code,
and of 1une 22, $:%7, somewhat subsequent to the enforcement thereof.
,nother writer sa"s; E*his opinion on" oo-s at two saient points 4 the usufruct
and the fee simpe6 the remainin+ features of the arran+ement are not perceived, but
become obscure in the presence of that deceptive emphasis which on" brin+s out
two thin+s; that the person hodin+ the propert" wi enAo" it and that he must -eep
what he enAo"s for other persons.E ('anresa, (II, $:%.)
In another pace he sa"s; E<e do not beieve that the third opinion can now be
maintained 4 that is, that the survivin+ spouse (the person obi+ed b" artice %#: to
ma-e the reservation) can be re+arded as a mere usufructuar" and the descendants
immediate" as the owner6 such theor" has no serious foundation in the Code.E
(!bid., 2/:.)
*he ascendants who inherits from a descendants, whether b" the atter>s wish or b"
operation of aw, requires the inheritance b" virtue of a tite perfect" transferrin+
absoute ownership. , the attributes of the ri+ht of ownership beon+ to him
e.cusive" 4 use, enAo"ment, disposa and recover". *his absoute ownership,
which is inherent in the hereditar" tite, is not atered in the east, if there be no
reatives within the third de+ree in the ine whence the propert" proceeds or the" die
before the ascendant heir who is the possessor and absoute owner of the propert". If
there shoud be reatives within the third de+ree who beon+ to the ine whence the
propert" proceeded, then a imitation to that absoute ownership woud arise. *he
nature and scope of this imitation must be determined with e.actness in order not to
vitiate ri+hts that the aw wishes to be effective. *he opinion which ma-es this
imitation consist in reducin+ the ascendant heir to the condition in of a mere
usufructuar", deprivin+ him of the ri+ht of disposa and recover", does not seem to
have an" support in the aw, as it does not have, accordin+ to the opinion that he has
been e.pressed in spea-in+ of the ri+hts of the father or mother who has married
a+ain. *here is a mar-ed difference between the case where a man>s wish institutes
two persons as his heirs, one as usufructuar" and the other as owner of his propert",
and the case of the ascendant in artice :$$ or of the father or mother in artice %#:.
In the first case, there is not the si+htest doubt that the tite to the hereditar"
propert" resides in the hereditar" owner and he can dispose of and recover it, whie
the usufructuar" can in no wa" perform an" act of disposa of the hereditar"
propert" (e.cept that he ma" dispose of the ri+ht of usufruct in accordance with the
provisions of artice 3:0 of the Civi Code), or an" act of recover" thereof e.cept
the imited one in the form prescribed in artice 3:# of the Code itsef, because he
tota" ac-s the fee simpe. @ut the ascendants who hods the propert" required b"
artice :$$ to be reserved, and the father of mother required b" artice %:# to reserve
the ri+ht, can dispose of the propert" the" mi+ht itsef, the former from his
descendant and the atter from his of her chid in first marria+e, and recover it from
an"one who ma" unAust" detain it, whie the persons in whose favor the ri+ht is
required to be reserved in either case cannot perform an" act whatsoever of disposa
or of recover".
,rtice %&7 states e.picit" that the father or mother required b" artice %#:& to
reserve the ri+ht ma" dispose of the propert" itsef;
,ienation of the propert" required b" aw to be reserved which ma" be made b" the
survivin+ spouse after contractin+ a second marria+e sha be vaid on" if at his or
her death no e+itimate chidren or descendants of the first marria+e survive, without
preAudice to the provisions of the 'ort+a+e of =aw.
29
It thus appears that the aienation is vaid, athou+h not ato+ether effective, but
under a condition subsequent, to wit; EIf at his or her death no e+itimate chidren or
descendants of the first marria+e survive.E
If the tite did not reside in the person hodin+ the propert" to be reserved, his
aienation thereof woud necessari" be nu and void, as e.ecuted without a ri+ht to
do so and without a ri+ht which he coud transmit to the acquirer. *he aw sa"s that
the aienation subsists (to subAect is to continue to e.ist) Ewithout preAudice to the
provisions of the 'ort+a+e =aw.E ,rtice $0% of this =aw sa"s;
*he possessor of propert" subAect to conditions subsequent that are still pending
ma" mort+a+e or aienate it, provided awa"s that he preserve the ri+ht of the parties
interested in said conditions b" e.press" reservin+ that ri+ht in the re+istration.
In such case, the chid or e+itimate descendants of the first marria+e in whose favor
the ri+ht is reserved cannot impu+n the vaidit" of the aienation so on+ as the
condition subsequent is pendin+, that is, so on+ as the remarried spouse who must
reserve the ri+ht is aive, because it mi+ht easi" happen that the person who must
reserve the ri+ht shoud outive a the person in whose favor the ri+ht is reserved
and then there woud be no reason for the condition subsequent that the" survive
him, and, the obAect of the aw havin+ disappeared, the ri+ht required to be reserved
woud disappear, and the aienation woud not on" be vaid but aso in ver" wa"
absoute" effective. Consequent", the aienation is vaid when the ri+ht required b"
aw to be reserved to the chidren is respected6 whie the effects of the aienation
depend upon a condition, because it wi or wi not become definite, it wi continue
to e.ist or cease to e.ist, accordin+ to circumstances. *his is what the aw
estabishes with reference to the reservation of artice %#:, wherein the e+isator
e.press" directs that the survivin+ spouse who contracts a second marria+e sha
reserve to the chidren or descendants of the first marria+e ownership. ,rtice :$$
sa"s nothin+ more than that the ascendants must ma-e the reservation.
'anresa, with his reco+niCed abiit", summariCes the subAect under the headin+,
E<ights and obi+ations durin+ the e.istence of the ri+ht required b" aw to be
reserved,E in these words;
Burin+ the whoe period between the constitution in e+a form of the ri+ht required
b" aw to be reserved and the e.tinction thereof, the reatives within the third
de+ree, after the ri+ht that in their turn ma" pertain to them has been assured, have
on" an e.pectation, and therefore the" do not even have the capacit" to transmit
that e.pectation to their heirs.
*he ascendant is in the first pace a usufructuar" who shoud use and enAo" the
thin+s accordin+ to their nature, in the manner and form aread" set forth in
commentin+ upon the artice of the Code referrin+ to use and usufruct.
@ut since in addition to bein+ the usufructuar" he is, even thou+h conditiona", the
owner in fee simpe of the propert", he can dispose of it in the manner provided in
artice %&3 and %&# of the same Code. Boubt arose aso on this point, but the
Direccion 2eneral of the re+istries, in an opinion of 1une 27, $:%2, decared that
artices %&3 and %&7, which are appicabe b" anao+", for the" refer to propert"
reserved b" aw, revea in the cearest manner the attitude of the e+isator on this
subAect, and the reatives with the third de+ree ou+ht not to be more privie+ed in the
ri+ht reserved in artice :$$ than the chidren in the ri+ht reserved b" artice %&7,
chief" for the reason that the ri+ht required to be reserved carries with it a condition
subsequent, and the propert" subAect to those conditions can vaid" be aienated in
accordance with artice $0% of the 'ort+a+e =aw, such aienation to continue,
pendin+ fufiment of the condition.E (Civi Code, (I, 2&0.)
,nother commentator corroborates the fore+oin+ in ever" wa". 8e sa"s;
*he ascendants acquires that propert" with a condition subsequent, to wit, whether
or not there e.ists at the time of his death reatives within the third de+ree of the
descendants from whom the" inherit in the ine whence the propert" proceeds. If
such reatives e.ist, the" acquire ownership of the propert" at the death of the
ascendants. If the" do not e.ist, the ascendants can free" dispose thereof. If this is
true, since the possessor of propert" subAect to conditions subsequent can aienate
and encumber it, the ascendants ma" aienate the propert" required b" aw to be
reserved, but he wi aienate what he has and nothin+ more because no one can +ive
what does not beon+ to him, and the acquirer wi therefore receive a limited and
revocable title. *he reatives within the third de+ree wi in their turn have an
e.pectation to the propert" whie the ascendant ives, an e.pectation that cannot be
transmitted to their heirs, uness these are aso within the third de+ree. ,fter the
person who is required b" aw to reserve the ri+ht has died, the reatives ma"
rescind the aienation of the reat" required b" aw to be reserved and the" wi
compete ownership, in fee simple, because the condition and the usufruct have been
terminated b" the death of the usufructuar". (>orell, ,studios sobre bienes
reservable, /03, /07.)
