Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-770

April 27, 1948

ANGEL T. LIMJOCO, petitioner,

vs.
INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.
Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner.
Bienvenido A. Tan for respondent.
HILADO, J.:
Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel
Ibaez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of
public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said
commission held that the evidence therein showed that the public interest and convenience will be
promoted in a proper and suitable manner "by authorizing the operation and maintenance of another
ice plant of two and one-half (2-) tons in the municipality of San Juan; that the original applicant
Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is
financially capable of maintaining the proposed service". The commission, therefore, overruled the
opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth
Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the
deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial
Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice
plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan
and to sell the ice produced from said plant in the said Municipality of San Juan and in the
Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in
detail (petitioner's brief, pp. 33-34).
Petitioner makes four assignments of error in his brief as follows:
1. The decision of the Public Service Commission is not in accordance with law.
2. The decision of the Public Service Commission is not reasonably supported by evidence.
3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage
Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the
increased demand.
4. The decision of the Public Service Commission is an unwarranted departure from its
announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2,
petitioner's brief.)
In his argument petitioner contends that it was error on the part of the commission to allow the
substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party

applicant in the case then pending before the commission, and in subsequently granting to said
estate the certificate applied for, which is said to be in contravention of law.
If Pedro O. Fragante had not died, there can be no question that he would have had the right to
prosecute his application before the commission to its final conclusion. No one would have denied
him that right. As declared by the commission in its decision, he had invested in the ice plant in
question P 35,000, and from what the commission said regarding his other properties and business,
he would certainly have been financially able to maintain and operate said plant had he not died. His
transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and
continued to be such till his demise. The commission declared in its decision, in view of the evidence
before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid
right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature
did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a
right was property despite the possibility that in the end the commission might have denied
application, although under the facts of the case, the commission granted the application in view of
the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum
of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule,
should descend to his estate as an asset". Such certificate would certainly be property, and the right
to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in
his lifetime, and survived to his estate and judicial administrator after his death.
If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life
of the option he died, if the option had been given him in the ordinary course of business and not out
of special consideration for his person, there would be no doubt that said option and the right to
exercise it would have survived to his estate and legal representatives. In such a case there would
also be the possibility of failure to acquire the property should he or his estate or legal representative
fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted
right to apply for and acquire the desired certificate of public convenience the evidence
established that the public needed the ice plant was under the law conditioned only upon the
requisite citizenship and economic ability to maintain and operate the service. Of course, such right
to acquire or obtain such certificate of public convenience was subject to failure to secure its
objective through nonfulfillment of the legal conditions, but the situation here is no different from the
legal standpoint from that of the option in the illustration just given.
Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among
other cases, for the protection of the property or rights of the deceased which survive, and it says
that such actions may be brought or defended "in the right of the deceased".
Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the
making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall
come to his possession or knowledge, or to the possession of any other person for him.
In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief
Justice of this Court draws the following conclusion from the decisions cited by him:
Therefore, unless otherwise expressly provided by law, any action affecting the property
or rights (emphasis supplied) of a deceased person which may be brought by or against him
if he were alive, may likewise be instituted and prosecuted by or against the administrator,
unless the action is for recovery of money, debt or interest thereon, or unless, by its very
nature, it cannot survive, because death extinguishes the right . . . .

It is true that a proceeding upon the application for a certificate of public convenience before the
Public Service Commission is not an "action". But the foregoing provisions and citations go to prove
that the decedent's rights which by their nature are not extinguished by death go to make up a part
and parcel of the assets of his estate which, being placed under the control and management of the
executor or administrator, can not be exercised but by him in representation of the estate for the
benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right
involved happens to consist in the prosecution of an unfinished proceeding upon an application for a
certificate of public convenience of the deceased before the Public Service Commission, it is but
logical that the legal representative be empowered and entitled in behalf of the estate to make the
right effective in that proceeding.
Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code,
respectively, consider as immovable and movable things rights which are not material. The same
eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been
deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are
also property for juridical purposes.
Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among
other things, "an option", and "the certificate of the railroad commission permitting the operation of a
bus line", and on page 748 of the same volume we read:
However, these terms (real property, as estate or interest) have also been declared to
include every species of title, inchoate or complete, and embrace rights which lie in contract,
whether executory or executed. (Emphasis supplied.)
Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a
"person" within the meaning of the Public Service Act.
Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of
the State of Indiana:
As the estate of the decedent is in law regarded as a person, a forgery committed after the
death of the man whose name purports to be signed to the instrument may be prosecuted as
with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E.
763, 57 Am. Rep. 77.
The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed
after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that
the information did not aver that the forgery was committed with the intent to defraud any person.
The Court, per Elliott, J., disposed of this objection as follows:
. . . The reason advanced in support of this proposition is that the law does not regard the
estate of a decedent as a person. This intention (contention) cannot prevail. The estate of
the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its
legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb.
Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port.
(Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A
natural person is a human being. Artificial persons include (1) a collection or succession of
natural persons forming a corporation; (2) a collection of property to which the law attributes
the capacity of having rights and duties. The latter class of artificial persons is recognized
only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased
person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness

of the definition given by the authors from whom we have quoted, for they declare that it is
sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the
estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept
this definition as correct, there would be a failure of justice in cases where, as here, the
forgery is committed after the death of a person whose name is forged; and this is a result to
be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding
such a result; for, to our minds, it seems reasonable that the estate of a decedent should be
regarded as an artificial person. It is the creation of law for the purpose of enabling a
disposition of the assets to be properly made, and, although natural persons as heirs,
devises, or creditors, have an interest in the property, the artificial creature is a distinct legal
entity. The interest which natural persons have in it is not complete until there has been a
due administration; and one who forges the name of the decedent to an instrument
purporting to be a promissory note must be regarded as having intended to defraud the
estate of the decedent, and not the natural persons having diverse interests in it, since ha
cannot be presumed to have known who those persons were, or what was the nature of their
respective interest. The fraudulent intent is against the artificial person, the estate and
not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E.
914-915.)
In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is
considered a "person", for quashing of the proceedings for no other reason than his death would
entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not
counting the expenses and disbursements which the proceeding can be presumed to have
occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this
jurisdiction there are ample precedents to show that the estate of a deceased person is also
considered as having legal personality independent of their heirs. Among the most recent cases may
be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal
plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said
estate along with the other plaintiffs in these words:
. . . the judgment appealed from must be affirmed so far as it holds that defendants
Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . .
Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the
heirs of a deceased person were considered in contemplation of law as the continuation of his
personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the
rights and obligations of the decedent by the mere fact of his death. It was so held by this Court
in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure,
article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13,
22. In that case, as well as in many others decided by this Court after the innovations introduced by
the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant
doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of
the heirs directly, that becomes vested and charged with his rights and obligations which survive
after his demise.
The heirs were formerly considered as the continuation of the decedent's personality simply by legal
fiction, for they might not have been flesh and blood the reason was one in the nature of a legal
exigency derived from the principle that the heirs succeeded to the rights and obligations of the
decedent. Under the present legal system, such rights and obligations as survive after death have to
be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not
indulged, there would be no juridical basis for the estate, represented by the executor or
administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason

and purpose for indulging the fiction is identical and the same in both cases. This is why according to
the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954,
among the artificial persons recognized by law figures "a collection of property to which the law
attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or
deceased person.
Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be
considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act,
as amended, particularly the proviso thereof expressly and categorically limiting the power of the
commission to issue certificates of public convenience or certificates of public convenience and
necessity "only to citizens of the Philippines or of the United States or to corporations,
copartnerships, associations, or joint-stock companies constituted and organized under the laws of
the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such
entities must belong entirely to citizens of the Philippines or of the United States.
Within the Philosophy of the present legal system, the underlying reason for the legal fiction by
which, for certain purposes, the estate of the deceased person is considered a "person" is the
avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and
fulfilling such legal obligations of the decedent as survived after his death unless the fiction is
indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of
the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said
State said:
. . . It seems reasonable that the estate of a decedent should be regarded as an artificial
person. it is the creation of law for the purpose of enabling a disposition of the assets to be
properly made . . . .
Within the framework and principles of the constitution itself, to cite just one example, under the bill
of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to
natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial
or juridical persons, for otherwise these latter would be without the constitutional guarantee against
being deprived of property without due process of law, or the immunity from unreasonable searches
and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no
less than natural, persons in these constitutional immunities and in others of similar nature. Among
these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the
framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or
juridical person for the purposes of the settlement and distribution of his estate which, of course,
include the exercise during the judicial administration thereof of those rights and the fulfillment of
those obligations of his which survived after his death. One of those rights was the one involved in
his pending application before the Public Service Commission in the instant case, consisting in the
prosecution of said application to its final conclusion. As stated above, an injustice would ensue from
the opposite course.
How about the point of citizenship? If by legal fiction his personality is considered extended so that
any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be
exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason
for denying the application of the same fiction to his citizenship, and for not considering it as likewise
extended for the purposes of the aforesaid unfinished proceeding before the Public Service
Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of
the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the
legal sense, any more than he could have done if Fragrante had lived longer and obtained the
desired certificate. The fiction of such extension of his citizenship is grounded upon the same

principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction
is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by
reason of his death to the loss of the investment amounting to P35,000, which he has already made
in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the
Public Service Commission of this Court.
We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its
provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for
reasons already stated our law indulges the fiction of extension of personality, if for such reasons the
estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find
no justification for refusing to declare a like fiction as to the extension of his citizenship for the
purposes of this proceeding.
Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of
record, he would have obtained from the commission the certificate for which he was applying. The
situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen.
And its economic ability to appropriately and adequately operate and maintain the service of an ice
plant was the same that it received from the decedent himself. In the absence of a contrary showing,
which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not,
there is the simple expedient of revoking the certificate or enjoining them from inheriting it.
Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572
of the Public Service Commission to its final conclusion, both the personality and citizenship of
Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service
Act, as amended, in harmony with the constitution: it is so adjudged and decreed.
Decision affirmed, without costs. So ordered.
Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

Separate Opinions
PERFECTO, J., dissenting:
Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a certificate of public
convenience to operate an ice plant in San Juan, Rizal. The limitation is in accordance with section 8
of Article XIV of the Constitution which provides
No franchise, certificate, or any other form of authorization for the operation of a public utility
shall be granted except to citizens of the Philippines or to corporations or other entities
organized under the laws of the Philippines, sixty per centum of the capital of which is owned
by citizens of the Philippines, nor such franchise, certificate or authorization be exclusive in
character or for a longer period than fifty years. No franchise granted to any individual, firm
or corporation, except under the condition that it shall be subject to amendment, alteration,
or repeal by Congress when the public interest so requires.

The main question in this case is whether the estate of Pedro O. Fragrante fulfills the citizenship
requirement. To our mind, the question can be restated by asking whether the heirs of Pedro O.
Fragrante fulfill the citizenship requirement of the law.
The estate is an abstract entity. As such, its legal value depends on what it represents. It is a device
by which the law gives a kind of personality and unity to undetermined tangible persons, the heirs.
They inherit and replace the deceased at the very moment of his death. As there are procedural
requisites for their identification and determination that need time for their compliance, a legal fiction
has been devised to represent them. That legal fiction is the estate, a liquid condition in process of
solidification.
The estate, therefore, has only a representative value. What the law calls estate is, a matter of fact,
intended to designate the heirs of the deceased. The question, therefore, in this case, boils down to
the citizenship of the heirs of Fragrante.
There is nothing in the record to show conclusively the citizenship of the heirs of Fragrante. If they
are Filipino citizens, the action taken by the Public Service Commission should be affirmed. If they
are not, it should be reversed.
Petitioner alleges that the estate is just a front or dummy for aliens to go around the citizenship
constitutional provision. It is alleged that Gaw Suy, the special administrator of the estate, is an alien.
We are of the opinion that the citizenship of the heirs of Fragrante should be determined by the
Commission upon evidence that the party should be present. It should also determine the dummy
question raised by the petitioner.
We are of opinion and so vote that the decision of the Public Service Commission of May 21, 1946,
be set aside and that the Commission be instructed to receive evidence of the above factual
questions and render a new decision accordingly.
epublic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 559

March 14, 1903

MANUEL BARRIOS Y BARREDO, plaintiff-appellant,

vs.
MARIA PASCUALA DOLOR, ET AL., defendants-appellees.
Simplicio del Rosario, for appellant.
Maria Pascuala Dolor, appellee.
MAPA, J.:
The plaintiff has brought an action for the recovery from the defendants, heirs of the late Don Ciriaco
Demonteverde, of one-half of a sugar estate and the stock thereon, which he claims to have

purchased from the said Don Ciriaco Demonteverde. In support of his contention as to the law of the
case he attached to the complaint a public instrument which appears to have been executed by
himself and Demonteverde, February 3, 1883, in which, according to the plaintiff, a stipulation is
made for a contract of partnership for the operation of the said estate, and, furthermore, a
community, of ownership is established with respect to the estate in favor of the two parties to this
instrument. It does not appear that this instrument has been recorded in the registry of property.
Service of the complaint having been had on the defendants, Doa Maria Pascuala Dolor raised an
incidental issue as a previous question, praying that the instrument referred to be ruled out of
evidence on the ground that it had not been recorded in the registry of property, and that it be
returned to the plaintiff without leaving in the record any transcript or copy thereof or extract
therefrom, resting this contention upon article 389 of the Mortgage Law. This motion was granted by
the judge by order of the 24th of March, 1898, against which the plaintiff appeals.
The article cited is literally as follows: "From the time this law goes into operation the ordinary and
special courts and the Government offices will not admit any document or instrument by which rights
subject to inscription according to this law are constituted, transmitted, acknowledged, modified, or
extinguished, unless recorded in the register, if the object of the presentation of such document is to
enforce, to the prejudice of a third person, a right which should have been recorded."
In view of the latter part of this article, the question has been raised in this incidental issue whether
the defendants, as heirs of Don Ciriaco Demonteverde, can and should be regarded as third persons
for the purposes of the Mortgage Law, with respect to the contract executed by Demonteverde and
evidenced by the instrument above mentioned.
The Mortgaged Law itself, in article 27, gives the definition of a third person, which is, "he who has
not taken part in the act or contract recorded."
According to this parties to a contract are not third persons; consequently, Demonteverde was not a
third person with respect to the contract entered into by him and evidenced by the instrument in
question. He not being such a third person, neither can his heirs be so regarded, nor should they be
so regarded with respect to the same contract, because they are only the judicial continuation of his
personality, they having been subrogated, by virtue of the right of succession, to all his rights and
obligations, in accordance with provisions of article 661 of the Civil Code.
This doctrine, which is a mere consequence of the general principles of law, has received express
sanction, in the decisions of the supreme court of Spain. In its judgment of the 27th of January,
1881, the latter held that acts, both in court and out, consented to by the person who lawfully took
part therein, are effective with respect to the heirs or successors of such parties, who are not be
regarded as third persons for this purpose; and in its judgment of the 28th of January, 1892, it was
decided by the same court that heirs are nothing more than the continuation of the legal personality
of their decedent and can not be considered in any degree as third persons within the meaning of
article 27 of the Mortgage Law.
The defendants, therefore, are not third persons with respect to the contract entered into by their
decedent, Don Ciriaco Demonteverde, in the instrument of February 3, 1883, and they therefore can

not avail themselves of the prohibition contained in article 389 of the Mortgage Law for the purpose
of opposing the admission of this instrument as evidence in the case, because not recorded in the
registry of property. This prohibition was established solely and exclusively in favor of those who,
within the meaning of that law, are third persons. Were it otherwise, the position of the defendants
would be superior to that of the person whom they derived their rights, because he, not being a third
person, could not set up such an exception. This would certainly be most illogical from a legal point
of view, in view of the fact that the heir is, as above stated, a mere continuation of the civil
personality of his decedent.
The defendants not being third persons, it becomes unnecessary to decide whether the instrument
referred to is or is not subject to inscription in accordance with article 2 of the Mortgage Law,
because, at all events, and however this may be, the mere failure to record the instrument in the
registry of property can not be a bar to its admission as evidence in this case, as the action is not
brought against a third person in the sense of this word as used in the law referred to.
Consequently we reverse and annul the order of the court below, overruling the motion made on
behalf of Doa Maria Pascuala Dolor, without special condemnation as to the costs of either
instance. So ordered.
Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.
Torres, J., did not sit in this case.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4777

November 11, 1908

SUILIONG & CO., as liquidators of The Yek Tong Lim Fire, Marine, and Insurance Co.,
Ltd., plaintiffs-appellees,
vs.
SILVINA CHIO-TAYSAN, defendant-FRANCISCA JOSE, intervener-appellant.
Leodegario Azarraga, for appellant.
Carlos Ledesma, and Ramon Fernandez, for appellees.