*he concusion is that the person required b" artice :$$ to reserve the ri+ht has,
be"ond an" doubt at a, the ri+hts of use and usufruct. 8e has, moreover, for the
reasons set forth, the e+a tite and dominion, athou+h under a condition
subsequent. Cear" he has, under an e.press provision of the aw, the ri+ht to
30
dispose of the propert" reserved, and to dispose of is to aienate, athou+h under a
condition. 8e has the ri+ht to recover it, because he is the one who possesses or
shoud possess it and have tite to it, athou+h a imited and revocabe one. In a
word, the e+a tite and dominion, even thou+h under a condition, reside in him
whie he ives. ,fter the ri+ht required b" aw to be reserved has been assured, he
can do an"thin+ that a +enuine owner can do.
On the other hand, the reatives within the third de+ree in whose favor of the ri+ht is
reserved cannot dispose of the propert", first because it is no wa", either actua",
constructive" or forma", in their possession6 and, moreover, because the" have no
tite of ownership or of the fee simpe which the" can transmit to another, on the
h"pothesis that on" when the person who must reserve the ri+ht shoud die before
them wi the" acquire it, thus creatin+ a fee simpe, and on" then wi the" ta-e
their pace in the succession of the descendants of whom the" are reatives within
the third de+ree, that it to sa", a second contin+ent pace in said e+itimate
succession in the fashion of aspirants to a possibe future e+ac". If an" of the
persons in whose favor the ri+ht is reserved shoud, after their ri+hts has been
assured in the re+istr", dare to dispose of even nothin+ more than the fee simpe of
the propert" to be reserved his act woud be nu and void, for, as was definite"
decided in the decision on appea of Becember /0, $:%&, it is impossibe to
determine the part Ethat mi+ht pertain therein to the reative at the time he e.ercised
the ri+ht, because in view of the nature and scope of the ri+ht required b" aw to be
reserved the e.tent of his ri+ht cannot be foreseen, for it ma" disappear b" his d"in+
before the person required to reserve it, Aust as ma" even become absoute shoud
that person die.E
Carefu consideration of the matter forces the concusion that no act of disposa
inter vivos of the person required b" aw to reserve the ri+ht can be impu+ned b"
him in whose favor it is reserved, because such person has a, absoute" a, the
ri+hts inherent in ownership, e.cept that the e+a tite is burdened with a condition
that the third part" acquirer ma" ascertain from the re+istr" in order to -now that he
is acquirin+ a tite subAect to a condition subsequent. In concusion, it seems to us
that on" an act of disposa mortis causa in favor of persons other than reatives
within the third de+ree of the descendants from whom he +ot the propert" to be
reserved must be prohibited to him, because this aone has been the obAect of the
aw; E*o prevent persons outside a fami" from securin+, b" some specia accident
of ife, propert" that woud otherwise have remained therein.E (Becision of
Becember /0, $:%&.)
Practica", even in the opinion of those who reduce the person reservin+ the ri+ht to
the condition of a mere usufructuar", the person in whose favor it must be reserved
cannot attac- the aienation that ma" be absoute" made of the propert" the aw
requires to be reserved, in the present case, that which the appeant has made of the
two parces of and in question to a third part", because the conditiona aienation
that is permitted her is equivaent to an aienation of the usufruct, which is
authoriCed b" artice 3:0 of the Civi Code, and, practica", use and enAo"ment of
the propert" required b" aw to be reserved are a that the person who must reserve
it has durin+ his ifetime, and in aienatin+ the usufruct a the usefuness of the
thin+ woud be transmitted in an incontrovertibe manner. *he question as to
whether or not she transmits the fee simpe is pure" academic, sine re, for it is not
rea, actua positive, as is the case of the institution of two heirs, one a usufructuar"
and the other the owner, b" the e.press wish of the predecessor in interest.
If the person whom artice :$$ requires to reserve the ri+ht has a the ri+hts
inherent in ownership, he can use, enAo", dispose of and recover it6 and if, in
addition to usufructuar", he is in fact and in aw the rea owner and can aienate it,
athou+h under a condition, the whoe question is reduced to the foowin+ terms;
Cannot the heir of the propert" required b" aw to reserved, mere" because a
condition subsequent is anne.ed to his ri+ht of disposa, himsef aone re+ister the
ownership of the propert" he has inherited, when the persons in whose favor the
reservation must be made de+ree thereto, provided that the ri+ht reserved to them in
the two parces of and be recorded, as the aw provides9
It is we -nown that the vendee under pacto de retracto acquires a the ri+hts of the
vendor;
*he vendee substitutes the vendor in a his ri+hts and actions. (Civi Code, art.
$7$$.)
If the vendor can re+ister his tite, the vendee can aso re+ister this same tite after
he has once acquired it. *his tite, however, in its attribute of bein+ disposabe, has a
condition subsequent anne.ed 4 that the aienation the purchaser ma" ma-e wi be
terminated, if the vendor shoud e.ercise the ri+ht +ranted him b" artice $70&,
which sa"s;
Conventiona redemption sha ta-e pace when the vendor reserves to himsef the
ri+ht to recover the thin+ sod, with the obi+ation to comp" with artice $7$:, and
whatever more ma" have been a+reed upon,E that is, if he recovers the thin+ sod b"
repa"in+ the vendee the price of the sae and other e.penses. 2otwithstandin+ this
condition subsequent, it is a point not at a doubtfu now that the vendee ma"
31
re+ister his tite in the same wa" as the owner of a thin+ mort+a+ed 4 that is to sa",
the atter with the consent of his creditor and the former with the consent of the
vendor. 8e ma" aienate the thin+ bou+ht when the acquirer -nows b" we from the
tite entered in the re+istr" that he acquires a tite revocabe after a fi.ed period, a
thin+ much more certain and to be e.pected than the pure" contin+ent e.pectation
of the person in whose favor is reserved a ri+ht to inherit some da" what another has
inherited. *he purpose of the aw woud be defeated in not app"in+ to the person
who must ma-e the reservation the provision therein reative to the vendee under
pacto de retracto, since the ar+ument in his favor is the more power and concusive6
ubi eadem ratio, eadem legis dispositivo.
*herefore, we reverse the Aud+ment appeaed from, and in ieu thereof decide and
decare that the appicant is entited to re+ister in her own name the two parces of
and which are the subAect matter of the appicants, recordin+ in the re+istration the
ri+ht required b" artice :$$ to be reserved to either or both of the opponents, Pabo
)aban and @asiio )aban, shoud the" survive her6 without specia findin+s as to
costs.
32
G.R. No. L-12937 "ar40 24, 1971
ONSTANIO SIENES, ET AL., paintiffs!appeants,
vs.
FI5EL ESPARIA, ET AL.,defendants!appeees.