CARSON, J.:
Avelina Caballero, deceased, owned during her lifetime a certain tract of land, which was duly
inscribed in her name in the land registry of the city of Manila. On March 27, 1903, she borrowed
from Francisca Jose, the intervener and appellant in this action, 1,000 pesos, Mexican currency, and

turned over her title deeds to this tract of land to the lender as security for the loan, but no entry
touching the transaction was noted in the land registry.
Avelina Caballero died on the 5th day of June, 1903, and thereafter Silvina Chio-Taysan, the
defendant in this action, instituted in the Court of First Instance of Manila an action, known, under
the system of civil procedure in existence prior to the adoption of the present code, as an "action for
the declaration of heirship" and on the 5th day of August, 1903, the following order declaring her to
be the only and exclusive heir of Avelina Caballero, deceased, was issued in that proceeding:
[United States of America, Philippine Islands. In the Court of First Instance of Manila. Part
III.]
It having been proven by both documental and oral evidence introduced in the above-cited
case, that the petitioner Silvina Chio-Taysan y Caballero is the daughter of Jose Chio-Taysan
and Avelina Caballero, who died on the 29th of April, 1895, and on the 5th of June, 1903,
respectively, without leaving any other descendant or having executed any will; and there
being no objection whatever to the claim of the petitioner, it is hereby declared that the said
Silvina Chio-Taysan y Caballero is the legal heir abintestato of her deceased parents, the
said Jose Chio-Taysan and Avelina Caballero, in conformity with the provisions of the Civil
Code now in force. Let a certificate of this decision be issued to the interested party and
those who may hereafter apply for the same. So ordered.
A.S. CROSSFIELD, Judge.
On March 9, 1904, the registrar of deeds of the city of Manila by virtue of this order entered the
following inscription in the land registry whereby the said Silvina Chio-Taysan is made to appear as
the owner of the land in question:
Ninth inscription. Urban property. A parcel of land and a house of a strong materials,
tile roofed, built thereon, marked number eight, situated in Calle Lavezares of the district of
Binondo, this city, the remaining description of which appears in the first inscription of this
number. It has no encumbrances. Doa Avelina Caballero y Bugnot, of age, widow, of
this vicinity, is the owner of this property under a title of repurchase, according to the
proceeding inscription. Said lady and her husband, Don Jose Chio-Taysan, died on June 5,
1903, and April 29, 1895, respectively, and neither of them having executed a will, the
corresponding intestate proceedings were instituted, in which an order was issued on August
5, 1903, by A.S. Crossfield, judge of the third sala of the Court of First Instance of this city,
declaring their daughter, Silvina Chio-Taysan y Caballero, their intestate heir. By virtue
thereof, I inscribe, in favor of the said Silvina Chio-Taysan y Caballero, the right she was
acquired over the property of this number, under title by intestate inheritance. All the above
appears from the previous records and from the copy of the above judicial order, issued by
Don Salvador Chofre, assistant clerk of the Court of First Instance of this city, on August 5,
1903, which document was presented to this registry at 8:50 a. m. on the 25th day of
February last, as per record No. 452, page 266, of the 7th volume of the Diario. And all the
above being in accordance with the document above referred to, I sign these presents in
Manila, on March 9, 1904 Fees: $7.50, No. 7, Tariff of Fees. Alberto Barretto.

On the 26th day of May, 1904, the said Silvina Chio-Taysan borrowed the sum of P2,500 from the
Fire and Marine Insurance and Loan Co., of which the plaintiff is the lawfully appointed liquidator,
and mortgaged the land in question as security for the repayment of the loan.
Thereafter the husband of Silvina Chio-Taysan instituted special proceedings under the provisions of
the present Code of Civil Procedure, for the administration of the estate of Avelina Caballero,
deceased, and on the 16th day of October, 1905, he was, in accordance with his petition, appointed
administrator; and thereupon, submitted as such administrator, an inventory of the property of the
estate, in which was included the land in question; and on the 28th of November, 1905, Francisca
Jose, the intervener in this action, submitted her claim to the commissioner appointed in these
proceedings, for the sum of 1,000 pesos, Mexican currency, loaned the deceased, as above set out,
on the 28th day of March, 1904, which claim was duly approved on the 31st of August, 1906.
On the 10th day of October, 1906, the plaintiff in this action filed its complaint against the defendant,
Silvina Chio-Taysan, praying for judgment for the amount loaned her as above set out, and the
foreclosure of its mortgage upon the land. To this complaint the defendant, Silvina Chio-Taysan, filed
her answer, admitting the facts alleged in the complaint and declining to interpose any objection to
the prayer of the complaint; but on the 30th of October, 1907, Francisca Jose was permitted to
intervene and file her separate "complaint in intervention" wherein she set out the facts touching the
loan made by her to Avelina Caballero, deceased, and prayed that the court declare the mortgage
executed by Silvina Chio-Taysan rescinded and of no effect; and further that it annul the inscription
in the land registry of the title of Silvina Chio-Taysan to the land in question; and declare this land
subject to her claim against the estate of Avelina Caballero, deceased.
lawphil.net

The trial court entered judgment in favor of the plaintiff and against both the defendant and the
intervener in conformity with the prayer of the complaint, and the intervener brings that judgment
before this court for review upon her bill of exceptions duly signed and certified.
We do not think that the judgment of the trial court can be sustained in so far as it wholly denies
relief to the intervener, Francisca Jose. The trial judge denied the relief prayed for by the intervener,
on the ground that her intervention in this action was for the purpose of the written title deeds on the
land, and that, since she admitted that she had admitted her claim against the estate of Avelina
Caballero, deceased, to the committee appointed in the administration proceedings, she must be
taken to have abandoned, whatever lien she may have held as security therefor, in accordance with
the provisions of section 708 of the Code of Civil Procedure.
The prayer of her complaint in intervention, however, is merely for the rescission and annulment of
the mortgage contract between the loan company and the defendant and of the inscription in the
land registry of the title of the defendant, and a declaration that as a creditor of the estate she has a
superior right to that of the plaintiff company in the proceeds of any sale of the land in question. She
does not seek to enforce her claim and recover her debt in this proceeding, but merely to prevent the
plaintiff from securing a judgment in this action which would take out of the estate property which
she believes to be subject to her claim set up in the administration proceedings. If her contentions
are well founded, and if the estate of the deceased is subject to the payment of the debts of the
deceased in such form that the heirs of the deceased could not alienate this land free of the claims
of the creditors of the deceased against the land, for the payment of their claims against the

deceased, the intervener is clearly entitled to at least so much of the relief she seeks in this action as
will have the effect of preventing the sale of this land under the plaintiff's foreclosure proceedings,
free of the claims of creditors of the deceased, because, if the plaintiffs in this action were permitted
to foreclosure their mortgage and to recover their debt from the sale of the land in question, it might
well be that there would not be sufficient property in the estate to pay the amount of the claim of the
intervener against the estate.
Had the transactions above set out in taken place under the system of law in force in these Islands
immediately prior to the 1st day of October, 1901, when the new Code of Civil Procedure went into
effect, there would be no difficulty in determining the respective rights of the various parties to this
action. Article 657 of the Civil Code provides that Los derechos a la succession de una persona se
transmiten desde el momento de su muerte. (The rights to the succession of another are transmitted
from the moment of his death); and article 661 provides thatLos herederos suceden al difunto por el
hecho solo de su muerte en todos sus derechos y obligaciones. (Heirs succeed the deceased by the
mere fact of his death, in all rights and obligations). Under these, and co-related provisions of the
Civil Code, a sole and exclusive heir (as defined in article 660 of the Civil Code) became the owner
of the property and was charged with the obligations of the deceased at the moment of his death,
upon precisely the same terms and conditions as the property was held and as the obligations had
been incurred by the deceased prior to his death, save only that when he accepted the inheritance,
"with benefit of an inventory" he was not held liable for the debts and obligations of the deceased
beyond the value of the property which came into his hands.
The property of the deceased, both real and personal, became the property of the heir by the mere
fact of death of his prodecessor in interest, and he could deal with it in precisely the same way in
which the deceased could have dealt with it, subject only to the limitations which by law or by
contract were imposed upon the deceased himself. He could alienate or mortgage it with the same
freedom as could the deceased in his lifetime; the unsecured debts and other personal obligations of
the deceased becoming the unsecured debts and personal obligations of the heir for which he was
held personally responsible in precisely the same manner as the deceased, save only, as has been
said before, where he availed himself of the privilege of taking the estate "with the benefit of an
inventory," in which case the extent of his liability was limited to the value of the estate which came
into his hands, though in other respects its character as a personal liability remained unchanged.
Thus death created no new lien in favor of creditors upon the property of the deceased, which was
not in existence at the time of his death; personal debts and obligations of the deceased becoming
the personal debts and obligations of the heir, to whom the creditor was compelled to look for
payment, with no new right in or to the property of the decease, in the hands of the heir, which he did
not have in or to such property in the hands of the deceased. (Title 3, Book of the Civil Code.)
Spanish procedural law provided an action known as an action for the declaration of heirship
(declaracion de herederos) whereby one claiming the status of heir could have his right thereto
judicially declared, and this judicial declaration of heirship unless and until set aside or modified in a
proper judicial proceeding, was evidence of the fact of heirship which the officials charged with the
keeping of the public records, including the land registry, were bound to accept as a sufficient basis
for the formal entry, in the name of the heir, of ownership of the property of the deceased.

It is evident therefore that, unless the provisions of Spanish procedural and substantive law, in force
when the new Code of Civil Procedure went into effect, have been repealed or modified thereby, the
defendant in this action, Silvina Chio-Taysan, who was judicially declared to be the sole and
universal heir of Avelina Caballero, deceased, became, by the mere fact of the death of Caballero,
the absolute owner of the tract of land in question, subject only to such liens thereon as may have
existed prior thereto, the personal obligations of the deceased also passing to her at the same time;
that, upon proof of such judicial declaration of heirship, the register of deeds of the city of Manila
properly entered Chio-Taysan in the land registry as the owner of this land by right of inheritance;
and that the Loan Company, of which the plaintiffs are the duly appointed liquidators, was entitled to
rely on the properly noted entries in the land registry and that the company's mortgage deed from
Chio-Taysan, in whose name the land is registered, could not be affected by the unrecorded claim of
the indebtedness of the intervener, who must look to the heirs for the recovery of her debt.
But both the substantive and procedural law touching rights of succession and their enforcement,
which were in force in these Islands when the new Code of Civil Procedure went into effect, have, to
a greater or less degree, been repealed or modified by its enactment; and we are of opinion that,
under the provisions of the new code, the heir is not a such personally responsible for the debts of
the deceased, in whole or in part; and on the other hand, the property of the deceased comes to him
charged with the debts of the deceased, so that he can not alienate or charge it free of such
debts, until and unless they are extinguished either by payment, prescription, or satisfaction in one
or other of the modes recognized by law.
It must be admitted that we can not point out the specific section of the new Code of Civil Procedure
which in express terms repeals the old law and formally enacts the new doctrine of succession just
laid down; but we think that an examination of the various provisions of that code touching the
administration of the estates of deceased person leaves no room for doubt that they do so by
necessary implication.
The legislators who enacted this code were more especially acquainted with the American and
English systems of legislation, and in most of its provisions closely adhered to American precedent.
It substantially repeals in toto the proceedings prescribed under the old law for the administration of
estates of deceased persons, and substitutes therefor a system similar to that generally adopted in
the United States; most of its provisions having been borrowed word for word from the codes of one
or other of the various States. The substantive law in force in these Islands being in many respects,
and especially in regard to rights of inheritance, wholly different from that in force in the various
States from which the new system of administration of the estates of deceased persons was
adopted, many irreconcilable conflicts are to be found between the provisions of the new and the old
law, so that it becomes necessary either to declare a great part of the provisions of the new Code of
Procedure void and no effect, as wholly inapplicable, or to hold that in such cases the provisions of
substantive as well as procedural law in conflict or inconsistent with the provisions of the new Code
of Procedure are repealed, or amended by the substitution of such other provisions as are clearly
necessary as a basis upon which the new provisions of procedural law are predicated.
An examination more especially of sections 597, 644, 695, 727, 729, 731, 733, and 749 of the Code
of Civil Procedure, read together with the remaining provisions for the administration of the estates

of deceased persons, clearly indicates that the provisions of articles 660 and 661 of the Civil Code
have been abrogated.
These provisions of the new code clearly demonstrate that the terms heredero and legatario, as
defined in the Civil Code (art. 660), are not synonymous with the words "heir" and "legatee," as used
in the new code; the word "heir" in the new code being technically and applicable only to a relative
taking property of an intestate by virtue of the laws of descent, devisee and legatee being reserved
for all persons whether relatives or not, taking respectively real or personal property by virtue of a
will; while heredero in the Civil Code was applicable not only to one who would be called an "heir,"
under the provisions of the new code, but also to one, whether relative or not, who took what might
be called "a residuary estate under a will" (el que sucede a titulo universal).
It appears also from an examination of these provisions that the legislature has provided no
machinery whereby an absolute right on the part of the heir to succeed by the mere fact of death
to all the rights and property of the deceased may be enforced, without previous payment or
provision of the payment of the debts; and on the other hand, it has provided machinery for the
enforcement of the debts and other obligations of the deceased, not as debts or obligations of the
heir, but as debt or obligations of the deceased, to the payment of which the property of the
deceased may be subjected wherever it be found. Thus section 597 expressly provides that, in those
cases where settlement of an intestate estate may be made without legal proceedings, either by a
family council, as known under the Spanish law, or by an agreement in writing executed by all the
heirs, the real estate of the deceased remains charged with liability to creditors of the deceased for
two years after the settlement, "notwithstanding any transfers thereof that may have been made;"
and we think the inference is clear that the legislator in this section recognizes and affirms the
doctrine that, prior to the date of such settlement, the real estate at least was charged in like manner
with the debts of the deceased. So it will be found that, where the legal proceedings are had looking
to the settlement of testate or intestate estates, provision is made for the recovery of claims against
the deceased, not by proceedings directed against the heir, but by proceedings looking directly to
the subjection of the property of the deceased to the payment of such claims; the property both real
and personal being, in express terms, made chargeable with the payment of these debts, the
executor or administrator having the right to the possession of the real as well as the personal
property, to the exclusion of the heirs, so long as may be necessary for that purpose (secs. 727 and
729).
For practical purposes it may well be said that in the eye of the law, where there is no remedy to
enforce an alleged right when it is invaded, the existence of the right may safely be denied; and
where the law furnishes a remedy whereby one may enforce a claim, that claim is a right recognized
and established by the law. The new Code of Procedure furnishing no remedy whereby the
provisions of article 661 of the of the Civil Code may be enforced, in so far as they impose upon
the heredero (heir) the duty of assuming as a personal obligation all the debts of the deceased, at
least to the extent of the value of the property received from the estate; or in so far as they give to
the heredero the reciprocal right to receive the property of the deceased, without such property
being specifically subjected to the payment of the debts to the deceased by the very fact of his
deceased, these provisions of article 661 may properly be held to have been abrogated; and the
new code having provided a remedy whereby the property of the deceased may always be
subjected to the payment of his debts in whatever hands it may be found, the right of a creditor to a