5I+ON, J.:
,ppeants commenced this action beow to secure Aud+ment ($) decarin+ nu and
void the sae e.ecuted b" Pauina and Cipriana Faeso in favor of appeees, the
spouses Fide ?sparcia and Pauina )ienes6 (2) orderin+ the ?sparcia spouses to
reconve" to appeants =ot //#: of the Cadastra )urve" of ,"uquitan (now ,man),
Orienta 2e+ros6 and (/) orderin+ a the appeees to pa", Aoint" and severa", to
appeants the sum of P700.00 as dama+es, pus the costs of suit. In their answer
appeees discaimed an" -nowed+e or information re+ardin+ the sae ae+ed"
made on ,pri 20, $%7$ b" ,ndrea Dutan+ in favor of appeants and ae+ed that, if
such sae was made, the same was void on the +round that ,ndrea Dutan+ had no
ri+ht to dispose of the propert" subAect matter thereof. *he" further ae+ed that said
propert" had never been in possession of appeants, the truth bein+ that appeees,
as owners, had been in continuous possession thereof since the death of Francisco
Faeso. @" wa" of affirmative defense and countercaim, the" further ae+ed that on
1u" /0, $%7$, Pauina and Cipriana Faeso, as the on" survivin+ heirs of Francisco
Faeso, e.ecuted a pubic instrument of sae in favor of the spouses Fide ?sparcia
and Pauina )ienes, the said sae havin+ been re+istered to+ether with an affidavit of
adAudication e.ecuted b" Pauina and Cipriana on 1u" $:, $%7$, as soe survivin+
heirs of the aforesaid deceased6 that since then the ?sparcias had been in possession
of the propert" as owners.
,fter tria upon the issues thus Aoined, the ower court rendered Aud+ment as
foows;
I2 (I?< OF ,== *8? FOR?DOI2D, Aud+ment is hereb" rendered decarin+ ($)
that the sae of =ot 2o. //#: made b" ,ndrea Dutan+ to the paintiff spouses
Constancio )ienes and Denoveva )ia" is void, and the reconve"ance pra"ed for b"
them is denied6 (2) that the sae made b" Pauina and Cipriana Faeso in favor of
defendants Fide ?sparcia and Pauina )ienes invovin+ the same ot is aso void,
and the" have no vaid tite thereto6 and (/) that the reservabe propert" in question
is part of and must be reverted to the estate of Cipriana Faeso, the one survivin+
reative and heir of Francisco Faeso at the death of ,ndrea Dutan+ as of Becember
$/, $%7$. 2o pronouncement as to the costs.
From the above decision the )ienes spouse interposed the present appea, their
principa contentions bein+, first", that the ower court erred in hodin+ that =ot
//#: of the Cadastra )urve" of ,"uquitan was a reservabe propert"6 second", in
annuin+ the sae of said ot e.ecuted b" ,ndrea Dutan+ in their favor6 and ast", in
hodin+ that Cipriana Faeso, as reservee, was entited to inherit said and.
*here is no dispute as to the foowin+ facts;
=ot //#: ori+ina" beon+ed to )aturnino Faeso. <ith his first wife, *eresa Ruaes,
he had four chidren named ,+aton, Fernando, Pauina and Cipriana, whie with his
second wife, ,ndrea Dutan+, he had an on" son named Francisco. ,ccordin+ to the
cadastra records of ,"uquitan, the properties eft b" )aturnino upon his death 4
the date of which does not cear" appear of record 4 were eft to his chidren as
foows; =ot //## to Cipriana, =ot //#& to Fernando, =ot //&7 to ,+aton, =ot //&&
(southern portion) to Pauina, and =ot //#: (western portion) to Francisco. ,s a
resut of the cadastra proceedin+s, Ori+ina Certificate of *ite 2o. $02&7 coverin+
=ot //#: was issued in the name of Francisco. @ecause Francisco was a minor at
the time, his mother administered the propert" for him, decared it in her name for
ta.ation purposes (?.hs , L ,!$), and paid the ta.es due thereon (?.hs. @, C, C!$
L C!2). <hen Francisco died on 'a" 2%, $%/2 at the a+e of 20, sin+e and without
an" descendant, his mother, as his soe heir, e.ecuted the pubic instrument ?.hibit
F entited ?G*R,1HBICI,= )?**=?'?2* ,2B ),=? whereb", amon+ other
thin+s, for and in consideration of the sum of P:00.00 she sod the propert" in
question to appeants. <hen thereafter said vendees demanded from Pauina Faeso
and her husband 1ose ?sparcia, the surrender of Ori+ina Certificate of *ite 2o.
$02&7 4 which was in their possession 4 the atter refused, thus +ivin+ rise to the
fiin+ of the correspondin+ motion in the cadastra record 2o. 70&. *he same,
however, was denied (?.hs. : L %).
*hereafter, or more specifica", on 1u" /0, $%7$, Cipriana and Pauina Faeso, the
survivin+ haf!sisters of Francisco, and who as such had decared the propert" in
their name, on 1anuar" $, $%7$ e.ecuted a deed of sae in favor of the spouses Fide
?sparcia and Pauina )ienes (?.h. 2) who, in turn, decared it in their name for ta.
purposes and thereafter secured the issuance in their name of *ransfer Certificate of
*ite 2o. *!2$3$ (?.hs. 7 L 7!,).
,s hed b" the tria court, it is cear upon the facts aread" stated, that the and in
question was reservabe propert". Francisco Faeso inherited it b" operation of aw
from his father )aturnino, and upon Francisco>s death, unmarried and without
descendants, it was inherited, in turn, b" his mother, ,ndrea Dutan+. *he atter was,
therefore, under obi+ation to reserve it for the benefit of reatives within the third
33
de+ree beon+in+ to the ine from which said propert" came, if an" survived her.
*he record discoses in this connection that ,ndrea Dutan+ died on Becember $/,
$%7$, the one reservee survivin+ her bein+ Cipriana Faeso who died on" on
1anuar" $/, $%72 (?.h. $0).
In connection with reservabe propert", the wei+ht of opinion is that the reserve
creates two resoutor" conditions, name", ($) the death of the ascendant obi+ed to
reserve and (2) the surviva, at the time of his death, of reatives within the third
de+ree beon+in+ to the ine from which the propert" came (# 'anresa 2#:!2#%6 #
)ancheC Roman $%/3). *his Court has hed in connection with this matter that the
reservista has the e+a tite and dominion to the reservabe propert" but subAect to a
resoutor" condition6 that he is i-e a ife usufructuar" of the reservabe propert"6
that he ma" aienate the same but subAect to reservation, said aienation transmittin+
on" the revocabe and conditiona ownership of the reservists, the ri+hts acquired
b" the transferee bein+ revo-ed or resoved b" the surviva of reservatarios at the
time of the death of the reservista (?droso vs. )aban, 27 Phi. 2%76 =unsod vs.
Orte+a, 3# Phi. ##36 Forentino vs. Forentino, 30 Phi. 3:06 and Birector of =ands
vs. ,+uas, #7 Phi. 2&%).
*he sae made b" ,ndrea Dutan+ in favor of appeees was, therefore, subAect to the
condition that the vendees woud definite" acquire ownership, b" virtue of the
aienation, on" if the vendor died without bein+ survived b" an" person entited to
the reservabe propert". Inasmuch much as when ,ndrea Dutan+ died, Cipriana
Faeso was sti aive, the concusion becomes inescapabe that the previous sae
made b" the former in favor of appeants became of no e+a effect and the
reservabe propert" subAect matter thereof passed in e.cusive ownership to
Cipriana.
On the other hand, it is aso cear that the sae e.ecuted b" the sisters Pauina and
Cipriana Faeso in favor of the spouses Fide ?sparcia and Pauina )ienes was
subAect to a simiar resoutor" condition. *he reserve instituted b" aw in favor of
the heirs within the third de+ree beon+in+ to the ine from which the reservabe
propert" came, constitutes a rea ri+ht which the reservee ma" aienate and dispose
of, abeit conditiona", the condition bein+ that the aienation sha transfer
ownership to the vendee on" if and when the reservee survives the person obi+ed
to reserve. In the present case, Cipriana Faeso, one of the reservees, was sti aive
when ,ndrea Dutan+, the person obi+ed to reserve, died. *hus the former became
the absoute owner of the reservabe propert" upon ,ndrea>s death. <hie it ma" be
true that the sae made b" her and her sister prior to this event, became effective
because of the occurrence of the resoutor" condition, we are not now in a position
to reverse the appeaed decision, in so far as it orders the reversion of the propert" in
question to the ?state of Cipriana Faeso, because the vendees 4 the ?sparcia
spouses did 4 not appea therefrom.
<8?R?FOR?, the appeaed decision 4 as above modified 4 is affirmed, with
costs, and without preAudice to whatever action in equit" the ?sparcia spouses ma"
have a+ainst the ?state of Cipriana Faeso for the reconve"ance of the propert" in
question.
34
G.R. No. L-)4)93 "ay 19, 1981
#EATRI+ L. GON+ALES, petitioner,
vs.
O!RT OF FIRST INSTANE OF "ANILA ;#RAN6 V<, #ENITO F.
LEGAR5A, ROSARIO L. VAL5E+, ALE*AN5RO LEGAR5A, TERESA
LEGAR5A, *OSE LEGAR5A, #ENITO LEGAR5A , FERNAN5E+,
AR"EN LEGAR5A , FERNAN5E+, FILO"ENA LEGAR5A ,
6ERNAN5E+, AR"EN LEGAR5A , 6ERNAN5E+, ALE*AN5RO
LEGAR5A , 6ERNAN5E+, RA"ON LEGAR5A , 6ERNAN5E+,
FILO"ENA LEGAR5A , LO#REGAT, *AI"E LEGAR5A , LO#REGAT,
ELSO LEGAR5A , LO#REGAT, ALE*AN5RO LEGAR5A ,
LO#REGAT, "A. TERESA LEGAR5A , LO#REGAT, "A. ANTONIA
LEGAR5A , LO#REGAT, *OSE LEGAR5A , LO#REGAT, ROSARIO
LEGAR5A , LO#REGAT, #ENITO LEGAR5A , LO#REGAT, E5!AR5O
LEGAR5A , LO#REGAT, TRINI5A5 F. LEGAR5A, a'( /0e ESTATE OF
5ONA FILO"ENA ROES 5E LEGAR5A, respondents.

A%!INO, J.:1wph1.t
@eatriC =e+arda DonCaes appeaed from the decision of the Court of First Instance
of 'ania, dismissin+ her compaint for partition, accountin+, reconve"ance and
dama+es and hodin+, as not subAect to reserve troncal, the properties which her
mother Fiomena Races inherited in $%3/ from Fiomena =e+arda (Civi Case 2o.
&///7). *he facts are as foows;
@enito =e+arda " Be a PaC, the son of @enito =e+arda " *uason, died I'aniaJ on
1une $&, $%//. 8e was survived b" his widow, Fiomena Races, and their seven
chidren; four dau+hters named @eatriC, Rosario, *eresa and Fiomena and three
sons named @enito, ,eAandro and 1ose.
On 1u" $2, $%/%, the rea properties eft b" @enito =e+arda " *uason were
partitioned in three equa portions b" his dau+hters, Consueo and Rita, and the heirs
of his deceased son @enito =e+arda " Be a PaC who were represented b" @enito F.
=e+arda.
Fiomena =e+arda " Races died intestate and without issue on 'arch $%, $%3/. 8er
soe heiress was her mother, Fiomena Races (da. de =e+arda.
'rs. =e+arda e.ecuted on 'a" $2, $%3& an affidavit adAudicatin+ e.traAudicia" to
hersef the properties which she inherited from her deceased dau+hter, Fiomena
=e+arda. *he said properties consist of the foowin+; 9BwphC9.DEt
(a) )avin+s deposit in the 2ationa Cit" @an- of 2ew
For- with a credit baance of P/,#%%.#/.
(b) $,32% shares of the @en+uet Consoidated 'inin+ Compan" and a $5& interest in
certain shares of the )an 'i+ue @rewer", *uason L =e+arda, =td., Phiippine
Duarant" Compan", Insuar =ife ,ssurance Compan" and the >anila Times.
(c) $5& of the properties described in *C* 2os. :022#, :02/& to :023/ (& tites),
:02#0, :02#$ and 7&7$2 of the 'ania re+istr" of deeds.
$52$st of the properties covered b" *C* 2os. 3:$#3, :3&$3, 3:20$, 3:202, 3:207,
3:20/, 3:20#, 3:$#0 and 3:$%2 of the 'ania re+istr" of deeds6
$52$st of the propert" described in *C* 2o. 33&7 of the re+istr" of deeds of RiCa,
now MueCon Cit"6 $5$3th of the propert" described in *C* 2o. %## of the re+istr"
of deeds of @a+uio6
$5&th of the ot and improvements at $2& ,vies described in *C* 2o. 3$:#2 of the
'ania re+istr" of deeds6 $5&th of the ots and improvements at $:$ )an Rafae
describe in *C* 2os. 703%7 and 3:$#$ of the 'ania re+istr" of deeds6
$5&th of the propert" described in *C* 2o. 3:$#/ of the 'ania re+istr" of deeds
()treets)6
52$st of the properties described in *C* 2os. 3:$%% and 7&77$ of the 'ania
re+istr" of deeds ()treets and ?stero);
252$st of the propert" described in *C* 2o. $/37: of tie re+istr" of deeds of
*0a"abas.
35
*hese are the properties in iti+ation in this case. ,s a resut of the affidavit of
adAudication, Fiomena Races succeeded her deceased dau+hter Fiomena =e+arda
as co!owner of the properties hed proindiviso b" her other si. chidren.
'rs. =e+arda on 'arch #, $%7/ e.ecuted two handwritten Identica documents
wherein she disposed of the properties, which she inherited from her dau+hter, in
favor of the chidren of her sons, @enito, ,eAandro and 1ose (si.teen +randchidren
in a). *he document reads; 9BwphC9.DEt
, mis hiAos ;
Bispon+o que se reparta a todos mis nietos hiAos de @en, 'andu " Pepito, os bienes
que he heredado de mi difunta hiAa Fiomena " tambien os acciones de a Bestieria
=a Rosario> recientemente comprada a os hermanos (aues =e+arda.
Be os bienes de mi hiAa Fiomena se deducira un tote de terreno que "o he 0donada
a as 8iAas de 1esus, en Duipit
=a case 2o. $:$ )an Rafae, a cede a mi hiAo 'andu soo a casa6 proque ea esta
construida sobre terreno de os hermanos =e+arda Races. 9BwphC9.DEt
()+d.) FI=O'?2, ROC?)
=?D,RB,
# 'arCo $%7/
Burin+ the period from 1u", $%7: to Februar", $%7% 'rs. =e+arda and her si.
survivin+ chidren partitioned the properties consistin+ of the one!third share in the
estate of @enito =e+arda " *uason which the chidren inherited in representation of
their father, @enito =e+arda " Be a PaC.
'rs. =e+arda died on )eptember 22, $%#&. 8er wi was admitted to probate as a
hoo+raphic wi in the order dated 1u" $#, $%#: of the Court of First Instance of
'ania in )pecia Proceedin+ 2o. &0:&:, *estate ?state of Fiomena Races (da. de
=e+arda. *he decree of probate was affirmed b" the Court of ,ppeas in Legarda vs.
2onzales, C,!D.R. 2o. 3/3:0!R, 1u" /0,$%&#.
In the testate proceedin+, @eatriC =e+arda DonCaes, a dau+hter of the testatri., fied
on 'a" 20, $%#: a motion to e.cude from the inventor" of her mother>s estate the
properties which she inherited from her deceased dau+hter, Fiomena, on the +round
that said properties are reservable properties which shoud be inherited b" Fiomena
=e+arda>s three sisters and three brothers and not b" the chidren of @enito,
,eAandro and 1ose, a surnamed =e+arda. *hat motion was opposed b" the
administrator, @enito F. =e+arda.