lien upon the property of the deceased, for the payment of the debts of the deceased, created by the
mere fact of his death, may be said to be recognized and created by the provisions of the new code.
(Pavia vs. De la Rosa, 8 Phil. Rep., 70).
It is evident, therefore, that a judgement in an action for the declaration of heirship in favor of one or
more heirs could not entitle such persons to be recognized as the owner or owners of the property of
the deceased on the same terms as such property was held by the deceased, for it passes to the
heir, under the new code, burdened with all the debts of the deceased, his death having created a
lien thereon for the benefit of creditor; and indeed an examination of the proceedings prescribed in
the new Code of Civil Procedure for the administration and distribution of the estates of deceased
persons leaves no room for doubt that those proceedings are exclusive of all other judicial
proceedings looking to that end, and supersede the judicial proceeding for the declaration of
heirship, as recognized in the old procedure, at least so far as that proceeding served as a remedy
whereby the right of specific persons to succeed to the rights and obligations of the deceased as his
heirs might be judicially determined and enforced.
Examining the facts in the case at bar, in the light of the doctrine as to the law of succession as thus
modified and amended by the new Code of Civil Procedure, which went into effect prior to the death
of Avelina Caballero, it is evident that her death created a lien upon her property in favor of the
intervener Francisca Jose, for the payment of the debt contracted by her during her lifetime, and that
this lien ought to have and has priority to any lien created upon this property by the heir of the
deceased; that the judicial declaration of heirship in favor of Silvina Chio-Taysan, could not and did
not furnish a basis for an entry in the land registry of the name of Silvina Chio-Taysan as the
absolute owner of the property of Avelina Caballero; that such entry, improperly made, could not and
did not prejudice the lien of the intervener, Francisca Jose, for the debt due her by the deceased
(Mortgage Law, art. 33); and that the mortgage of the property of the deceased by her heir, Silvina
Chio-Taysan, was subject to the prior lien of the intervener, Francisca Jose, for the payment of her
debt.
It is not necessary for us to consider the action of the court below in ordering the foreclosure of the
mortgage, in so far as it affects the defendant Silvina Chio-Taysan who did not appeal; but we think
that the intervener, who is seeking to subject the property of the deceased to the payment of her
debt in the administration proceedings now pending, is clearly entitled to so much of the relief prayed
for as will have the effect of preventing the application of the proceeds of the sale of this land under
foreclosure proceedings to the payment of debts contracted by the heir until and unless it shall
appear that the residue of the estate of the deceased is sufficient to satisfy her claim. Such provision
for the protection of her rights having been made, the other relief prayed for by her may properly be
denied, since a provision subjecting the land in question to the payment of her claim against the
estate of Avelina Caballero, deceased, fully and sufficiently protects her rights in the premises, and
her rights having been secured, she has no proper interest in the rescission of the mortgage contract
between plaintiff and defendant, or the cancellation of the inscription of the defendant's title as heir in
the land registry.
The judgment of the trial court should, therefore, be modified in accordance with the foregoing
principles, and the record will be returned to the trial court where judgment will be entered modifying
the judgment, by providing that the proceeds of the sale of the land under the foreclosure

proceedings will be deposited with the clerk of the court, where it will be retained until the amount of
the debt due the intervener and unpaid in the course of the administration of the estate of Avelina
Caballero shall have been ascertained, whereupon the said funds shall be applied: first, to
extinguish the unpaid residue, if any, of the claim of the intervener; second, to pay the debt due the
plaintiff in this action; and finally, the residue, if any, to be paid to the estate of the deceased; the
intervener to have her costs in this action in both instances. So ordered.
Arellano, C.J., Torres, Mapa, and Willard, JJ., concur.
Tracey, J., concurs in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4963

January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR
NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of five (5) parcels of land situated in
the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario
and her four children named Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda,
who are all of minor age, before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands
involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However,
plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario
took possession illegally of said lands thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and
her husband, the late Faustino Nebreda, executed a public document whereby they agreed to
separate as husband and wife and, in consideration of their separation, Maria Uson was given a
parcel of land by way of alimony and in return she renounced her right to inherit any other property
that may be left by her husband upon his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered decision
ordering the defendants to restore to the plaintiff the ownership and possession of the lands in
dispute without special pronouncement as to costs. Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former
owner of the five parcels of lands litigated in the present case. There is likewise no dispute that
Maria del Rosario, one of the defendants-appellants, was merely a common-law wife of the late
Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise
appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With
this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he
was seized of at the time passed from the moment of his death to his only heir, his widow Maria
Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the
moment of the death of the ancestor as completely as if the ancestor had executed and delivered to
them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that
moment, therefore, the rights of inheritance of Maria Uson over the lands in question became
vested.
The claim of the defendants that Maria Uson had relinquished her right over the lands in question
because she expressly renounced to inherit any future property that her husband may acquire and
leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot
be entertained for the simple reason that future inheritance cannot be the subject of a contract nor
can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio
and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor defendants are illegitimate children of
the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights,
however, under the new Civil Code which became in force in June, 1950, they are given the status
and rights of natural children and are entitled to the successional rights which the law accords to the
latter (article 2264 and article 287, new Civil Code), and because these successional rights were
declared for the first time in the new code, they shall be given retroactive effect even though the
event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil
Code).
There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are
declared for the first time shall have retroactive effect even though the event which gave rise to them
may have occurred under the former legislation, but this is so only when the new rights do not
prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right
should be declared for the first time in this Code, it shall be effective at once, even though the act or
event which gives rise thereto may have been done or may have occurred under the prior legislation,
provided said new right does not prejudice or impair any vested or acquired right, of the same
origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over
the lands in question became vested in 1945 upon the death of her late husband and this is so
because of the imperative provision of the law which commands that the rights to succession are
transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the
new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to
the impairment of the vested right of Maria Uson over the lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of
pity or compassion, agreed to assign the lands in question to the minor children for the reason that
they were acquired while the deceased was living with their mother and Maria Uson wanted to
assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that
this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a
donation of real property, inasmuch as it involves no material consideration, and in order that it may
be valid it shall be made in a public document and must be accepted either in the same document or
in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been
followed, it results that the alleged assignment or donation has no valid effect.
WHEREFORE, the decision appealed from is affirmed, without costs.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-48372

July 24, 1942

GENEROSA TEVES DE JAKOSALEM, plaintiff-appellant,

vs.
NICOLASA RAFOLS, ET ALS., defendants-appellees.
Tomas Alonso and Silvano Jakosalem for appellant.
Nicolasa Rafols for appellees.
MORAN, J.:
The land in question described in the appealed in the decision originally belonged to Juan Melgar.
The latter died at the judicial administration of his estate was commenced in 1915 and came to a
close on December 2, 1924, only. During the pendency of the said administration, that is, on July 5,
1917, Susana Melgar, daughter of the deceased Juan Melgar, sold the land with the right of
repurchase to Pedro Cui, subject to the stipulation that during the period for the repurchase she
would continue in possession of the land as lessee of the purchaser. On December 12, 1920, the
partition of the estate left by the deceased Juan Melgar was made, and the land in question was
adjudicated to Susana Melgar. In 1921, she conveyed, in payment of professional fees, one-half of
the land in favor of the defendant-appellee Nicolasa Rafols, who, entered upon the portion thus
conveyed and has been in possession thereof up to the present. On July 23, 1921, Pedro Cui
brought an action to recover said half of the land from Nicolas Rafols and the other half from the
other defendants, and while that case was pending, or about August 4, 1925, Pedro Cui donated the
whole land in question to Generosa Teves, the herein plaintiff-appellant. After trial, the lower court
rendered a decision absolving Nicolas Rafols as to the one-half of the land conveyed to him by
Susana Melgar, and declaring the plaintiff owner of the other half but express acknowlegment of the

other defendants. The plaintiff appealed from that part of the judgment which is favorable to Nicolas
Rafols.
The lower court absolved Nicolas Rafols upon the theory that Susana Melgar could not have
anything to Pedro Cui because the a land was then in custodia legis, that is, under judicial
administration. This is error. That the land could not ordinarily be levied upon while in custodia legis,
does not mean that one of the heirs may not sell the right, interest or participation which he has or
might have in the lands under administration. The ordinary execution of property in custodia legis is
prohibited in order to avoid interference with the possession by the court. But the sale made by an
heir of his share in an inheritance, subject to the result of the pending administration, in no wise
stands in the way of such administration.
Article 440 of the Civil Code provides that "the possession of hereditary property is deemed to be
transmitted to the heir without interruption from the instant of the death of the decedent, in case the
inheritance be accepted." And Manresa with reason states upon the death of a person, each of his
heirs "becomes the undivided owner of the whole estate left with respect to the part or portion which
might be adjudicated to him, a community of ownership being thus formed among the coowners of
the estate while it remains undivided." (3 Manresa 357; Alcala vs. Alcala, 35 Phil. 679.) And
according to article 399 of the Civil Code, every part owner may assign or mortgage his part in the
common property, and the effect of such assignment or mortgage shall be limited to the portion
which may be alloted him in the partition upon the dissolution of the community. Hence, in the case
ofRamirez vs, Bautista, 14 Phil. 528, where some of the heirs, without the concurrence of the others,
sold a property left by their deceased father, this Court, speaking thru its then Chief Justice
Cayetano Arellano, said that the sale was valid, but that effect thereof was limited to the share which
may be allotted to the vendors upon the partition of the estate.
It results therefore that the sale made by Susana Melgar in favor of Pedro Cui was valid, but it would
be effective only as to the portion to be adjudicated to the vendor upon the partition of the property
left by her deceased father Juan Melgar. And as on December 12, 1920, upon the partition of said
property, the land in question was adjudicated to Susana Melgar, the sale of the whole land which
the latter made in favor of Pedro Cui was entirely confirmed.
Upon the confirmation of the sale of December 12, 1920 in favor of Pedro Cui, the conveyance by
Susana Melgar in favor of Nicolasa Rafols in 1921 could no longer be done. And even in the case of
a double sale, where neither of the purchasers has registered the sale, the first in possession
namely, Pedro Cui, should be referred. When the sale made in the latter's favor was confirmed on
December 12, 1920, Susana Melgar was in possession of the land as lessee, and this possession
should be considered as that of Pedro Cui. The possession of Nicolas Rafols commenced in 1921
only, wherefore, it is subsequent to that of Pedro Cui.
Nicolasa Rafols may not allege prescription of action, for Pedro Cui filed the first complaint in 1921,
or the year following the confirmation of the sale in his favor. And as Nicolas Rafols deprived Pedro
Cui of the possession and the enjoyment of one-half of the land since 1921 to the present, it is only
just that he should pay an indemnity therefor. Six per cent of P1,500, which is the price of one-half of
the land, may be considered as the reasonable amount of this indemnity.

Wherefore, the appealed decision is reversed, and Nicolas Rafols is sentenced to deliver to the
plaintiff Generosa Teves de Jakosalem, one-half of the land conveyed to him by Susana Melgar, and
to pay by way of damages the sum of P90 a year from the filing of the complaint that is, from July 23,
1921, until the delivery of the land, with the cost of both instances against him. So ordered.
Yulo, C.J., Ozaeta, Paras and Bocobo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23126

March 17, 1925

In the matter of intestate estate of the deceased Juana Servando.

JOSE P. TINSAY, administrator-appellee,
vs.
JOVITA YUSAY and PETRA YUSAY, heirs-appellants.
Block, Johnston and Greenbaum for appellants.
Clemente M. Zulueta for appellee.
OSTRAND, J.:
It appears from the record that one Juan Yusay died some time before the year 1909, leaving a
widow Juana Servando and five children, Candido, Numeriana, Jovito, Jovita and Petra. As far as
the record shows his estate consisted of his interest in a track of land situated in the town of Iloilo,
divided into two lots by Calle Aldeguer and which was community property of his marriage to Juana
Servando. In 1909 Jovito Yusay purchased the interests of Candido and Numeriana in the land, thus
acquiring a three- fifths interest in the same.
Jovito Yusay appears to have died some time between the years 1909 and 1911, leaving a widow,
Perpetua Sian, and five minor children, Juana, Elena, Aurea, Elita and Antonia Yusay. In 1911
Perpetua Sian for herself and in representation of her children entered into an agreement in writing
(Exhibit 1) with Jovita and Petra Yusay which purported to provide for the partition of the land
mentioned and whereby Perpetua Sian and her children were to occupy the portion to the northeast
of Calle Aldeguer and Jovita and Petra were to have the portion or lot to the southwest of this street.
The document is very imperfectly drawn and is in some respects somewhat ambiguous in its terms
but it is, nevertheless, quite clear that in its final clause Jovita and Petra Yusay expressly relinquish
in favor of the children of Jovito Yusay any and all rights which they, Jovita and Petra, might have in
the land assigned to Perpetua Sian and her children in the partition.
Subsequently a cadastral survey was made of the section of Iloilo in which the land in question is
situated. In this survey the portion alloted to Perpetua Sian and her children was designated as lot
No. 241, with a narrow strip set aside for the widening of Calle Aldeguer and described as lot No.
713. The portion which under the partition of 1911 fell to the share of Jovita and Petra Yusay was
given the lot number 283; a narrow strip of the same portion along Calle Aldeguer is numbered 744.

At the trial of the cadastral case lots Nos. 241 and 713 were claimed by Perpetua Sian on behalf of
her children and the lots were adjudicated to the latter without opposition. Lots Nos. 283 and 744
were claimed by Jovita and Petra And adjudicated to them, also without opposition.
Shortly thereafter, on August 10, 1915, Juana Servando filed a petition in the cadastral case asking
for the reopening of the case as to lots Nos. 241 and 713 on the ground that she was the owner of a
one-half interest in said lots, but that at the time of the trial of the case Perpetua Sian had falsely
lead her to believe that a claim had been presented in her behalf for her interest in the land. The
petition for reopening was granted, the former judgment set aside and the two lots Nos. 241 and 713
were thereupon decreed in favor of Juana Servando and the children of Jovito Yusay in the
proportions of an undivided half interest in favor of Juana Servando and the remaining one-half
interest in favor of the children of Perpetua Sian in equal shares, the court holding in substance that
Juana Servando not having been a party to the partition made in 1911, her interests were not
affected thereby. The case was appealed to this court and the decision of the lower court affirmed. 1
It may be noted that Juana laid no claim to lots Nos. 283 and 744 decreed in favor of Jovita and
Petra Yusay who therefore remained the registered owners of said lots.
On April 12, 1919, after the death of Juana Servando, the appellee Jose P. Tinsay was appointed
administrator of her estate. In July and October, 1922, Jovita and Petra Yusay sold lot No. 283 to
one Vicente Tad-Y for the sum of P20,000. On March 22, 1924, the administrator of the estate of
Juana Servando filed an amended inventory in which the P20,000 received by Jovita and Petra from
the sale of lot No. 283 was included as bien colacionable. On the same day a scheme for the
distribution of the estate was submitted to the court in which the aforesaid P20,000 were brought into
collation with the result that the total value of the estate being only P28,900, according to inventory,
no further share in the estate was assigned to Jovita and Petra Yusay.
The scheme of partition was opposed by Jovita and Petra and the matter set down for hearing, at
which hearing the opponents introduced in evidence Exhibit A, a certificate of the register of deeds of
the Province of Iloilo showing that the deceased Juana Servando was the registered owner of a half
interest in lots Nos. 241 and 713 and that Jovita and Petra Yusay were the exclusive registered
owners of lots Nos. 283 and 744.
The administrator presented in evidence Exhibits 1 to 6, inclusive. Exhibit 1 is the document of
partition between Perpetua Sian and Jovita and Petra Yusay executed in 1911; Exhibits 2 and 3 are
deeds executed by Numeriana and Candido Yusay transferring their interests in all of the lots abovementioned to Jovito Yusay; Exhibits 4 and 5 are the deeds for lot No. 283 executed by Jovita and
Petra Yusay in favor of Vicente Tad-Y; and Exhibit 6 evidences a lease from Jovita Yusay of one-half
of lot No. 283 in favor of Yap Angching and dated July 29, 1911. The admission of these exhibits was
objected to by opponents and the objections were sustained by the court, to which ruling counsel for
the administrator excepted. The result of the exclusion of the exhibits is that there in reality is no
evidence for the appellee properly before the court; the introductory statement made by counsel in
offering the exhibits and in which he briefly stated their support, is no evidence. In making the
foregoing statement of facts we have, however, drawn freely upon all of the exhibits in order to bring
the issues involved in the case into clear relief.
The court approved the scheme of partition and declared the proceeds of the sale of lots Nos. 283
and 744 "fictitiously collationable" and held that this being in excess of their share of the inheritance,
Jovita and Petra Yusay could claim no further participation in the other property described in the
inventory and in the scheme of partition. In the same order the court declared Exhibits 4 and 5
admissible notwithstanding the fact that they had been ruled out at the hearing, but maintained its
original ruling in regard to Exhibits 1, 2, 3 and 6. From this order Jovita and Petra Yusay appeal.