<ithout awaitin+ the resoution on that motion, 'rs. DonCaes fied on 1une 20,
$%#: an ordinar" civi action a+ainst her brothers, sisters, nephews and nieces and
her mother>s estate for the purpose of securin+ a decaration that the said properties
are reservabe properties which 'rs. =e+arda coud not bequeath in her hoo+raphic
wi to her +randchidren to the e.cusion of her three dau+hters and her three sons
()ee PaC vs. 'adri+a, $00 Phi. $0:7).
,s aread" stated, the ower court dismissed the action of 'rs. DonCaes. n this
appea under Repubic ,ct 2o. 7330 she contends in her si. assi+nments of error
that the ower court erred in not re+ardin+ the properties in question as reservabe
properties under artice :%$ of the Civi Code.
On the other hand, defendants!appeees in their si. counter!assi+nments of error
contend that the ower court erred in not hodin+ that 'rs. =e+arda acquired the
estate of her dau+hter FiomenaJ =e+arda in e.chan+e for her conAu+a and
hereditar" shares in the estate of her husband @enito =e+arda " Be a PaC and in not
hodin+ that 'rs. DonCaes waived her ri+ht to the reservabe properties and that her
caim is barred b" estoppe, aches and prescription.
*he preiminar" issue raised b" the private respondents as to the timeiness of 'rs.
DonCaes> petition for review is a cosed matter. *his Court in its resoution of
Becember $#, $%&$ denied respondents> motion to dismiss and +ave due course to
the petition for review.
In an appea under Repubic ,ct 2o. 7330 on" e+a issues can be raised under
undisputed facts. )ince on the basis of the stipuated facts the ower court resoved
on" the issue of whether the properties in question are subAect to reserva troncal
that is the on" e+a issue to be resoved in this appea.
*he other issues raised b" the defendants!appeees, particuar" those invovin+
factua matters, cannot be resoved in this appea. ,s the tria court did not pass
upon those issues, there is no ruin+ which can be reviewed b" this Court.
*he question is whether the disputed properties are reservabe properties under
artice :%$ of the Civi Code, former" artice :$$, and whether Fiomena Races
36
(da. de =e+arda coud dispose of them in his wi in favor of her +randchidren to
the e.cusion of her si. chidren.
Bid 'rs. =e+arda have the ri+ht to conve" mortis causa what she inherited from her
dau+hter Fiomena to the reservees within the third degree and to b"pass the
reservees in the second degree or shoud that inheritance automatica" +o to the
reservees in the second de+ree, the si. chidren of 'rs. =e+arda9
,s wi hereinafter be shown that is not a nove issue or a question of first
impression. t was resoved in .lorentino vs. .lorentino, 30 Phi. 3:0. @efore
discussin+ the appicabiit" to this case of the doctrine in the .lorentino case and
other pertinent ruin+s, it ma" be usefu to ma-e a brief discourse on the nature of
reserve troncal, aso caed lineal, familiar, e1traordinaria o semi-troncal.
'uch time, effort and ener+" were spent b" the parties in their five briefs in
descantin+ on the nature of reserve troncal which to+ether with the reserva viudal
and reversion legal, was aboished b" the Code Commission to prevent the
decedent>s estate from bein+ entaied, to eiminate the uncertaint" in ownership
caused b" the reservation (which uncertaint" impedes the improvement of the
reservabe propert") and to discoura+e the confinement of propert" within a certain
fami" for +enerations which situation ae+ed" eads to economic oi+arch", and is
incompatibe with the sociaiCation of ownership.
*he Code Commission re+arded the reservas as remnants of feudaism which
fomented a+rarian unrest. 'oreover, the reserves, insofar as the" penaiCe e+itimate
reationship, is considered unAust and inequitabe.
8owever, the awma-in+ bod", not a+reein+ entire" with the Code Commission,
restored the reserve troncal, a e+a institution which, accordin+ to 'anresa and
Castan *obenas has provo-ed questions and doubts that are difficut to resove.
<eserva troncal is provided for in artice :$$ of the )panish Civi Code, now artice
:%$, which reads; 9BwphC9.DEt
,R*. :$$. ? ascendiente que heredare de su descendiente bienes que este hubiese
adquirido por tituo ucrative de otro ascendiente, o de un hermano, se haa
obi+ado a reservas os que hubiere adquirido por ministerio de a e" en favor de os
parientes que eaten dentro de tercer +rade " perteneCcan a a inea de donde os
bienes proceden
,R*. :%$. *he ascendant who inherits from his descendant an" propert" which the
atter ma" have acquired b" +ratuitous tite from another ascendant, or a brother or
sister, is obi+ed to reserve such propert" as he ma" have acquired b" operation of
aw for the benefit of reatives who are within the third de+ree and who beon+ to
the ine from which said propert" came.
In reserve troncal ($) a descendant inherited or acquired b" +ratuitous tite propert"
from an ascendant or from a brother or sister6 (2) the same propert" is inherited b"
another ascendant or is acquired b" him b" operation of aw from the said
descendant, and (/) the said ascendant shoud reserve the said propert" for the
benefit of reatives who are within the third de+ree from the deceased descendant
(prepositus) and who beon+ to the ine from which the said propert" came.
)o, three transmissions are invoved; (I) a first transmission b" ucrative tite
(inheritance or donation) from an ascendant or brother or sister to the deceased
descendant6 (2) a posterior transmission, b" operation of aw (intestate succession or
e+itime) from the deceased descendant (causante de la reserve) in favor of another
ascendant, the reservor or reservista, which two transmissions precede the
reservation, and (/) a third transmissions of the same propert" (in consequence of
the reservation) from the reservor to the reservees (reservatarios) or the reatives
within the third de+ree from the deceased descendant beon+in+ to the ine of the
first ascendant, brother or sister of the deceased descendant (# Castan *obenas
Berecho Civi, Part , $%#0, #th ?d., pp. $%:!%).
If there are on" two transmissions there is no reserve. *hus, where one @onifacia
=acerna died and her properties were inherited b" her son, 1uan 'arbebe, upon the
death of 1uan, those ands shoud be inherited b" his haf!sister, to the e.cusion of
his materna first cousins. *he said ands are not reservabe propert" within the
meanin+ of artice :$$ (=acerna vs. (da. de Corcino, Phi. :&2).
*he persons invoved in reserve troncal are ($) the ascendant or brother or sister
from whom the propert" was received b" the descendant b" ucrative or +ratuitous
tite, (2) the descendant or prepositus (prepositus) who received the propert", (/) the
reservor (reservista) the other ascendant who obtained the propert" from the
(prepositus) b" operation of aw and (3) the reserves (reservatario) who is within
the third de+ree from the prepositus and who beon+s to the (line o tronco) from
which the propert" came and for whom the propert" shoud be reserved b" the
reservor.
37
*he reservees ma" be haf!brothers and sisters (Rodri+ueC vs. Rodri+ueC, $0$ Phi.
$0%:6 Chua vs. Court of First Instance of 2e+ros Occidenta, =!2%%0$, ,u+ust /$,
$%&&, &: )CR, 3$2). Fourth de+ree reatives are not incuded (1ardin vs.
(iama"or, &2 Phi. /%2).
*he rationae of reserve troncal is to avoid Ee pei+ro de que bienes poseidos
secuarmente por una famiia pasen bruscamente a tituo +ratuito a manos e.traNas
por e aCar de os enaces " muertes prematuras or impeder que, por un aCar de a
vide personas e.tranas a una famiia puedan adquirir bienes que sin aque hubieran
quedado en ea (# Castan *obenas Berecho Civi, Part , #th ?d., $%:0, p. 20/6
Padura vs. @adovino, $03 Phi. $0#7).
,n iustration of reserve troncal is found in ,droso vs. Sablan, 27 Phi. 2%7. n that
case, Pedro )aban inherited two parces of and from his father (ictorians. Pedro
died in $%02, sin+e and without issue. 8is mother, 'arceina ?droso, inherited
from him the two parces of and.