The appellants make seven assignments of error and in their brief the discussion has taken a rather
wide range. The matter in controversy may, however, be reduced to very simple terms. It is, of
course, clear that the court below erred in taking into consideration in its decision evidence which it
had ruled out at the trial of the case; if, after the close of the trial, the court upon more mature
reflection arrived at the conclusion that some of its rulings were erroneous, it should have reopened
the case before reversing them. We are also of the opinion that it was error to exclude Exhibits 1, 2
and 3. Exhibit 6 may be of some value to show the interpretation given Exhibit 1 by the parties and
might properly have been admitted in evidence.
We also agree with counsel for the appellants that the case involves no question of this kind
of colacion provided for in articles 1035-1050 of the Civil Code, nor are we here dealing with
advancements to lineal heirs under section 760 of the Code of Civil Procedure in force at the time of
the execution of Exhibit 1. As far as we can see, the appellee must rest his case upon entirely
different principles.
The decision appealed from being based on evidence not properly before the trial court, must be
reversed, but inasmuch as the errors committed by that court are of such a character as to have
worked what amounts to a mistrial, it will be necessary to remand the case for a new trial.
For the guidance of the court as well as of counsel at this new trial, we shall briefly state our view of
the principles upon which, in our opinion, the controversy must be determined in the hope of saving
further appeals.
Juana Servando not being a party to the partition agreement Exhibit 1, the agreement standing
alone was, of course, ineffective as against her. The attempt to partition her land among her heirs,
constituting a partition of a future inheritance was invalid under the second paragraph of article 1271
of the Civil Code and for the same reason the renunciation of all interest in the land which now
constitutes lots Nos. 241 and 713 made by the appellants in favor of the children of Jovito Yusay
would likewise be of no binding force as to the undivided portion which belonged to Juana Servando.
But if the parties entered into the partition agreement in good faith and treated all of the land as a
present inheritance, and if the appellants on the strength of the agreement obtained their Torrens
title to the land alloted to them therein, and if Perpetua Sian in reliance on the appellants'
renunciation of all interest claimed by her on behalf of her children in the cadastral case refrained
from presenting any opposition to the appellants' claim to the entire fee in the land assigned to them
in the partition agreement and if the appellants after the death of Juana Servando continued to enjoy
the benefits of the agreement refusing to compensate the heirs of Jovito Yusay for the latter's loss of
their interest in lots Nos. 283 and 744 through the registration of the lots in the name of the
appellants and the subsequent alienation of the same to innocent third parties, said appellants are
now estopped from repudiating the partition agreement of 1911 and from claiming any further
interest in lots Nos. 241 and 713. There is, however, no reason why they should not be allowed to
share in the distribution of the other property left by Juana Servando.
We may say further that if a case of estoppel should not be established, the appellants might still,
under article 1303 in relation with article 1073 of the Civil Code, be compelled to restore to the estate
of Juana Servando one- half of the amount received by them from the sale of lots Nos. 283 and 744,
unless it is shown that Juana's interest in the lot was transferred to them either by sale or by valid
donation. The registration of land does not necessarily extinguish obligations of that character.
For the reasons stated, the order appealed from is reversed and the case remanded to the court
below for a new trial upon the issues herein suggested. No costs in this instance. So ordered.
Johnson, Malcolm, Villamor, Johns, and Romualdez, JJ., concur.

Footnotes
Government of the Philippine Islands vs. Sian and Servando R.G. No. 12025, promulgated
August 8, 1918, not reported.
1

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-43082

June 18, 1937

PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiff-appellant,

vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-appellant.
Office of the Solicitor-General Hilado for defendant-appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate of Thomas
Hanley, deceased, brought this action in the Court of First Instance of Zamboanga against the
defendant, Juan Posadas, Jr., then the Collector of Internal Revenue, for the refund of the amount of
P2,052.74, paid by the plaintiff as inheritance tax on the estate of the deceased, and for the
collection of interst thereon at the rate of 6 per cent per annum, computed from September 15, 1932,
the date when the aforesaid tax was [paid under protest. The defendant set up a counterclaim for
P1,191.27 alleged to be interest due on the tax in question and which was not included in the
original assessment. From the decision of the Court of First Instance of Zamboanga dismissing both
the plaintiff's complaint and the defendant's counterclaim, both parties appealed to this court.
It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga, leaving a
will (Exhibit 5) and considerable amount of real and personal properties. On june 14, 1922,
proceedings for the probate of his will and the settlement and distribution of his estate were begun in
the Court of First Instance of Zamboanga. The will was admitted to probate. Said will provides,
among other things, as follows:
4. I direct that any money left by me be given to my nephew Matthew Hanley.
5. I direct that all real estate owned by me at the time of my death be not sold or otherwise
disposed of for a period of ten (10) years after my death, and that the same be handled and
managed by the executors, and proceeds thereof to be given to my nephew, Matthew
Hanley, at Castlemore, Ballaghaderine, County of Rosecommon, Ireland, and that he be

directed that the same be used only for the education of my brother's children and their
descendants.
6. I direct that ten (10) years after my death my property be given to the above mentioned
Matthew Hanley to be disposed of in the way he thinks most advantageous.
xxx

xxx

xxx

8. I state at this time I have one brother living, named Malachi Hanley, and that my nephew,
Matthew Hanley, is a son of my said brother, Malachi Hanley.
The Court of First Instance of Zamboanga considered it proper for the best interests of ther estate to
appoint a trustee to administer the real properties which, under the will, were to pass to Matthew
Hanley ten years after the two executors named in the will, was, on March 8, 1924, appointed
trustee. Moore took his oath of office and gave bond on March 10, 1924. He acted as trustee until
February 29, 1932, when he resigned and the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant Collector of Internal Revenue,
alleging that the estate left by the deceased at the time of his death consisted of realty valued at
P27,920 and personalty valued at P1,465, and allowing a deduction of P480.81, assessed against
the estate an inheritance tax in the amount of P1,434.24 which, together with the penalties for
deliquency in payment consisting of a 1 per cent monthly interest from July 1, 1931 to the date of
payment and a surcharge of 25 per cent on the tax, amounted to P2,052.74. On March 15, 1932, the
defendant filed a motion in the testamentary proceedings pending before the Court of First Instance
of Zamboanga (Special proceedings No. 302) praying that the trustee, plaintiff herein, be ordered to
pay to the Government the said sum of P2,052.74. The motion was granted. On September 15,
1932, the plaintiff paid said amount under protest, notifying the defendant at the same time that
unless the amount was promptly refunded suit would be brought for its recovery. The defendant
overruled the plaintiff's protest and refused to refund the said amount hausted, plaintiff went to court
with the result herein above indicated.
In his appeal, plaintiff contends that the lower court erred:
I. In holding that the real property of Thomas Hanley, deceased, passed to his instituted heir,
Matthew Hanley, from the moment of the death of the former, and that from the time, the
latter became the owner thereof.
II. In holding, in effect, that there was deliquency in the payment of inheritance tax due on the
estate of said deceased.
III. In holding that the inheritance tax in question be based upon the value of the estate upon
the death of the testator, and not, as it should have been held, upon the value thereof at the
expiration of the period of ten years after which, according to the testator's will, the property
could be and was to be delivered to the instituted heir.

IV. In not allowing as lawful deductions, in the determination of the net amount of the estate
subject to said tax, the amounts allowed by the court as compensation to the "trustees" and
paid to them from the decedent's estate.
V. In not rendering judgment in favor of the plaintiff and in denying his motion for new trial.
The defendant-appellant contradicts the theories of the plaintiff and assigns the following error
besides:
The lower court erred in not ordering the plaintiff to pay to the defendant the sum of
P1,191.27, representing part of the interest at the rate of 1 per cent per month from April 10,
1924, to June 30, 1931, which the plaintiff had failed to pay on the inheritance tax assessed
by the defendant against the estate of Thomas Hanley.
The following are the principal questions to be decided by this court in this appeal: (a) When does
the inheritance tax accrue and when must it be satisfied? (b) Should the inheritance tax be
computed on the basis of the value of the estate at the time of the testator's death, or on its value ten
years later? (c) In determining the net value of the estate subject to tax, is it proper to deduct the
compensation due to trustees? (d) What law governs the case at bar? Should the provisions of Act
No. 3606 favorable to the tax-payer be given retroactive effect? (e) Has there been deliquency in the
payment of the inheritance tax? If so, should the additional interest claimed by the defendant in his
appeal be paid by the estate? Other points of incidental importance, raised by the parties in their
briefs, will be touched upon in the course of this opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to pay the same. Section 1536 as
amended, of the Administrative Code, imposes the tax upon "every transmission by virtue of
inheritance, devise, bequest, giftmortis causa, or advance in anticipation of inheritance,devise, or
bequest." The tax therefore is upon transmission or the transfer or devolution of property of a
decedent, made effective by his death. (61 C. J., p. 1592.) It is in reality an excise or privilege tax
imposed on the right to succeed to, receive, or take property by or under a will or the intestacy law,
or deed, grant, or gift to become operative at or after death. Acording to article 657 of the Civil Code,
"the rights to the succession of a person are transmitted from the moment of his death." "In other
words", said Arellano, C. J., ". . . the heirs succeed immediately to all of the property of the deceased
ancestor. The property belongs to the heirs at the moment of the death of the ancestor as completely
as if the ancestor had executed and delivered to them a deed for the same before his death."
(Bondad vs. Bondad, 34 Phil., 232. See also, Mijares vs. Nery, 3 Phil., 195; Suilong & Co., vs. ChioTaysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil., 391; Innocencio vs. Gat-Pandan, 14 Phil., 491;
Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio,
19 Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti Steamship Co., 41 Phil.,
531; Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First Instance of Capiz, 51 Phil., 396; Baun vs.
Heirs of Baun, 53 Phil., 654.) Plaintiff, however, asserts that while article 657 of the Civil Code is
applicable to testate as well as intestate succession, it operates only in so far as forced heirs are
concerned. But the language of article 657 of the Civil Code is broad and makes no distinction
between different classes of heirs. That article does not speak of forced heirs; it does not even use
the word "heir". It speaks of the rights of succession and the transmission thereof from the moment
of death. The provision of section 625 of the Code of Civil Procedure regarding the authentication

and probate of a will as a necessary condition to effect transmission of property does not affect the
general rule laid down in article 657 of the Civil Code. The authentication of a will implies its due
execution but once probated and allowed the transmission is effective as of the death of the testator
in accordance with article 657 of the Civil Code. Whatever may be the time when actual transmission
of the inheritance takes place, succession takes place in any event at the moment of the decedent's
death. The time when the heirs legally succeed to the inheritance may differ from the time when the
heirs actually receive such inheritance. "Poco importa", says Manresa commenting on article 657 of
the Civil Code, "que desde el falleimiento del causante, hasta que el heredero o legatario entre en
posesion de los bienes de la herencia o del legado, transcurra mucho o poco tiempo, pues la
adquisicion ha de retrotraerse al momento de la muerte, y asi lo ordena el articulo 989, que debe
considerarse como complemento del presente." (5 Manresa, 305; see also, art. 440, par. 1, Civil
Code.) Thomas Hanley having died on May 27, 1922, the inheritance tax accrued as of the date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow that the
obligation to pay the tax arose as of the date. The time for the payment on inheritance tax is clearly
fixed by section 1544 of the Revised Administrative Code as amended by Act No. 3031, in relation to
section 1543 of the same Code. The two sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions. The following shall not
be taxed:
(a) The merger of the usufruct in the owner of the naked title.
(b) The transmission or delivery of the inheritance or legacy by the fiduciary heir or
legatee to the trustees.
(c) The transmission from the first heir, legatee, or donee in favor of another
beneficiary, in accordance with the desire of the predecessor.
In the last two cases, if the scale of taxation appropriate to the new beneficiary is greater
than that paid by the first, the former must pay the difference.
SEC. 1544. When tax to be paid. The tax fixed in this article shall be paid:
(a) In the second and third cases of the next preceding section, before entrance into
possession of the property.
(b) In other cases, within the six months subsequent to the death of the predecessor;
but if judicial testamentary or intestate proceedings shall be instituted prior to the
expiration of said period, the payment shall be made by the executor or administrator
before delivering to each beneficiary his share.
If the tax is not paid within the time hereinbefore prescribed, interest at the rate of twelve per
centum per annum shall be added as part of the tax; and to the tax and interest due and
unpaid within ten days after the date of notice and demand thereof by the collector, there
shall be further added a surcharge of twenty-five per centum.

A certified of all letters testamentary or of admisitration shall be furnished the Collector of

Internal Revenue by the Clerk of Court within thirty days after their issuance.
It should be observed in passing that the word "trustee", appearing in subsection (b) of section 1543,
should read "fideicommissary" or "cestui que trust". There was an obvious mistake in translation
from the Spanish to the English version.
The instant case does fall under subsection (a), but under subsection (b), of section 1544 abovequoted, as there is here no fiduciary heirs, first heirs, legatee or donee. Under the subsection, the
tax should have been paid before the delivery of the properties in question to P. J. M. Moore as
trustee on March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real properties are
concerned, did not and could not legally pass to the instituted heir, Matthew Hanley, until after the
expiration of ten years from the death of the testator on May 27, 1922 and, that the inheritance tax
should be based on the value of the estate in 1932, or ten years after the testator's death. The
plaintiff introduced evidence tending to show that in 1932 the real properties in question had a
reasonable value of only P5,787. This amount added to the value of the personal property left by the
deceased, which the plaintiff admits is P1,465, would generate an inheritance tax which, excluding
deductions, interest and surcharge, would amount only to about P169.52.
If death is the generating source from which the power of the estate to impose inheritance taxes
takes its being and if, upon the death of the decedent, succession takes place and the right of the
estate to tax vests instantly, the tax should be measured by the vlaue of the estate as it stood at the
time of the decedent's death, regardless of any subsequent contingency value of any subsequent
increase or decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and
Bancroft, Inheritance Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep.,
747; 44 Law. ed., 969.) "The right of the state to an inheritance tax accrues at the moment of death,
and hence is ordinarily measured as to any beneficiary by the value at that time of such property as
passes to him. Subsequent appreciation or depriciation is immaterial." (Ross, Inheritance Taxation,
p. 72.)
Our attention is directed to the statement of the rule in Cyclopedia of Law of and Procedure (vol. 37,
pp. 1574, 1575) that, in the case of contingent remainders, taxation is postponed until the estate
vests in possession or the contingency is settled. This rule was formerly followed in New York and
has been adopted in Illinois, Minnesota, Massachusetts, Ohio, Pennsylvania and Wisconsin. This
rule, horever, is by no means entirely satisfactory either to the estate or to those interested in the
property (26 R. C. L., p. 231.). Realizing, perhaps, the defects of its anterior system, we find upon
examination of cases and authorities that New York has varied and now requires the immediate
appraisal of the postponed estate at its clear market value and the payment forthwith of the tax on its
out of the corpus of the estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 N. E., 782; In re Huber,
86 N. Y. App. Div., 458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519; Estate of
Brez, 172 N. Y., 609; 64 N. E., 958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., 1079. Vide
also, Saltoun vs. Lord Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas., 888.)
California adheres to this new rule (Stats. 1905, sec. 5, p. 343).

But whatever may be the rule in other jurisdictions, we hold that a transmission by inheritance is
taxable at the time of the predecessor's death, notwithstanding the postponement of the actual
possession or enjoyment of the estate by the beneficiary, and the tax measured by the value of the
property transmitted at that time regardless of its appreciation or depreciation.
(c) Certain items are required by law to be deducted from the appraised gross in arriving at the net
value of the estate on which the inheritance tax is to be computed (sec. 1539, Revised
Administrative Code). In the case at bar, the defendant and the trial court allowed a deduction of only
P480.81. This sum represents the expenses and disbursements of the executors until March 10,
1924, among which were their fees and the proven debts of the deceased. The plaintiff contends that
the compensation and fees of the trustees, which aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH,
JJ, LL, NN, OO), should also be deducted under section 1539 of the Revised Administrative Code
which provides, in part, as follows: "In order to determine the net sum which must bear the tax, when
an inheritance is concerned, there shall be deducted, in case of a resident, . . . the judicial expenses
of the testamentary or intestate proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney vs. Saunders,
16 How., 535; 14 Law. ed., 1047). But from this it does not follow that the compensation due him
may lawfully be deducted in arriving at the net value of the estate subject to tax. There is no statute
in the Philippines which requires trustees' commissions to be deducted in determining the net value
of the estate subject to inheritance tax (61 C. J., p. 1705). Furthermore, though a testamentary trust
has been created, it does not appear that the testator intended that the duties of his executors and
trustees should be separated. (Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893; 175 App. Div.,
363; In re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph 5 of his will, the
testator expressed the desire that his real estate be handled and managed by his executors until the
expiration of the period of ten years therein provided. Judicial expenses are expenses of
administration (61 C. J., p. 1705) but, in State vs. Hennepin County Probate Court (112 N. W., 878;
101 Minn., 485), it was said: ". . . The compensation of a trustee, earned, not in the administration of
the estate, but in the management thereof for the benefit of the legatees or devises, does not come
properly within the class or reason for exempting administration expenses. . . . Service rendered in
that behalf have no reference to closing the estate for the purpose of a distribution thereof to those
entitled to it, and are not required or essential to the perfection of the rights of the heirs or legatees. .
. . Trusts . . . of the character of that here before the court, are created for the the benefit of those to
whom the property ultimately passes, are of voluntary creation, and intended for the preservation of
the estate. No sound reason is given to support the contention that such expenses should be taken
into consideration in fixing the value of the estate for the purpose of this tax."
(d) The defendant levied and assessed the inheritance tax due from the estate of Thomas Hanley
under the provisions of section 1544 of the Revised Administrative Code, as amended by section 3
of Act No. 3606. But Act No. 3606 went into effect on January 1, 1930. It, therefore, was not the law
in force when the testator died on May 27, 1922. The law at the time was section 1544 abovementioned, as amended by Act No. 3031, which took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in force at the time of the death
of the decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p. 3461). The taxpayer can not
foresee and ought not to be required to guess the outcome of pending measures. Of course, a tax

statute may be made retroactive in its operation. Liability for taxes under retroactive legislation has
been "one of the incidents of social life." (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup.
Ct. Rep., 44.) But legislative intent that a tax statute should operate retroactively should be perfectly
clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings Bank, 257 U. S.,
602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) "A statute should
be considered as prospective in its operation, whether it enacts, amends, or repeals an inheritance
tax, unless the language of the statute clearly demands or expresses that it shall have a retroactive
effect, . . . ." (61 C. J., P. 1602.) Though the last paragraph of section 5 of Regulations No. 65 of the
Department of Finance makes section 3 of Act No. 3606, amending section 1544 of the Revised
Administrative Code, applicable to all estates the inheritance taxes due from which have not been
paid, Act No. 3606 itself contains no provisions indicating legislative intent to give it retroactive effect.
No such effect can begiven the statute by this court.
The defendant Collector of Internal Revenue maintains, however, that certain provisions of Act No.
3606 are more favorable to the taxpayer than those of Act No. 3031, that said provisions are penal in
nature and, therefore, should operate retroactively in conformity with the provisions of article 22 of
the Revised Penal Code. This is the reason why he applied Act No. 3606 instead of Act No. 3031.
Indeed, under Act No. 3606, (1) the surcharge of 25 per cent is based on the tax only, instead of on
both the tax and the interest, as provided for in Act No. 3031, and (2) the taxpayer is allowed twenty
days from notice and demand by rthe Collector of Internal Revenue within which to pay the tax,
instead of ten days only as required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an offense committed against
the state which, under the Constitution, the Executive has the power to pardon. In common use,
however, this sense has been enlarged to include within the term "penal statutes" all status which
command or prohibit certain acts, and establish penalties for their violation, and even those which,
without expressly prohibiting certain acts, impose a penalty upon their commission (59 C. J., p.
1110). Revenue laws, generally, which impose taxes collected by the means ordinarily resorted to for
the collection of taxes are not classed as penal laws, although there are authorities to the contrary.
(See Sutherland, Statutory Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468; 12 Sup.
Ct., 55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co., 101 Pa. St., 150;
State vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the Revised Penal Code is not applicable to
the case at bar, and in the absence of clear legislative intent, we cannot give Act No. 3606 a
retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time and the tax
may be paid within another given time. As stated by this court, "the mere failure to pay one's tax
does not render one delinqent until and unless the entire period has eplased within which the
taxpayer is authorized by law to make such payment without being subjected to the payment of
penalties for fasilure to pay his taxes within the prescribed period." (U. S. vs. Labadan, 26 Phil.,
239.)
The defendant maintains that it was the duty of the executor to pay the inheritance tax before the
delivery of the decedent's property to the trustee. Stated otherwise, the defendant contends that
delivery to the trustee was delivery to the cestui que trust, the beneficiery in this case, within the
meaning of the first paragraph of subsection (b) of section 1544 of the Revised Administrative Code.

This contention is well taken and is sustained. The appointment of P. J. M. Moore as trustee was
made by the trial court in conformity with the wishes of the testator as expressed in his will. It is true
that the word "trust" is not mentioned or used in the will but the intention to create one is clear. No
particular or technical words are required to create a testamentary trust (69 C. J., p. 711). The words
"trust" and "trustee", though apt for the purpose, are not necessary. In fact, the use of these two
words is not conclusive on the question that a trust is created (69 C. J., p. 714). "To create a trust by
will the testator must indicate in the will his intention so to do by using language sufficient to
separate the legal from the equitable estate, and with sufficient certainty designate the beneficiaries,
their interest in the ttrust, the purpose or object of the trust, and the property or subject matter
thereof. Stated otherwise, to constitute a valid testamentary trust there must be a concurrence of
three circumstances: (1) Sufficient words to raise a trust; (2) a definite subject; (3) a certain or
ascertain object; statutes in some jurisdictions expressly or in effect so providing." (69 C. J., pp.
705,706.) There is no doubt that the testator intended to create a trust. He ordered in his will that
certain of his properties be kept together undisposed during a fixed period, for a stated purpose. The
probate court certainly exercised sound judgment in appointment a trustee to carry into effect the
provisions of the will (see sec. 582, Code of Civil Procedure).
P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in him (sec. 582
in relation to sec. 590, Code of Civil Procedure). The mere fact that the estate of the deceased was
placed in trust did not remove it from the operation of our inheritance tax laws or exempt it from the
payment of the inheritance tax. The corresponding inheritance tax should have been paid on or
before March 10, 1924, to escape the penalties of the laws. This is so for the reason already stated
that the delivery of the estate to the trustee was in esse delivery of the same estate to the cestui que
trust, the beneficiary in this case. A trustee is but an instrument or agent for thecestui que
trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When Moore
accepted the trust and took possesson of the trust estate he thereby admitted that the estate
belonged not to him but to hiscestui que trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p.
692, n. 63). He did not acquire any beneficial interest in the estate. He took such legal estate only as
the proper execution of the trust required (65 C. J., p. 528) and, his estate ceased upon the
fulfillment of the testator's wishes. The estate then vested absolutely in the beneficiary (65 C. J., p.
542).
The highest considerations of public policy also justify the conclusion we have reached. Were we to
hold that the payment of the tax could be postponed or delayed by the creation of a trust of the type
at hand, the result would be plainly disastrous. Testators may provide, as Thomas Hanley has
provided, that their estates be not delivered to their beneficiaries until after the lapse of a certain
period of time. In the case at bar, the period is ten years. In other cases, the trust may last for fifty
years, or for a longer period which does not offend the rule against petuities. The collection of the tax
would then be left to the will of a private individual. The mere suggestion of this result is a sufficient
warning against the accpetance of the essential to the very exeistence of government. (Dobbins vs.
Erie Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. ed.,
558; Lane County vs. Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs.
Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles River Bridge vs. Warren
Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation to pay taxes rests not upon the privileges
enjoyed by, or the protection afforded to, a citizen by the government but upon the necessity of
money for the support of the state (Dobbins vs. Erie Country, supra). For this reason, no one is

allowed to object to or resist the payment of taxes solely because no personal benefit to him can be
pointed out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While courts
will not enlarge, by construction, the government's power of taxation (Bromley vs. McCaughn, 280 U.
S., 124; 74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place upon tax laws so loose a
construction as to permit evasions on merely fanciful and insubstantial distictions. (U. S. vs. Watts, 1
Bond., 580; Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690,
followed in Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle Bros., Wolf & Sons
vs. McCoy, 21 Phil., 300; Muoz & Co. vs. Hord, 12 Phil., 624; Hongkong & Shanghai Banking
Corporation vs. Rafferty, 39 Phil., 145; Luzon Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When
proper, a tax statute should be construed to avoid the possibilities of tax evasion. Construed this
way, the statute, without resulting in injustice to the taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy deeply intrenched in our tax system. Thus, no court
is allowed to grant injunction to restrain the collection of any internal revenue tax ( sec. 1578,
Revised Administrative Code; Sarasola vs. Trinidad, 40 Phil., 252). In the case of Lim Co Chui vs.
Posadas (47 Phil., 461), this court had occassion to demonstrate trenchment adherence to this
policy of the law. It held that "the fact that on account of riots directed against the Chinese on
October 18, 19, and 20, 1924, they were prevented from praying their internal revenue taxes on time
and by mutual agreement closed their homes and stores and remained therein, does not authorize
the Collector of Internal Revenue to extend the time prescribed for the payment of the taxes or to
accept them without the additional penalty of twenty five per cent." (Syllabus, No. 3.)
". . . It is of the utmost importance," said the Supreme Court of the United States, ". . . that the
modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay
in the proceedings of the officers, upon whom the duty is developed of collecting the taxes, may
derange the operations of government, and thereby, cause serious detriment to the public." (Dows
vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66; Churchill and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents has been delinquent in the payment of inheritance
tax and, therefore, liable for the payment of interest and surcharge provided by law in such cases.
The delinquency in payment occurred on March 10, 1924, the date when Moore became trustee.
The interest due should be computed from that date and it is error on the part of the defendant to
compute it one month later. The provisions cases is mandatory (see and cf. Lim Co Chui vs.
Posadas, supra), and neither the Collector of Internal Revenuen or this court may remit or decrease
such interest, no matter how heavily it may burden the taxpayer.
To the tax and interest due and unpaid within ten days after the date of notice and demand thereof
by the Collector of Internal Revenue, a surcharge of twenty-five per centum should be added (sec.
1544, subsec. (b), par. 2, Revised Administrative Code). Demand was made by the Deputy Collector
of Internal Revenue upon Moore in a communiction dated October 16, 1931 (Exhibit 29). The date
fixed for the payment of the tax and interest was November 30, 1931. November 30 being an official
holiday, the tenth day fell on December 1, 1931. As the tax and interest due were not paid on that
date, the estate became liable for the payment of the surcharge.

In view of the foregoing, it becomes unnecessary for us to discuss the fifth error assigned by the
plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge due from the estate of
Thomas Hanley inaccordance with the conclusions we have reached.
At the time of his death, the deceased left real properties valued at P27,920 and personal properties
worth P1,465, or a total of P29,385. Deducting from this amount the sum of P480.81, representing
allowable deductions under secftion 1539 of the Revised Administrative Code, we have P28,904.19
as the net value of the estate subject to inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised Administrative Code,
should be imposed at the rate of one per centum upon the first ten thousand pesos and two per
centum upon the amount by which the share exceed thirty thousand pesos, plus an additional two
hundred per centum. One per centum of ten thousand pesos is P100. Two per centum of
P18,904.19 is P378.08. Adding to these two sums an additional two hundred per centum, or
P965.16, we have as primary tax, correctly computed by the defendant, the sum of P1,434.24.
To the primary tax thus computed should be added the sums collectible under section 1544 of the
Revised Administrative Code. First should be added P1,465.31 which stands for interest at the rate
of twelve per centum per annum from March 10, 1924, the date of delinquency, to September 15,
1932, the date of payment under protest, a period covering 8 years, 6 months and 5 days. To the tax
and interest thus computed should be added the sum of P724.88, representing a surhcarge of 25
per cent on both the tax and interest, and also P10, the compromise sum fixed by the defendant
(Exh. 29), giving a grand total of P3,634.43.
As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is legally due
from the estate. This last sum is P390.42 more than the amount demanded by the defendant in his
counterclaim. But, as we cannot give the defendant more than what he claims, we must hold that the
plaintiff is liable only in the sum of P1,191.27 the amount stated in the counterclaim.
The judgment of the lower court is accordingly modified, with costs against the plaintiff in both
instances. So ordered.
Avancea, C.J., Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
Villa-Real, J., concurs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27531 December 24, 1927

In re estate of the deceased Victoriana Saavedra. MACARIO MACROHON ONG

HAM, administrator-appellant,
vs.
JUAN SAAVEDRA, ET AL., opponents-appellees.
Frank H. Young and Pablo Lorenzo for appellant.
No appearance for appellees.

VILLAMOR, J.:
Macario Macrohon Ong Ham, widower and executor of the joint last will and testament of Victoriana
Saavedra and himself, presented said will for probate, which was ordered by the Court of First
Instance of Zamboanga in its decree of February 21, 1924.
This executor submitted a scheme of partition and distribution of the property in accordance with the
terms of the joint will, to which Juan Saavedra and others filed an opposition. The executor rejoined
insisting upon the approval of the scheme and asking that the opposition of Juan Saavedra and
others be overruled.
On March 25, 1926, the parties submitted a statement of facts, which reads as follows:
1. That Victoriana Saavedra died in the municipality and Province of Zamboanga, P. I.,
without descendants or ascendants, being at that time married to Macario Macrohon Ong
Ham, both of them having executed a joint will, which joint will has been duly admitted to
probate in this court.
2. That the only near relations of the said Victoriana Saavedra, with the right to inherit her
estate are her brothers Juan and Segundo Saavedra; her nephews and nieces, Teofilo
Saavedra, Manuel Saavedra, Victoriana Saavedra, Mariano Saavedra, Froilan Saavedra,
Josefa Saavedra, Encarnacion Carpio and Macra Carpio, in case that the said Victoriana
Saavedra died intestate, or did not dispose of her property in said will.
3. That aside from the estate mentioned in the said last will and testament, duly probated by
this Honorable Court, there exist another parcel of land, acquired by Ong Ham the year
1920, by purchase from Ong Tah, and adjudicated to the said Ong Ham in Expediente No. 6
(Cadastral).
Lot No. 3057, with the improvements thereon in favor of the persons named below in the
following proportions: Ong Ham, aged 65 years, married to Victoriana Saavedra, 19/20 parts;
Crispulo Macoto Cruz, of legal age, 1/40 part; and Juan Mocoto, 1/40 part.
4. That the interest parties in this proceeding herewith submit to this Honorable Court the
rights of the respective parties in this estate, in accordance with the terms of this joint last will

and testament of the spouses, Macario Macrohon Ong Ham, and of Victoriana Saavedra,
deceased.
5. That the parties representing Macario Macrohon Ong Ham admit that he sold lots Nos. 34
and 35, ofExpediente No. 8196, for the sum of P1,900, believing in good faith that he could
sell the same for his personal uses.
6. That the party representing Juan Saavedra, and the other relations heretofore named
hereby withdraw their opposition which they have presented to the final account of the
surviving spouse, Macario Macrohon Ong Ham, and conform to the same, and ask that the
Court approve the said final account.
The will referred to in the statement of facts above quoted reads as follows:
That we, Macario Macrohon Ong Ham Victoriana Saavedra, both residing at San Roque,
municipality and Province of Zamboanga, Philippine Islands, and both of about 70 years of
age, realizing that we have but a few more years to live, and each of us being in the full
enjoyment of his intellectual faculties and not acting by virtue of threats, force or undue
influence, individually and conjointly do hereby make public, declare, and execute this, our
last will and testament, in the following terms:
We hereby declare that we are husband and wife; that we have had no issue, nor have we
adopted children.
We hereby likewise declare that Macario Macrohon Ong Ham is a native of China, having
resided in Zamboanga, Philippine Islands for over 40 years, and that Victoriana Saavedra is
a native of the Philippine Islands.
We furthermore declare that Macario Macrohon Ong Ham has two nephews at present
residing in Zamboanga, Philippine Islands, whom he has always treated as his own sons,
following the custom of Amoy, China, whose names and ages respectively as follows:
Ong Ka Chiew, residing at San Roque, Zambaoanga, P. I., about 20 years of age, single, and
Ong Ka Jian, also residing at San Roque, Zamboanga, P.I., about 18 years of age, single.
We also declare that there are actually registered in our names, as conjugal property, the
following parcels of land located in Zamboanga, P. I., to wit:
Lot No. 838 A, proceeding 7880, certificate No. 1257
Lot No. 825, proceeding 7880, certificate No. 1783
Lot No. 832, proceeding 7880, same certificate
Lot No. 330, proceeding 7880, certificate No. 4027
Lot No. 1, proceeding 7880, same certificate
Lot No. 199, proceeding 7880, certificate No. 736
Lot No. 329, proceeding 7880, certificate No. 858
Lot No. 838 C, proceeding 7880, certificate No. 1259