It was hed that the and was reservabe propert" in the hands of 'arceina. *he
reservees were Pabo )aban and @asiio )aban, the paterna unces of Pedro
)aban, the prepositus. 'arceina coud re+ister the and under the *orrens s"stem
in her name but the fact that the and was reservabe propert" in favor of her two
brothers!in!aw, shoud the" survive her, shoud be noted in the tite.
In another case, it appears that 'aria ,+ibot died intestate in $%0#. 8er one!haf
share of a parce of conAu+a and was inherited b" her dau+hter, 1uiana 'aNaac.
<hen 1uiana died intestate in $%20, said one!haf share was inherited b" her father,
,naceto 'aNaac who owned the other one!haf portion.
,naceto died intestate in $%32, survived b" his second wife and their si. chidren.
t was hed that the said one!haf portion was reservabe propert" in the hands of
,naceto 'aNaac and, upon his death, shoud be inherited b" =eona ,+ibot and
?varista ,+ibot, sisters of 'aria and materna aunts of 1uiana 'aNaac, who
beon+ed to the ine from which said one!haf portion came (,+ibot vs. 'aNaac
$$3 Phi. %#3).
Other iustrations of reserva troncal are found in Forentino vs Forentino, 30 Phi.
3:06 2ieva and ,caa vs. ,caa and Beocampo, 3$ Phi. %$76 'a+hiran+ and
2utierrez vs. alcita 3# Phi. 77$6 Lunsod vs. *rtega, 3# Phi. ##36 Dizon vs.
2alang, 3: Phi. #0$6 <iosa vs. <ocha, 3: Phi. &/&6 #enteno vs. #enteno 72 Phi.
/226 +elayo ernardo vs. Sio/o, 7: Phi. :%6 Director of Lands vs. (guas, #/ Phi.
2&%6 .allorfina vs. (bille, C, /% O.D. $&:3.
*he person from whom the de+ree shoud be rec-oned is the descendant, or the one
at the end of the ine from which the propert" came and upon whom the propert"
ast revoved b" descent. 8e is caed the prepositus (Cabardo vs. (ianueva. 33
Phi. $:#, $%0).
In the #abardo case, one Corneia ,bordo inherited propert" from her mother,
@asiia Cabardo. <hen Corneia died, her estate passed to her father, =orenCo
,bordo. n his hands, the propert" was reservabe propert". Hpon the death of
=orenCo, the person entited to the propert" was Rosa Cabardo, a materna aunt of
Corneia, who was her nearest reative within the third de+ree.
First cousins of the prepositus are in the fourth de+ree and are not reservees. *he"
cannot even represent their parents because representation is confined to reatives
within the third de+ree (Forentino vs. Forentino, 30 Phi. 3:0).
<ithin the third de+ree, the nearest reatives e.cude the more remote subAect to the
rue of representation. @ut the representative shoud be within the third de+ree from
the prepositus (Padura vs. @adovino, $03 Phi. $0#7).
<eserva troncal contempates e+itimate reationship. ie+itimate reationship and
reationship b" affinit" are e.cuded.
Dratuitous tite or titulo lucrativo refers to a transmission wherein the recipient
+ives nothin+ in return such as donacion and succession (Cabardo vs. (ianueva, 33
Phi. $:#, $:%!$%0, citin+ # 'anresa, Codi+o Civi, &th ?d., $%7 , p. /#0).
*he reserva creates two resoutor" conditions, name", ($) the death of the
ascendant obi+ed to reserve and (2) the surviva, at the time of his death, of
reatives within the third de+ree beon+in+ to the ine from which the propert" came
()ienes vs. ? ?sparcia Phi. /3%, /7/).
*he reservor has the e+a tite and dominion to the reservabe propert" but subAect
to the resoutor" condition that such tite is e.tin+uished if the reservor predeceased
the reservee. *he reservor is a usufructuar" of the reservabe propert". 8e ma"
aienate it subAect to the reservation. *he transferee +ets the revocabe and
conditiona ownership of the reservor. *he transferee>s ri+hts are revo-ed upon the
surviva of the reservees at the time of the death of the reservor but become
38
indefeasibe when the reservees predecease the reservor. ()ienes vs. ?sparcia, $$$
Phi. /3%, /7/6 ?droso vs. )aban, 27 Phi. 2%76 =unsod vs. Orte+a, 3# Phi. ##36
Forentino vs. Forentino, 30 Phi. 3:0; Birector of =ands vs. ,+uas, #/ Phi. 2&%.)
*he reservor>s tite has been compared with that of the vendee a retro in a pacta de
retro sae or to a fideicomiso conditional.
*he reservor>s aienation of the reservabe propert" is subAect to a resoutor"
condition, meanin+ that if at the time of the reservor>s death, there are reservees, the
transferee of the propert" shoud deiver it to the reservees. f there are no reservees
at the time of the reservor>s death, the transferee>s tite woud become absoute.
(=unsod vs. Orte+a, 3# Phi. ##36 Dueco vs. =acson, $$: Phi. %336 'ono vs.
2equia %/ Phi. $20).
On the other hand, the reserves has on" an inchoate, e.pectant or contin+ent ri+ht.
8is e.pectant ri+ht woud disappear if he predeceased the reservor. t woud become
absoute shoud the reservor predecease the reserves.
*he reserves cannot impu+n an" conve"ance made b" the reservor but he can
require that the reservabe character of the propert" be reco+niCed b" the purchaser
(Riosa vs. Rocha 3: Phi. &/&6 ?droso vs. )aban, 27 Phi. 2%7, /$2!/6 Dueco vs.
=acson, $$: Phi. %33).
*here is a hodin+ that the renunciation of the reservee>s ri+ht to the reservabe
propert" is ie+a for bein+ a contract re+ardin+ future inheritance ((ea"o @ernardo
vs. )ioAo, 7: Phi. :%, %#).
,nd there is a dictum that the reservee>s ri+ht is a rea ri+ht which he ma" aienate
and dispose of conditiona". *he condition is that the aienation sha transfer
ownership to the vendee on" if and when the reserves survives the reservor ()ienes
vs. ?sparcia, $$$ Phi. /3%, /7/). 9BwphC9.DEt
*he reservatario receives the propert" as a conditiona heir of the descendant
(prepositus) said propert" mere" revertin+ to the ine of ori+in from which it had
temporari" and accidenta" sta"ed durin+ the reservista=s ifetime. *he authorities
are a a+reed that there bein+ reservatarios that survive the reservists, the atter
must be deemed to have enAo"ed no more than a than interest in the reservabe
propert". ($. 1. @. =. Re"es in Cane vs. Birector of =ands, $07 Phi. 7.)
?ven durin+ the reservista=s ifetime, the reservatarios, who are the utimate
acquirers of the propert", can aread" assert the ri+ht to prevent the reservista from
doin+ an"thin+ that mi+ht frustrate their reversionar" ri+ht, and, for this purpose,
the" can compe the annotation of their ri+ht in the re+istr" of propert" even whie
the (reservista) is aive (=e" 8ipotecaria de Htramar, ,rts. $#:, $%%6 ?droso vs.
)aban, 27 Phi. 2%7).
*his ri+ht is incompatibe with the mere e.pectanc" that corresponds to the natura
heirs of the reservista t is i-ewise cear that the reservabe propert" is no part of the
estate of the reservista who ma" not dispose of them (it) b" wi, so on+ as there are
reservatarios e.istin+ (,rro"o vs. Derona, 7: Phi. 22#, 2/&).
*he atter, therefore, do not inherit from the reservista but from the descendant
(prepositus) of whom the reservatarios are the heirs mortis causa, subAect to the
condition that the" must survive the reservista. ()ancheC Roman, (o. (I *omo 2, p.
2:#6 'anresa, Commentaries, (o. #, #th ?d., pp. 2&3, /$0, cited b" 1. 1.@.=. Re"es
in Padura vs. @adovino, =!$$%#0, Becember 2&, $%7:, $03 Phi. $0#7).