Lot No. 831 B, proceeding 7880, certificate No. 1256

Lot No. 817, proceeding 7880, certificate No. 1247
Lot No. 768, proceeding 7880, certificate No. 1105
Lot No. 35, proceeding 8196, certificate No. 1257
Lot No. 65 A, proceeding 8196, certificate No. 3688
Lot No. 834, proceeding 7880, certificate No. 4025
Lot No. 96, proceeding 8196, certificate No. 4025
Lot No. 57 A, proceeding 8196, certificate No. 4871
Lot No. 222, proceeding 7880, certificate No. 861
Lot No. 34, proceeding 8196, certificate No. 4858
Lot No. 137 C, proceeding 8196, certificate No. 2223
We do hereby agree jointly and individually, that our properties above described by disposed
of in the following manner:
lawphi1.net

In case of the death of Macario Macrohon Ong Ham before Victoriana Saavedra, we hereby
order that the properties hereinafter described be jointly given to Ong Ka Chiew and Ong Ka
Jian , and should either of the two die before Macario Macrohon Ong Ham, we order that all
the said properties be given to the survivor, which properties are described as follows:
Lot No. 838 C, proceeding 7880, certificate No. 1259
Lot No. 831 B, proceeding 7880, certificate No. 1256
Lot No. 825, proceeding 7880, certificate No. 1783
Lot No. 832, proceeding 7880, same certificate
Lot No. 330, proceeding 7880, certificate No. 4027
Lot No. 1, proceeding 7880, same certificate
Lot No. 199, proceeding 7880, certificate No. 736
Lot No. 329, proceeding 7880, certificate No. 858
Lot No. 35, proceeding 8196, certificate No. 1257
Lot No. 65 A, proceeding 8196, certificate No. 3688
Lot No. 834, proceeding 7880, certificate No. 4025
Lot No. 96, proceeding 8196, same certificate
Lot No. 57 A, proceeding 8196, certificate No. 4871
Lot No. 222, proceeding 7880, certificate No. 861
Lot No. 34, proceeding 8196, certificate 4858
Lot No. 137 C, proceeding 8196, certificate No. 2223
In case that Victoriana Saavedra should survive Macario Macrohon Ong Ham, the lands and
properties described below shall belong exclusively to Victoriana Saavedra, to wit:
Lot No. 838 A, proceeding 7880, certificate No. 1257
Lot No. 817, proceeding 7880, certificate No. 1247
Lot No. 768, proceeding 7880, certificate No. 1105

Should Victoriana Saavedra die before Macario Macrohon Ong Ham, we order that lot No.
817-A, proceeding No. 7880, certificate No. 1247, be adjudicated to Segunda Saavedra,
widow, sister of Victoriana Saavedra, free of all liens and encumbrances.
We further order that all our debts and just obligations, including the expenses of our last
illness and funerals, be paid by Ong Ka Chiew and Ong Ka Jian.
If any of the legatees named herein should question or in any way attempt to alter the
disposition of any of our several properties, such legatee is to lose and shall no longer
receive the benefits and rights herein specified.
We individually and cojointly declare that the contents of this document have been read
aloud to us in our dialect and that we understand said contents, this document having been
read in the presence of each of us and in the presence of the witnesses whose names are
mentioned further on and who have signed the present instrument together with ourselves.
In witness whereof, we sign this our last will and testament at Zamboanga, Zamboanga,
Philippine Islands, on this second (2) day of January, 1923.
We, Ong Peh, Ong Chua, and T. Arquiza, do hereby certify that the foregoing document
consisting of five (5) sheets including the present, was on the date above-mentioned, signed
by the testators Macario Macrohon Ong Ham and Victoriana Saavedra on all its sheets, in
our presence at their request, in their presence, and in the presence of each other we have
signed our names as witnesses on all the sheets of said will.
The lower court solving the question raised by the parties in their agreement of facts, held that the
one-half of the property described in the will, all of lot No. 3057, cadastral case No. 6; one-half of the
cash balance of the final account to be rendered by the executor, and half of the proceeds of the
sale of lots No. 34 and 35 of Proceeding No. 8196, belong to Macario Macrohon Ong Ham; and as it
appears from the will quoted, as well as from the agreement dated March 25, 1926, that Victoriana
Saavedra left no legitimate ascendants or descendants at the time of her death Macario Macrohon
Ong Ham, her widower, is, according to the provisions of articles 837 of the Civil Code, entitled to
the usufruct of one-half of the estate of the said Victoriana Saavedra, consisting of one-half of the
property described in the will, excluding lots No. 817 and 768 of proceeding No. 7880, given to
Segunda Saavedra with the consent of Macario Macrohon Ong Ham; of one-half of the cash balance
of the executor's final account, and of half of the proceeds of the sale of lots Nos. 34 and 35 in
proceeding No. 8196, and said estate is adjudicated as follows: one-half of the same belongs in
usufruct to the widower Macario Macrohon Ong Ham, and the naked ownership of this half as well
as the full ownership of the other half is adjudicated to Victoriana Saavedra's heirs, named in the
said agreement dated March 25, 1926, in the following manner: sixteenths of the naked ownership of
the one-half in usufruct and sixteenths of the other half in full ownership, to Juan Saavedra;
sixteenths of the naked ownership of the one-half in usufruct ands sixteenths of the other half in full
ownership, to Segunda Saavedra; and, sixteenths of the naked ownership of the one-half in usufruct
and sixteenths of the other half in full ownership to Teofilo Saavedra, Manuel Saavedra, Victoriana
Saavedra, Mariano Saavedra, Froilan Saavedra and Josefa Saavedra, children of Mateo Saavedra,
deceased brother of Victoriana Saavedra, in equal parts; and to Encarnacion Carpio and Macra

Carpio, daughters of Petrona Saavedra, deceased sister of Victoriana Saavedra, sixteenths of the
naked ownership of the one-half in usufruct and sixteenths of the other half in full ownership, in
equal parts.
As regards lots Nos. 817 and 768 of proceeding No. 7880, given to Segunda Saavedra, the
court adjudicates the same to the said Segunda Saavedra, in accordance with the clauses
on lines 99-111 of the will.
Finally, the court orders that the executor, after paying the inheritance tax, distribute among
Victoriana Saavedra's heirs named in the agreement of March 25, 1926, the part belonging
to each of them as hereinabove stated, and after this delivery is made and the inheritance
tax, if any, is paid, this proceeding is to be considered closed ipso facto.
Counsel for the executor appealed from this decision and assigns in his brief the following alleged
errors as committed by the lower court:
I. In holding in its auto, of November 26, 1926, that the deceased, Victoriana Saavedra, died
partially intestate, and did not dispose of all her property by the joint last will and testament
executed by herself and her husband, Macario Macrohon Ong Ham, and in not finding that
under the terms of the aforesaid joint will the legatees, Ong Ka Chiew and Ong Ka Jian,
named therein, were entitled to receive her estate and participation in the sixteen parcels of
land devised under the said joint will, by the said spouses.
II. In holding that the brother and the sister of Victoriana Saavedra, by name, Juan Saavedra
and Segundo Saavedra; her nephews and nieces, by name, Teofilo Saavedra, Manuel
Saavedra, Victoriana Saavedra, Mariano Saavedra, Froilan Saavedra, Josefa Saavedra,
Encarnacion Carpio and Macra Carpio, her next of kin were entitled to receive any part of her
estate and participation in the said sixteen parcels of land, devised to the above named
legatees, Ong Ka Chiew and Ong Ka Jian, under the terms of the said joint last will and
testament.
The parts of the will pertinent to the questions raised by the appellant are:
We do agree jointly and individually that our properties above described be disposed of in
the following manner:
In case of the death of Macario Macrohon Ong Ham before Victoriana Saavedra, we hereby
order that the properties hereinafter described given to Ong Ka Chiew and Ong Ka Jian
jointly, and should either of the two die before Macario Macrohon Ong Ham, we order that all
the said properties be given to the survivor, which properties are described as follows:
(Here follows a description of 16 of the 19 lots that are also described in the will as conjugal
property of the testator and testatrix.)
In case that Victoriana Saavedra should survive Macario Macrohon Ong Ham, the lands and
properties described below shall belong exclusively to Victoriana Saavedra, to wit:

Lot No. 838 A, proceeding 7880, certificate No. 1257

Lot No. 817, proceeding 7880, certificate No. 1247
Lot No. 768, proceeding 7880, certificate No. 1105
Should Victoriana Saavedra die before Macario Macrohon Ong Ham, we order that lot No.
817 A, proceeding No. 7880, certificate No. 1247, be adjudicated to Segunda Saavedra,
widow, sister of Victoriana Saavedra, free of all liens and encumbrances.
We also order that lot No. 768, proceeding No. 7880, certificate No. 1105, be adjudicated to
Segunda Saavedra and her heirs, on condition that she devote the products of the same to
having masses said for the repose of the soul of Victoriana Saavedra.
In case of the death of either of us, we order that the surviving spouse be appointed executor
of this our last will and testament.
Appellant alleges that the trial court erred in holding that Victoriana Saavedra died partly intestate.
Article 658 of the Civil Code provides:
ART. 658. Succession is effected either by the will of man expressed by the testament or, in
the absence of a testament, by operation of law.
The first is called testamentary, the second legal succession.
It may also be effected partly by the will of man and partly by operation of law.
According to this, there are three ways in which succession may be effected: by the will of man, by
the law, or by both at the same time. In the first case the succession is called testamentary, because
it is based on the last will and testament, which is the orderly manifestation of the testator's will; in
the second, it is called legal, because it takes effect by operation of the law; and the third is called
mixed, because it partakes of the character of both testamentary and legal succession.
Commenting on the third mode of effecting succession, Mr. Manresa says: "The rule of indivisibility
and incompatibility was transferred to our laws from pure Romanism, and it remained in them until
the XV Century, when the law of the Ordenamiento previously cited repealed the maxim nemo pro
parte testatus pro parte intestatus decedere protest. This same repeal is confirmed in paragraph 3 of
the article under consideration (658), which prescribes that it may also be effected partly by the will
of man and partly by operation of law, and in articles 764 and 912 above cited which call the legal
heirs to the enjoyment of the part of the inheritance not disposed of by the testator in his will." (Vol. 5,
1921 ed., pp. 326, 327.)
This is a refutation of the appellant's argument that no one who has executed a will can die partly
intestate. That the rule of indivisibility of the testator's will invoked by the appellant does not hold
good in this jurisdiction, is shown, moreover, by articles 764 and 912 of the Civil Code. According to
the first of these articles, a will is valid even though it does not contain any institution of an heir, or if
such institution does not include the entire estate, and even though the person instituted does not
accept the inheritance or is disqualified to inherit; according to the second, one of the ways in which

legal succession may take place is when the will does not institute an heir to all or part of the
property, or does not dispose of all that belongs to the testator, in which case legal succession shall
take place only with respect to the property which the testator has not disposed of.
Assuming that the joint will in question is valid, it follows that the deceased Victoriana Saavedra
specified therein that parcels 187 and 768 in proceeding No. 7880 be delivered as a legacy to her
sister Segunda Saavedra, the first parcel free of all liens and encumbrances, and the second on the
condition that the legatee devote the products of the same to having masses said for the repose to
the testatrix's soul. As to the remaining sixteen parcels, the testatrix disposed of her part in them
conditionally, that is to say, in case her husband Macario Macrohon Ong Ham died before she died,
said parcels were to be awarded to her husband's nephews, or to either of them in case one should
have died before the said Macario Macrohon Ong Ham. The condition imposed in the will as
precedent to the vesting in the alleged legatees Ong Ka Chiew and Ong Ka Jian of the right to the
legacy, not having been complied with, the trial court found that the part of said property belonging to
the testatriz should be partitioned among the persons called on to succeed her under the law. We
are of the opinion that this finding is in accordance with the law, since, under article 791 of the Civil
Code, conditions imposed upon heirs and legatees shall be governed by the rules established for
conditional obligations in all matters not provided for by this section (articles 790 to 805). And, in
accordance with article 1114 of the Code, in conditional obligations the acquisition of rights, as well
as the extinction or loss of those already acquired, shall depend upon the occurrence of the event
constituting the condition.
Another error assigned by the appellant consist in the trial court not having found that, under the
terms of the joint will, the legatees Ong Ka Chiew and Ong Ka Jian were entitled to receive the
testatrix's share in the sixteen parcels of land mentioned in said will.
The part of the will invoked by the appellant, states:
In case of the death of Macario Macrohon Ong Ham before Victoriana Saavedra, we hereby
order that the properties hereinafter described given to Ong Ka Chiew and Ong Ka Jian
jointly, and should either of the two die before Macario Macrohon Ong Ham, we order that all
the said properties be given to the survivor.
The trial court, in interpreting this paragraph of the will in regard to legatees Ong Ka Chiew and Ong
Ka Jian, reached the right conclusion, and rightly, in our opinion, that it provides for the substitution
of legatees in case either of them should die before Macario Macrohon Ong Ham; and that the
acquisition by these legatees of any right to the property described in the will depended on the
condition that Macario Macrohon Ong Ham died before Victoriana Saavedra.
The appellant also assigns as error the holding of the trial court that the opponents, the brother,
sister, nephews, and nieces of the testatrix, were entitled to receive her share in the said sixteen
parcels of land, given to the legatees, Ong Ka Chiew and Ong Ka Jian, under the terms of the said
joint will. Such a contention is untenable. As we have said, the acquisition of right by the alleged
legatees depends on the occurrence of the event constituting the condition, that is, the death of
Macario Macrohon Ong Ham prior to that of his wife; and this condition not having been complied

with, the said Ong Ka Chiew and Ong Ka Jian have not acquired any right, and therefore the
testatrix's estate is to be divided among her heirs in accordance with the law.
To the sixteen parcels of land to which reference is her made, that is, those given to the nephews of
the testator, should be added lot No. 838--A, proceeding No. 7880, certificate 1257, which the
testatrix had reserved to herself (together with lots 817 and 768), in case she survived her husband
Macario Macrohon Ong Ham.
One-half of these seventeen parcels of land belong to the widower, Macario Macrohon Ong Ham,
and the trial court shall order the division of the other half, that is, the estate of the deceased
Victoriana Saavedra, being one-half of the conjugal property, between the widower and the
opponents, as provided for in articles 945, 948 and 953 of the Civil Code. With this modification, the
order appealed from is affirmed in all other respects. So ordered.
Johnson, Street, Malcolm and Ostrand, JJ., concur.
Avancea, C.J. and Johns, J., dissent.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4275

March 23, 1909

PAULA CONDE, plaintiff-appellee,

vs.
ROMAN ABAYA, defendant-appellant.
C. Oben for appellant.
L. Joaquin for appellee.
ARELLANO, C.J.:
From the hearing of the appeal interposed by Roman Abaya in the special proceedings brought in
the Court of First Instance of La Laguna for the settlement of the intestate estate and the distribution
of the property of Casiano Abaya it appears:
I. As antecedents: that Casiano Abaya, unmarried, the son of Romualdo Abaya and Sabrina
Labadia, died on the 6th of April, 1899; that Paula Conde, as the mother of the natural children Jose
and Teopista Conde, whom the states she had by Casiano Abaya, on the 6th of November, 1905,
moved the settlement of the said intestate succession; that an administrator having been appointed
for the said estate on the 25th of November, 1905, Roman Abaya, a son of the said Romualdo
Abaya and Sabrina Labadia, the parents of the late Casiano Abaya, came forward and opposed said
appointment and claimed it for himself as being the nearest relative of the deceased; that this was
granted by the court below on the 9th of January, 1906; that on the 17th of November, 1906, Roman
Abaya moved that, after due process of law, the court declare him to be the sole heir of Casiano
Abaya, to the exclusion of all other persons, especially of Paula Conde, and to be therefore entitled
to take possession of all the property of said estate, and that it be adjudicated to him; and that on

November 22, 1906, the court ordered the publication of notices for the declaration of heirs and
distribution of the property of the estate.
II. That on the 28th of November, 1906, Paula Conde, in replying to the foregoing motion of Roman
Abaya, filed a petition wherein she stated that she acknowledged the relationship alleged by Roman
Abaya, but that she considered that her right was superior to his and moved for a hearing of the
matter, and, in consequence of the evidence that she intended to present she prayed that she be
declared to have preferential rights to the property left by Casiano Abaya, and that the same be
adjudicated to her together with the corresponding products thereof.
III. That the trial was held, both parties presenting documentary and oral evidence, and the court
below entered the following judgment:
That the administrator of the estate of Casiano Abaya should recognize Teopista and Jose
Conde as being natural children of Casiano Abaya; that the petitioner Paula Conde should
succeed to the hereditary rights of her children with respect to the inheritance of their
deceased natural father Casiano Abaya; and therefore, it is hereby declared that she is the
only heir to the property of the said intestate estate, to the exclusion of the administrator,
Roman Abaya.
IV. That Roman Abaya excepted to the foregoing judgment, appealed to this court, and presented
the following statement of errors:
1. The fact that the court below found that an ordinary action for the acknowledgment of natural
children under articles 135 and 137 of the Civil Code, might be brought in special probate
proceedings.
2. The finding that after the death of a person claimed to be an unacknowledged natural child, the
mother of such presumed natural child, as heir to the latter, may bring an action to enforce the
acknowledgment of her deceased child in accordance with articles 135 and 137 of the Civil Code.
3. The finding in the judgment that the alleged continuos possession of the deceased children of
Paula Conde of the status of natural children of the late Casiano Abaya, has been fully proven in
these proceedings; and
4. On the hypothesis that it was proper to adjudicate the property of this intestate estate to Paula
Conde, as improperly found by the court below, the court erred in not having declared that said
property should be reserved in favor of relatives of Casiano Abaya to the third degree, and in not
having previously demanded securities from Paula Conde to guarantee the transmission of the
property to those who might fall within the reservation.
As to the first error assigned, the question is set up as to whether in special proceedings for the
administration and distribution of an intestate estate, an action might be brought to enforce the
acknowledgment of the natural child of the person from whom the inheritance is derived, that is to
say, whether one might appear as heir on the ground that he is a recognized natural child of the
deceased, not having been so recognized by the deceased either voluntarily or compulsorily by
reason of a preexisting judicial decision, but asking at the same time that, in the special proceeding
itself, he be recognized by the presumed legitimate heirs of the deceased who claim to be entitled to
the succession opened in the special proceeding.
According to section 782 of the Code of Civil Procedure

If there shall be a controversy before the Court of First Instance as to who the lawful heirs of
the deceased person are, or as to the distributive share to which each person is entitled
under the law, the testimony as to such controversy shall be taken in writing by the judge,
under oath, and signed by the witness. Any party in interest whose distributive share is
affected by the determination of such controversy, may appeal from the judgment of the
Court of First Instance determining such controversy to the Supreme Court, within the time
and in the manner provided in the last preceding section.
This court has decided the present question in the manner shown in the case of Juana Pimentel vs.
Engracio Palanca (5 Phil. Rep., 436.)
The main question with regard to the second error assigned, is whether or not the mother of a
natural child now deceased, but who survived the person who, it is claimed, was his natural father,
also deceased, may bring an action for the acknowledgment of the natural filiation in favor of such
child in order to appear in his behalf to receive the inheritance from the person who is supposed to
be his natural father.
In order to decide in the affirmative the court below has assigned the following as the only
foundation:
In resolving a similar question Manresa says: "An acknowledgment can only be demanded
by the natural child and his descendants whom it shall benefit, and should they be minors or
otherwise incapacitated, such person as legally represents them; the mother may ask it in
behalf of her child so long as he is under her authority." On this point no positive declaration
has been made, undoubtedly because it was not considered necessary. A private action is in
question and the general rule must be followed. Elsewhere the same author adds: "It may so
happen that the child dies before four years have expired after attaining majority, or that the
document supporting his petition for acknowledgment is discovered after his death, such
death perhaps occurring after his parents had died, as is supposed by article 137, or during
their lifetime. In any case such right of action shall pertain to the descendants of the child
whom the acknowledgment may interest." (See Commentaries to arts. 135 and 137, Civil
Code, Vol. I.)
The above doctrine, advanced by one of the most eminent commentators of the Civil Code, lacks
legal and doctrinal foundation. The power to transmit the right of such action by the natural child to
his descendants can not be sustained under the law, and still less to his mother.
It is without any support in law because the rule laid down in the code is most positive, limiting in
form, when establishing the exception for the exercise of such right of action after the death of the
presumed parents, as is shown hereafter. It is not supported by any doctrine, because up to the
present time no argument has been presented, upon which even an approximate conclusion could
be based.
Although the Civil Code considerably improved the condition of recognized natural children, granting
them rights and actions that they did not possess under the former laws, they were not, however,
placed upon the same place as legitimate ones. The difference that separates these two classes of
children is still great, as proven by so many articles dealing with the rights of the family and the
succession in relation to the members thereof. It may be laid down as legal maxim, that whatever the
code does not grant to the legitimate children, or in connection with their rights, must still less be
understood as granted to recognized natural children or in connection with their rights. There is not a
single exception in its provisions.

If legitimacy is the attribute that constitutes the basis of the absolute family rights of the child, the
acknowledgment of the natural child is, among illegitimate ones, that which unites him to the family
of the father or the mother who recognized him, and affords him a participation in the rights of the
family, relatively advantageous according to whether they are alone or whether they concur with
other individuals of the family of his purely natural father or mother.
Thus, in order to consider the spirit of the Civil Code, nothing is more logical than to establish a
comparison between an action to claim the legitimacy, and one to enforce acknowledgment.
ART. 118. The action to claim its legitimacy may be brought by the child at any time of its
lifetime and shall be transmitted to its heirs, should it die during minority or in a state of
insanity. In such cases the heirs shall be allowed a period of five years in which to institute
the action.
The action already instituted by the child is transmitted by its death to the heirs, if it has not lapsed
before then.
ART. 137. The actions for the acknowledgment of natural children can be
instituted only during the life of the presumed parents, except in the following cases:
1. If the father or mother died during the maturity of the child, in which case the latter may
institute the action before the expiration of the first four years of its maturity.
2. If, after the death of the father or mother, some instrument, before unknown, should be
discovered in which the child is expressly acknowledged.
In this case the action must be instituted with the six months following the discovery of such
instrument.
On this supposition the first difference that results between one action and the other consists in that
the right of action for legitimacy lasts during the whole lifetime of the child, that is, it can always be
brought against the presumed parents or their heirs by the child itself, while the right of action for the
acknowledgment of a natural child does not last his whole lifetime, and, as a general rule, it can not
be instituted against the heirs of the presumed parents, inasmuch as it can be exercised only during
the life of the presumed parents.
With regard to the question at issue, that is, the transmission to the heirs of the presumed parents of
the obligation to admit the legitimate filiation, or to recognize the natural filiation, there exists the
most radical difference in that the former continues during the life of the child who claims to be
legitimate, and he may demand it either directly and primarily from the said presumed parents, or
indirectly and secondarily from the heirs of the latter; while the second does not endure for life; as a
general rule, it only lasts during the life of the presumed parents. Hence the other difference, derived
as a consequence, that an action for legitimacy is always brought against the heirs of the presumed
parents in case of the death of the latter, while the action for acknowledgment is not brought against
the heirs of such parents, with the exception of the two cases prescribed by article 137 transcribed
above.
So much for the passive transmission of the obligation to admit the legitimate filiation, or to
acknowledge the natural filiation.

As to the transmission to the heirs of the child of the latter's action to claim his legitimacy, or to
obtain the acknowledgment of his natural filiation, it is seen that the code grants it in the first case,
but not in the second. It contains provisions for the transmission of the right of action which, for the
purpose claiming his legitimacy inheres in the child, but it does not say a word with regard to the
transmission of the right to obtain the acknowledgment of the natural filiation.
Therefore, the respective corollary of each of the two above-cited articles is: (1) That the right of
action which devolves upon the child to claim his legitimacy under article 118, may be transmitted to
his heirs in certain cases designated in the said article; (2) That the right of action for the
acknowledgment of natural children to which article 137 refers, can never be transmitted, for the
reason that the code makes no mention of it in any case, not even as an exception.
It is most illogical and contrary to every rule of correct interpretation, that the right of action to secure
acknowledgment by the natural child should be presumed to be transmitted, independently, as a
rule, to his heirs, while the right of action to claim legitimacy from his predecessor is not expressly,
independently, or, as a general rule, conceded to the heirs of the legitimate child, but only relatively
and as an exception. Consequently, the pretension that the right of action on the part of the child to
obtain the acknowledgment of his natural filiation is transmitted to his descendants is altogether
unfounded. No legal provision exists to sustain such pretension, nor can an argument of
presumption be based on the lesser claim when there is no basis for the greater one, and when it is
only given as an exception in well-defined cases. It is placing the heirs of the natural child on a better
footing than the heirs of the legitimate one, when, as a matter of fact, the position of a natural child is
no better than, no even equal to, that of a legitimate child.
From the express and precise precepts of the code the following conclusions are derived:
The right of action that devolves upon the child to claim his legitimacy lasts during his whole life,
while the right to claim the acknowledgment of a natural child lasts only during the life of his
presumed parents.
Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during his whole life,
he may exercise it either against the presumed parents, or their heirs; while the right of action to
secure the acknowledgment of a natural child, since it does not last during his whole life, but
depends on that of the presumed parents, as a general rule can only be exercised against the latter.
Usually the right of action for legitimacy devolving upon the child is of a personal character and
pertains exclusively to him, only the child may exercise it at any time during his lifetime. As an
exception, and in three cases only, it may be transmitted to the heirs of the child, to wit, if he died
during his minority, or while insane, or after action had been already instituted.
An action for the acknowledgment of a natural child may, as an exception, be exercised against the
heirs of the presumed parents in two cases: first, in the event of the death of the latter during the
minority of the child, and second, upon the discovery of some instrument of express
acknowledgment of the child, executed by the father or mother, the existence of which was unknown
during the life of the latter.
But such action for the acknowledgment of a natural child can only be exercised by him. It can not
be transmitted to his descendants, or his ascendants.
In support of the foregoing the following authorities may be cited:

Sanchez Roman, in his Treatise of Civil Law, propounds the question as to whether said action
should be considered transmissive to the heirs or descendants of the natural child, whether he had
or had not exercised it up to the time of his death, and decides it as follows:
There is an entire absence of legal provisions, and at most, it might be deemed admissible
as a solution, that the right of action to claim the acknowledgment of a natural child is
transmitted by the analogy to his heirs on the same conditions and terms that it is transmitted
to the descendants of a legitimate child, to claim his legitimacy, under article 118, but nothing
more; because on this point nothing warrants placing the heirs of a natural child on a better
footing than those of the legitimate child, and even to compare themwould not fail to be a
strained and questionable matter, and one of great difficulty for decision by the courts, for the
simple reason that for the heirs of the legitimate child, the said article 118 exists, while for
those of the natural child, as we have said, there is no provision in the code authorizing the
same, although on the other hand there is none that prohibits it. (Vol. V.)
Diaz Guijarro and Martinez Ruiz in their work on "The Civil Code as construed by the supreme court
of Spain," commenting upon article 137, say:
Article 118, taking into account the privileges due to the legitimacy of children, grants them
the right to claim said legitimacy during their lifetime, and even authorizes the transmission
of said right for the space of five years to the heirs thereof, if the child die during his minority
or in a state of insanity. But as article 137 is based on the consideration that in the case of a
natural child, ties are less strong and sacred in the eyes of the law, it does not fix such a long
and indefinite period for the exercise of the action; it limits it to the life of the parents,
excepting in the two cases mentioned in said article; and it does not allow, as does article
118, the action to pass on to the heirs, inasmuch as, although it does not prohibit it, and for
that reason it might be deemed on general principles of law to consent to it, such a
supposition is inadmissible for the reason that a comparison of both articles shows that the
silence of the law in the latter case is not, nor it can be, an omission, but a deliberate intent
to establish a wide difference between the advantages granted to a legitimate child and to a
natural one.
(Ibid., Vol. II, 171.)
Navarro Amandi (Cuestionario del Cdigo Civil) raises the question: "Can the heirs of a natural child
claim the acknowledgment in those cases wherein the father or mother are under obligation to
acknowledge"? And says:
Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that the right of
investigation forms a part of the estate of the child, and along with his patrimony is
transmitted to his heirs. The affirmation is altogether too categorical to be admissible. If it
were correct the same thing would happen as when the legitimacy of a child is claimed, and
as already seen, the right of action to demand the legitimacy is not transmitted to the heirs in
every case and as an absolute right, but under certain limitations and circumstances. Now,
were we to admit the doctrine of the court of Rennes, the result would be that the claim for
natural filiation would be more favored than one for legitimate filiation. This would be absurd,
because it can not be conceived that the legislator should have granted a right of action to
the heirs of the natural child, which is only granted under great limitations and in very few
cases to those of a legitimate one. Some persons insist that the same rules that govern
legitimate filiation apply by analogy to natural child are entitled to claim it in the cases
prescribed by the article 118. The majority, however, are inclined to consider the right to

claim acknowledgment as a personal right, and consequently, not transmissive to the heirs.
Really there are no legal grounds to warrant the transmission. (Vol. 2, 229.)
In a decision like the present one it is impossible to bring forward the argument of analogy for the
purpose of considering that the heirs of the natural child are entitled to the right of action which
article 118 concedes to the heirs of the legitimate child. The existence of a provision for the one case
and the absence thereof for the other is a conclusive argument that inclusio unius est exclusio
alterius, and it can not be understood that the provision of law should be the same when the same
reason does not hold in the one case as in the other.
The theory of law of transmission is also entirely inapplicable in this case. This theory, which in the
Roman Law expressed the general rule than an heir who did not accept an inheritance during his
lifetime was incapacitated from transmitting it to his own heirs, included at the same time the idea
that if the inheritance was not transmitted because the heir did not possess it, there were, however,
certain things which the heir held and could transmit. Such was the law and the right to accept the
inheritance, for the existing reason that all rights, both real and personal, shall pass to the heir; quia
haeres representat defunctum in omnibus et per omnia. According to the article 659 of the Civil
Code, "the inheritance includes all the property, rights, and obligations of a person, which are not
extinguished by his death." If the mother is the heir of her natural child, and the latter, among other
rights during his lifetime was entitled to exercise an action of his acknowledgment against his father,
during the life of the latter, if after his death in some of the excepting cases of article 137, such right,
which is a portion of his inheritance, is transmitted to his mother as being his heir, and it was so
understood by the court of Rennes when it considered the right in question, not as a personal and
exclusive right of the child which is extinguished by his death, but a any other right which might be
transmitted after his death. This right of supposed transmission is even less tenable than that sought
to be sustained by the argument of analogy.
The right of action pertaining to the child to claim his legitimacy is in all respects superior to that of
the child who claims acknowledgment as a natural child. And it is evident that the right of action to
claim his legitimacy is not one of those rights which the legitimate child may transmit by inheritance
to his heirs; it forms no part of the component rights of his inheritance. If it were so, there would have
been no necessity to establish its transmissibility to heirs as an exception in the terms and conditions
of article 118 of the code. So that, in order that it may constitute a portion of the child's inheritance, it
is necessary that the conditions and the terms contained in article 118 shall be present, since without
them, the right that the child held during his lifetime, being personal and exclusive in principle, and
therefore, as a general rule not susceptible of transmission, would and should have been
extinguished by his death. Therefore, where no express provision like that of article 118 exists, the
right of action for the acknowledgment of a natural child is, in principle and without exception,
extinguished by his death, and can not be transmitted as a portion of the inheritance of the deceased
child.
On the other hand, if said right of action formed a part of the child's inheritance, it would be
necessary to establish the doctrine that the right to claim such an acknowledgment from the
presumed natural father and from his heirs is an absolute right of the heirs of the child, not limited by
certain circumstances as in the case of the heirs of a natural child with a legitimate one to place the
heirs of a natural child and his inheritance on a better footing than those of a legitimate child would
not only be unreasonable, but, as stated in one of the above citations, most absurd and illegal in the
present state of the law and in accordance with the general principles thereof.
For all of the foregoing reasons we hereby reverse the judgment appealed from in all its parts,
without any special ruling as to the costs of this instance.