8ence, upon the reservista=s death, the reservatario nearest to the prepositus
becomes, Eautomatica" and b" operation of aw, the owner of the reservabe
propert".E (Cane vs. Birector of =ands, $07 Phi. 7.)
In the instant case, the properties in question were indubitab" reservabe properties
in the hands of 'rs. =e+arda. Hndoubted", she was a reservor. *he reservation
became a certaint" when at the time of her death the reservees or reatives within the
third de+ree of the prepositus Fiomena =e+arda were ivin+ or the" survived 'rs.
=e+arda.
)o, the utimate issue in this case is whether 'rs. =e+arda, as reservor, coud
conve" the reservabe properties b" wi or mortis causa to the reservees within the
third degree (her si.teen +randchidren) to the e.cusion of the reservees in the
second degree, her three dau+hters and three sons. ,s indicated at the outset, that
issue is aread" res /udicata or cosa /uzgada.
<e hod that 'rs. =e+arda coud not conve" in her hoo+raphic wi to her si.teen
+randchidren the reservabe properties which she had inherited from her dau+hter
Fiomena because the reservabe properties did not form part of her estate (Cabardo
vs. (ianueva, 33 Phi. $:#, $%$). *he reservor cannot ma-e a disposition mortis
causa of the reservabe properties as on+ as the reservees survived the reservor.
39
,s repeated" hed in the #ano and 3adura cases, the reservees inherit the
reservabe properties from the prepositus, not from the reservor.
,rtice :%$ cear" indicates that the reservabe properties shoud be inherited b" a
the nearest reatives within the third de+ree from the prepositus who in this case are
the si. chidren of 'rs. =e+arda. )he coud not seect the reservees to whom the
reservabe propert" shoud be +iven and deprive the other reservees of their share
therein.
*o aow the reservor in this case to ma-e a testamentar" disposition of the
reservabe properties in favor of the reservees in the third degree and, consequent",
to i+nore the reservees in the second degree woud be a +arin+ vioation of artice
:%$. *hat testamentar" disposition cannot be aowed.
<e have stated earier that this case is +overned b" the doctrine of .lorentino vs.
.lorentino, 30 Phi. 3:0, a simiar case, where it was rued; 9BwphC9.DEt
Reservabe propert" eft, throu+h a wi or otherwise, b" the death of ascendant
(reservista) to+ether with his own propert" in favor of another of his descendants as
forced heir, forms no part of the atter>s awfu inheritance nor of the e+itime, for
the reason that, as said propert" continued to be reservabe, the heir receivin+ the
same as an inheritance from his ascendant has the strict obi+ation of its deiver" to
the reatives, within the third de+ree, of the predecessor in interest (prepositus),
without preAudicin+ the ri+ht of the heir to an aiquot part of the propert", if he has
at the same time the ri+ht of a reservatario (reserves).
n the Forentino case, it appears that ,poonio Forentino II and his second wife
)everina FaC de =eon be+ot two chidren, 'ercedes and ,poonio III. *hese two
inherited properties from their father. Hpon ,poonio III death in $:%$, his
properties were inherited b" his mother, )everina, who died in $%0:. n her wi, she
instituted her dau+hter 'ercedes as heiress to a her properties, incudin+ those
comin+ from her deceased husband throu+h their son, ,poonio III.
*he survivin+ chidren, be+otten b" ,poonio II with his first wife ,ntonia FaC de
=eon and the descendants of the deceased chidren of his first marria+e, sued
'ercedes Forentino for the recover" of their share in the reservabe properties,
which )everina de =eon had inherited from ,poonio III which the atter had
inherited from his father ,poonio II and which )everina wied to her dau+hter
'ercedes.
Paintiff>s theor" was that the said properties, as reservabe properties, coud not be
disposed of in )everina>s wi in favor of 'ercedes on". *hat theor" was sustained
b" this Court.
!t was held that the said properties, being reservable properties, did not form part
of Severina=s estate and could not be inherited from her by her daughter >ercedes
alone.
,s there were seven reservees, 'ercedes was entited, as a reserves, to one!seventh
of the properties. *he other si. sevenths portions were adAudicated to the other si.
reservees.
Hnder the rue of stare decisis et non quieta movere, we are bound to foow in this
case the doctrine of the .lorentino case. *hat doctrine means that as on+ as durin+
the reservor>s ifetime and upon his death there are reatives within the third de+ree
of the prepositus re+ardess of whether those reservees are common descendants of
the reservor and the ascendant from whom the propert" came, the propert" retains
its reservabe character. *he propert" shoud +o to the nearest reservees. *he
reservor cannot, b" means of his wi, choose the reserves to whom the reservabe
propert" shoud be awarded.
*he ae+ed opinion of )ancheC Roman that there is no reserva troncal when the
on" reatives within the third de+ree are the common descendants of the
predeceased ascendant and the ascendant who woud be obi+ed to reserve is
irreevant and sans bindin+ force in the i+ht of the ruin+ in the .lorentino case.
It is contended b" the appeees herein that the properties in question are not
reservabe properties because on" reatives within the third de+ree from the
paterna ine have survived and that when 'rs. =e+arda wied the said properties to
her si.teen +randchidren, who are third!de+ree reatives of Fiomena =e+arda and
who beon+ to the paterna ine, the reason for the reserva troncal has been satisfied;
Eto prevent persons outside a fami" from securin+, b" some specia accident of ife,
propert" that woud otherwise have remained thereinE.
*hat same contention was advanced in the .lorentino case where the reservor wied
the reservabe properties to her dau+hter, a fu!bood sister of the prepositus and
i+nored the other si. reservors, the reatives of the haf!bood of the prepositus.
In reAectin+ that contention, this Court hed that the reservabe propert" bequeathed
b" the reservor to her dau+hter does not form part of the reservor>s estate nor of the
40
dau+hter>s estate but shoud be +iven to a the seven reservees or nearest reatives of
the prepositus within the third de+ree.
*his Court noted that, whie it is true that b" +ivin+ the reservabe propert" to on"
one reserves it did not pass into the hands of stran+ers, nevertheess, it is i-ewise
true that the heiress of the reservor was only one of the reservees and there is no
reason founded upon law and /ustice why the other reservees should be deprived of
their shares in the reservable property (pp. :%3!7).
,pp"in+ that doctrine to this case, it resuts that 'rs. =e+arda coud not dispose of
in her wi the properties in question even if the disposition is in favor of the
reatives within the third de+ree from Fiomena =e+arda. *he said properties, b"
operation of ,rtice :%$, shoud +o to 'rs. =e+arda>s si. chidren as reservees
within the second de+ree from Fiomena =e+arda.
It shoud be repeated that the reservees do not inherit from the reservor but from the
reservor but from the prepositus, of whom the reservees are the heirs mortis causa
subAect to the condition that the" must survive the reservor (Padura vs. @adovino,
=!$$%#0, Becember 2&, $%7:, $03 Phi. $0#7).
*he tria court said that the disputed properties ost their reservabe character due to
the non!e.istence of third!de+ree reatives of Fiomena =e+arda at the time of the
death of the reservor, 'rs. =e+arda, beon+in+ to the =e+arda fami", Ee.cept third!
de+ree reatives who pertain to bothE the =e+arda and Races ines.
*hat hodin+ is erroneous. *he reservation coud have been e.tin+uished on" b" the
absence of reservees at the time of 'rs. =e+arda>s death. )ince at the time of her
death, there were (and sti are) reservees beon+in+ to the second and third de+rees,
the disputed properties did not ose their reservabe character. *he disposition of the
said properties shoud be made in accordance with artice :%$ or the rue on reserva
tronca and not in accordance with the reservor>s hoo+raphic wi. *he said
properties did not form part of 'rs. =e+arda>s estate. (Cane vs. Birector of =ands,
$07 Phi. , 3).
<8?R?FOR?, the ower court>s decision is reversed and set aside. t is hereb"
adAud+ed that the properties inherited b" Fiomena Roces (da. de =e+arda from her
dau+hter Fiomena =e+arda, with a the fruits and accessions thereof, are reservabe
properties which beon+ to @eatriC, Rosario, *eresa, @enito, ,eAandro and 1ose, a
surnamed =e+arda " Roces, as reservees. *he shares of Rosario =. (ades and
@enito F. =e+arda, who died in $%#% and $%&/, respective", shoud pertain to their
respective heirs. Costs a+ainst the private respondents.
41
G.R. No. L-10701 *a'uary 17, 1939
"ARIA ANO, appicant!appeee,
vs.
5IRETOR OF LAN5S, E!STA%!IA G!ERRERO, ET AL., oppositors!
appeants.
*OSE FERNAN5E+, ET AL., oppositors!appeants.
RE,ES, *.#.L., J.:
In an amended decision dated October %, $%7$, issued in =and Re+istration Case
2o. $2, D.=.R.O. Rec. 2o. 2:/7, the Court of First Instance of )orso+on decreed
the re+istration of =ots 2os. $&%: and $&%% of the 1uban ()orso+on) Cadastre, under
the foowin+ terms and conditions;
In view of the fore+oin+, and it appearin+ that the notices have been du" pubished
and posted as required b" aw, and that the tite of the appicant to the above!
mentioned two parces of and is re+istrabe in aw, it is hereb" adAud+ed and
decreed, and with reaffirmation of the order of +enera defaut, that the two parces
of and described in pan )<O!23$72, -nown as =ots 2os. $&%: and $&%% of the
Cadastra )urve" of 1uban, with their improvements, be re+istered in the name of
'aria Cano, Fiipina, &$ "ears of a+e, widow and resident of 1uban, province of
)orso+on, with the understandin+ that =ot 2o. $&%% sha be subAect to the ri+ht of
reservation in favor of ?ustaquia Duerrero pursuant to ,rtice :%$ of the Civi code.
,fter this decision sha have become fina for ac- of appea therefrom within the
/0!da" period from its promu+ation, et the correspondin+ decree issue.
)o ordered. (Rec. ,pp. pp. $:!$%)
*he decision havin+ become fina, the decree and the Certificate of *ite (2o. 0!20)
were issued in the name of 'aria Cano, subAect to reserva troncal in favor of
?ustaquia Duerrero. In October $%77, counse for the reserve (reservatorio)
Duerrero fied a motion with the Cadastra Court, ae+in+ the death of the ori+ina
re+istered owner and reservista, 'aria Cano, on )eptember :, $%77, and pra"in+
that the ori+ina Certificate of *ite be ordered canceed and a new one issued in
favor of movant ?ustaquia Duerrero6 and that the )heriff be ordered to pace her in
possession of the propert". *he motion was opposed b" 1ose and *eotimo
FernandeC, sons of the reservista 'aria Cano, who contended that the appication
and operation of the reserva troncal shoud be ventiated in an ordinar" contentious
proceedin+, and that the Re+istration Court did not have Aurisdiction to +rant the
motion.
In view of the recorded reserva in favor of the appeee, as e.press" noted in the
fina decree of re+istration, the ower court +ranted the petition for the issuance of a
new certificate, for the reason that the death of the reservista vested the ownership
of the propert" in the petitioner as the soe reservatorio troncal.
*he oppositors, heirs of the reservista 'aria Cano, du" appeaed from the order,
insistin+ that the ownership of the reservatorio can not be decreed in a mere
proceedin+ under sec. $$2 of ,ct 3%#, but requires a Audicia administration
proceedin+s, wherein the ri+hts of appeee, as the reservatorio entited to the
reservabe propert", are to be decared. In this connection, appeants ar+ue that the
reversion in favor of the reservatorio requires the decaration of the e.istence of the
foowin+ facts;
($) *he propert" was received b" a descendant b" +ratuitous tite from an ascendant
or from a brother or sister6
(2) )aid descendant dies without issue6
(/) *he propert" is inherited b" another ascendant b" operation of aw6 and
(3) *he e.istence of reatives within the third de+ree beon+in+ the ine from which
said propert" came. (,ppeants> @rief, p. :)
<e find the appea untenabe. *he requisites enumerated b" appeants have aread"
been decared to e.ist b" the decree of re+istration wherein the ri+hts of the appeee
as reservatario troncal were e.press" reco+niCed;
From the above!quoted a+reed stipuation of facts, it is evident that =ot 2o. $&%%
was acquired b" the ,ppeant 'aria Cano b" inheritance from her deceased
dau+hter, =ourdes Duerrero who, in turn, inherited the same from her father
?varisto Duerrero and, hence, fas square" under the provisions of ,rtice :%$ of
the Civi Code6 and that each and ever"one of the private oppositors are within the
third de+ree of consa+uinit" of the decedent ?varisto Duerrero, and who beon+in+
to the same ine from which the propert" came.
42
It appears however, from the a+reed stipuation of facts that with the e.ception of
?ustaquia Duerrero, who is the on" ivin+ dau+hter of the decedent ?varisto
Duerrero, b" his former marria+e, a the other oppositors are +randchidren of the
said ?varisto Duerrero b" his former marria+es. ?ustaquia Duerrero, bein+ the
nearest of -in, e.cudes a the other private oppositors, whose decree of
reationship to the decedent is remoter (,rtice %#2, Civi Code6 Birector of =ands
vs. ,+uas, #2 Phi., 2&%). (Rec. ,pp. pp. $#!$&)
*his decree havin+ become fina, a persons (appeees incuded) are bared thereb"
from contestin+ the e.istence of the constituent eements of the reserva. *he on"
requisites for the passin+ of the tite from the reservista to the appeee are; ($) the
death of the reservista6 and (2) the fact that the reservatario has survived the
reservista. @oth facts are admitted, and their e.istence is nowhere questioned.
*he contention that an intestac" proceedin+ is sti necessar" rests upon the
assumption that the reservatario wi succeed in, or inherit, the reservabe propert"
from the reservista. *his is not true. *he reservatario is not the reservista=s
successor mortis causa nor is the reservabe propert" part of the reservista>s estate6
the reservatario receives the propert" as a conditiona heir of the descendant
( prepositus), said propert" mere" revertin+ to the ine of ori+in from which it had
temporari" and accidenta" stra"ed durin+ the reservista>s ifetime. *he authorities
are a a+reed that there bein+ reservatarios that survive the reservista, the atter
must be deemed to have enAoined no more than a ife interest in the reservabe
propert".
It is a consequence of these principes that upon the death of the reservista, the
reservatario nearest to the prepositus (the appeee in this case) becomes,
automatica" and b" operation of aw, the owner of the reservabe propert". ,s
aread" stated, that propert" is no part of the estate of the reservista, and does not
even answer for the debts of the atter. 8ence, its acquisition b" the reservatario
ma" be entered in the propert" records without necessit" of estate proceedin+s,
since the basic requisites therefor appear of record. It is equa" we setted that the
reservabe propert" can not be transmitted b" a reservista to her or his own
successors mortis causa,(i-e appeants herein) so on+ as a reservatario within the
third de+ree from the prepositus and beon+in+ to the ine whence the propert"
came, is in e.istence when the reservista dies.
Of course, where the re+istration decree mere" specifies the reservabe character of
the propert", without determinin+ the identit" of the reservatario (as in the case of
Birector of =ands vs. ,+uas, #/ Phi., 2&%) or where severa reservatarios dispute
the propert" amon+ themseves, further proceedin+s woud be unavoidabe. @ut this
is not the case. *he ri+hts of the reservataria ?ustaquia Duerrero have been
e.press" reco+niCed, and it is nowhere caimed that there are other reservatarios of
equa or nearer de+ree. It is thus apparent that the heirs of the reservista are mere"
endeavorin+ to proon+ their enAo"ment of the reservabe propert" to the detriment
of the part" awfu" entited thereto.
<e find no error in the order appeaed from and therefore, the same is affirmed with
costs a+ainst appeants in both instances.