Mapa, Johnson, Carson, and Willard, JJ., concur.

Separate Opinions
TORRES, J., dissenting:
The questions arising from the facts and points of law discussed in this litigation between the parties
thereto, decided in the judgment appealed from, and set up and discussed in this instance by the
said parties in their respective briefs, are subordinate in the first place to the main point, submitted
among others to the decision of this court, that is, whether the right of action brought to demand from
the natural father, or from his heirs, the acknowledgment of the natural child which the former left at
his death was, by operation of the law, transmitted to the natural mother by reason of the death of
the said child acknowledged by her.
The second error assigned by the appellant in his brief refers exclusively to this important point of
law.
Article 846 of the Civil Code prescribes:
The right of succession which the law grants natural children extends reciprocally in similar
cases to the natural father or mother.
Article 944 reads:
If the acknowledged natural or legitimized child should die without issue, either legitimate or
acknowledged by it, the father or mother who acknowledged it shall succeed to its entire
estate, and if both acknowledged it and are alive, they shall inherit from it share and share
alike.
It can not be inferred from the above legal provisions that from the right succession which the law
grants the natural father or mother upon the death of their natural child, the right of heirs of any of
the said parents to claim the acknowledgment of the natural child is excluded. No article is to be
found in the Civil Code that expressly provides for such exclusion or elimination of the right of the
heirs of the deceased child to claim his acknowledgment.
If under article 659 of said code, the inheritance includes all the property, rights, and obligations of a
person, which are not extinguished by his death, it is unquestionable that among such rights stands
that which the natural child had, while alive, to claim his acknowledgment as such from his natural
father, or from the heirs of the latter. There is no reason or legal provision whatever to prevent the
consideration that the right to claim acknowledgment of the filiation of a deceased child from his
natural father, or from the heirs of the latter, is included in the hereditary succession of the deceased
child in favor of his natural mother.
It is to be regretted that such an eminent writer as Manresa is silent on this special point, or that he
is not very explicit in his comments on article 137 of the Civil Code. Among the various noted writers
on law, Professor Sanchez Roman is the only one who has given his opinion in a categorical manner
as to whether or not the right of action for the acknowledgment of a deceased natural child shall be
considered transmissive to his heirs, as may bee seen from the following:

In order to complete the explanation of this article 137 of the Civil Code, three points must be
decided: (1) Against whom shall an action for acknowledgment be brought under the cases
and terms to which the two exceptions indicate in paragraphs 1 and 2 of article 137 refer? (2)
Who is to represent the minor in bringing this action when neither the father nor the mother
has acknowledged him? (3) Should this right of action be considered as transmitted to the
heirs or descendants of the natural child whether or not it was exercised at the time of his
death?
With respect to the third, there is an entire absence of legal provisions, and at most, it might
be deemed admissible as a solution, that the right of action to claim acknowledgment of a
natural child is transmitted by analogy to his heirs on the same conditions and terms that it is
transmitted to the descendants of the legitimate child, to claim his legitimacy, under article
118, but no more; because on his point nothing warrants placing the heirs of a natural child
on a better footing than those of the legitimate child, and even to compare them would not
fail to be strained and questionable matter, and one of great difficulty for decision by the
courts, for the simple reason that for the heirs of the legitimate child the said article 118
exists, while for those of the natural child, as we have said, there is no provision in the code
authorizing the same, although on the other hand there is none that prohibits it.
Certainly there is no article in the Civil Code, or any special law that bars the transmission to the
heirs of a natural child, particularly to his natural mother, of the right of action to claim the
acknowledgment of said natural child from the heirs of his deceased natural father.
According to the above-cited article 944 of the Civil Code, the only persons designated to succeed to
the intestate estate of a natural child who died during minority or without issue are its natural father
or mother who acknowledged it; consequently if by operation of the law his parents are his legal
successors or heirs, it is unquestionable that by reason of the child's death the property, rights, and
obligations of the deceased minor were, as a matter of fact, transmitted to them, among which was
the right to demand the acknowledgment of the said deceased natural child from the heirs of the
deceased natural father or mother, respectively, on account of having enjoyed uninterruptedly the
status of natural child of the said deceased parents. (Arts. 135 and 136, Civil Code.)
At the death of the children, Teopista in 1902, and Jose in 1903, during their minority, and after the
death of their natural father which took place in 1899, the natural mother of the said minors, Paula
Conde, succeeded them in all of their property and rights, among which must necessarily appear
and be included the right of action to claim the acknowledgment of said two children from the heirs of
Icasiano Abaya, their deceased natural father. There is no legal provision or precept whatever
excluding such right from those which, by operation of the law, were transmitted to the mother, Paula
Conde, or expressly declaring that the said right to claim such acknowledgment is extinguished by
the death of the natural children.
It is true that, as a general rule, an action for acknowledgment can not be brought by a surviving
natural child after the death of his parents, except in the event he was a minor at the time of the
death of either of his parents, as was the case with minors Teopista and Jose Conde, who, if living,
would unquestionably be entitled to institute an action for acknowledgment against the presumed
heirs of their natural father; and as there is no law that provides that said right is extinguished by the
death of the same, and that the mother did not inherit it from the said minors, it is also
unquestionable that Paula Conde, the natural mother and successor to the rights of said minors, is
entitled to exercise the corresponding action for acknowledgment.
If the natural mother had no right of action against the heirs of the natural father, for the
acknowledgment for her natural child, the unlimited and unconditional reciprocity established by the

article 846 of the code would neither be true nor correct. It should be noticed that the relation of
paternity and that of filiation between the above-mentioned father and children are both natural in
character; therefore, the intestate succession of the said children of Paula Conde is governed
exclusively by articles 944 and 945 of the said code.
It is true that nothing is provided by article 137 with reference to the transmission to the natural
mother of the right to claim the acknowledgment of her natural children, but, as Sanchez Roman
says, it does not expressly prohibit it; and as opposed to the silence of the said article, we find the
provisions of articles 846 and 944 of the Civil Code, which expressly recognize the right of the
natural mother to succeed her natural child, a right which is transmitted to her by operation of law
from the moment that the child ceases to exist.
The question herein does not bear upon the right of a child to claim his legitimacy, as provided in
article 118 of the code, nor is it claimed that the rights of natural children and their mother are equal
to those of legitimate ones, even by analogy.
The foundations of this opinion are based solely on the provisions of the above-mentioned articles of
the code, and I consider that they are sustainable so long as it is not positively proven that the so
often-mentioned right of action for acknowledgment is extinguished by the death of the minor natural
child, and is not transmitted to the natural mother by express declaration or prohibition of the law,
together with the property and other rights in the intestate succession.
In view of the considerations above set forth it is my opinion that it should be held: that Paula Conde,
as the natural mother and sole heir of her children Teopista and Jose, was and is entitled to the right
to institute proceedings to obtain the acknowledgment of the latter as natural children of the late
Icasiano Abaya, from Roman Abaya, as heir and administrator of the estate of the said Icasiano
Abaya; and that the said Teopista and Jose who died during their minority, three years after the
death of their father, should be considered and acknowledged as such natural children of the latter,
for the reason that while living they uninterruptedly enjoyed the status of his natural children. The
judgment appealed from should be affirmed without any special ruling as to costs.
With regard to the declaration that the property of the late Icasiano, which Paula Conde might take,
are of a reservable character, together with the other matter contained in the third error assigned by
the appellant to the said judgment, the writer withholds his opinion until such time as the question
may be raised between the parties in proper form.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40789 February 27, 1987
INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES, petitioner,
vs.
FORTUNATO ROSALES, MAGNA ROSALES ACEBES, MACIKEQUEROX ROSALES and
ANTONIO ROSALES,respondents.
Jose B. Echaves for petitioner.

Jose A. Binghay and Paul G. Gorres for respondents.

GANCAYCO, J.:
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 latter, her
mother-in-law.
It appears from the record of the case that on February 26, 1971, Mrs. Petra V. Rosales, a resident
of Cebu City, died intestate. She was survived by her husband Fortunate T. Rosales and their two (2)
children Magna Rosales Acebes and Antonio Rosales. Another child, Carterio Rosales, predeceased
her, leaving behind a child, Macikequerox Rosales, and his widow Irenea C. Rosales, the herein
petitioner. The estate of the dismissed has an estimated gross value of about Thirty Thousand Pesos
(P30,000.00).
On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the settlement of the estate
of the deceased in the Court of First Instance of Cebu. The case was docketed as Special
Proceedings No. 3204-R. Thereafter, the trial court appointed Magna Rosales Acebes administratrix
of the said estate.
In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972
declaring the following in individuals the legal heirs of the deceased and prescribing their respective
share of the estate
Fortunata T. Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4;
Macikequerox Rosales, 1/4; and Antonio Rosales son, 1/4.
This declaration was reiterated by the trial court in its Order I dated February 4, 1975.
These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her
capacity as the surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she
is a compulsory heir of her mother-in-law together with her son, Macikequerox Rosales.
Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders. The trial court
denied her plea. Hence this petition.
In sum, the petitioner poses two (2) questions for Our resolution petition. First is a widow
(surviving spouse) an intestate heir of her mother-in-law? Second are the Orders of the trial court
which excluded the widow from getting a share of the estate in question final as against the said
widow?
Our answer to the first question is in the negative.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right,
and those who inherit by the right of representation. 1 Restated, an intestate heir can only inherit either
by his own right, as in the order of intestate succession provided for in the Civil Code, 2 or by the right of
representation provided for in Article 981 of the same law. The relevant provisions of the Civil Code are:
Art. 980. The children of the deceased shall always inherit from him in their own right,
dividing the inheritance in equal shares.
Art. 981. Should children of the deceased and descendants of other children who are
dead, survive, the former shall inherit in their own right, and the latter by right of
representation.
Art. 982. The grandchildren and other descendants shag inherit by right of
representation, and if any one of them should have died, leaving several heirs, the
portion pertaining to him shall be divided among the latter in equal portions.
Art. 999. When the widow or widower survives with legitimate children or their
descendants and illegitimate children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the same share as that of a
legitimate child.
There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate
heir of her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from
her mother-in- law either by her own right or by the right of representation. The provisions of the
Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with
meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The
conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the
deceased all the more confirms Our observation. If the legislature intended to make the surviving
spouse an intestate heir of the parent-in-law, it would have so provided in the Code.
Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the
Civil Code which provides that:
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287;

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.
The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the surviving
spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law.
Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law.
We had occasion to make this observation in Lachenal v. Salas, 4 to Wit:
We hold that the title to the fishing boat should be determined in Civil Case No. 3597
(not in the intestate proceeding) because it affects the lessee thereof, Lope L.
Leoncio, 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. ...
(Emphasis supplied).
By the same token, the provision of Article 999 of the Civil Code aforecited does not support
petitioner's claim. A careful examination of the said Article confirms that the estate contemplated
therein is the estate of the deceased spouse. The estate which is the subject matter of the intestate
estate proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the
petitioner. It is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the
inheritance by the right of representation as provided by Article 981 of the Code.
The essence and nature of the right of representation is explained by Articles 970 and 971 of the
Civil Code, viz
Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented, and
acquires the rights which the latter would have if he were living or if he could have
inherited.
Art. 971. The representative is called to the succession by the law and not by the
person represented. The representative does not succeed the person
represented but the one whom the person represented would have succeeded.
(Emphasis supplied.)
Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of
his blood relationship. He does not succeed his father, Carterio Rosales (the person represented)
who predeceased his grandmother, Petra Rosales, but the latter whom his father would have
succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood
with her mother-in-law.

Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an
inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may,
said right of her husband was extinguished by his death that is why it is their son Macikequerox
Rosales who succeeded from Petra Rosales by right of representation. He did not succeed from his
deceased father, Carterio Rosales.
On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon
the second question posed by the petitioner.
Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an intestate
heir of his or her parent-in-law.
WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with costs
against the petitioner. Let this case be remanded to the trial-court for further proceedings.
SO ORDERED.
Yap (Chairman), Narvasa, Melencio-Herrera, Cruz, Feliciano and Sarmiento, JJ., concur.

Footnotes
1 III Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines
461, 1979 ed.
2 Articles 978 to 1014.
3 Art. 887 (3), Civil Code.
4 71 SCRA 262, 265 L-42257, June 14, 1976.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47799

May 21, 1943

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamis and Capistrano for petitioners.
Gullas, Leuterio, Tanner and Laput for respondents.

MORAN, J.:
This is a case where the testator in his will left all his property by universal title to the children by his
second marriage, the herein respondents, with preterition of the children by his first marriage, the
herein petitioner. This Court annulled the institution of heirs and declared a total intestacy.
A motion for reconsideration has been filed by the respondents on the ground (1) that there is no
preterition as to the children of the first marriage who have received their shares in the property left
by the testator, and (2) that, even assuming that there has been a preterition, the effect would not be
the annulment of the institution of heirs but simply the reduction of the bequest made to them.
1. The findings of the trial court and those of the Court of Appeals are contrary to respondents' first
contention. The children of the first marriage are Eleuterio, Agripino, Agapita, Getulia (who died a
little less than eight years before the death of her father Agripino Neri, leaving seven children),
Rosario and Celerina.
As to Eleuterio, the trial court said that "it is not, therefore, clear that Eleuterio has received his share
out of the properties left by his father." It is true that Eleuterio appears to have received, as a
donation from his father, parcel of land No. 4, but the question of whether there has been a donation
or not is apparently left for decision in an independent action, and to that effect Ignacia Akutin has
been appointed special administratrix for the purpose of instituting such action.
With respect to Agripino and Agapita, the parcels of land which they have occupied, according to the
trial Court, "are a part of public land which had been occupied by Agripino Neri Chaves, and,
therefore, were not a part of the estate of the latter."
Concerning Getulia who died about eight years before the death of her father Agripino Neri, the trial
Court found that "neither Getulia nor her heirs received any share of the properties."
And with respect to Rosario and Celerina, the trial Court said that "it does not appear clear,
therefore, that Celerina and Rosario received their shares in the estate left by their father Agripino
Neri Chaves."
This is in connection with the property, real or personal, left by the deceased. As to money
advances, the trial Court found:
It is contented, furthermore, that the children of Agripino Neri Chaves in his first marriage
received money from their father. It appears that Nemesio Chaves is indebted in the amount
of P1,000; Agripino, in the amount of P500 as appears in Exhibits 14 and 15; Getulia, in the
amount of P155 as appears in Exhibit 16, 17, and 18; Celerina in the amount of P120 as
appears in Exhibit 19, 19-A and 19-B.
From these findings of the trial Court it is clear that Agapita, Rosario and the children of Getulia had
received from the testator no property whatsoever, personal, real or in cash.
But clause 8 of the will is invoked wherein the testator made the statement that the children by his
first marriage had already received their shares in his property excluding what he had given them as
aid during their financial troubles and the money they had borrowed from him which he condoned in
the will. Since, however, this is an issue of fact tried by the Court of First Instance, and we are
reviewing the decision of the Court of Appeals upon a question of law regarding that issue, we can
rely only upon the findings of fact made by the latter Court, which are as follows:

Since all the parcels that corresponded to Agripino Neri y Chaves are now in the
administrator's possession, as appears in the inventory filed in court, it is clear that the
property of the deceased has remained intact and that no portion thereof has been given to
the children of the first marriage.
xxx

xxx

xxx

It is stated by the court and practically admitted by the appellants that a child of the first
marriage named Getulia, or her heirs after her death, did not receive any share of the
property of her father.
It is true that in the decision of the Court of Appeals there is also the following paragraphs:
As regards that large parcel of land adjoining parcel No. 1, it is contended that after the court
had denied the registration thereof. Agripino Neri y Chaves abandoned the said land and that
later on some of the children of the first marriage possessed it, thereby acquiring title and
interest therein by virtue of occupation and not through inheritance. It is not true that this
parcel containing 182.6373 hectares is now assessed in the names of some of the children
of the first marriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g, the owners of
the property are Agapita Neri de Chaves y Hermanos. Apparently, the said land is still
claimed to be the property not only of the children of the first marriage but also of those of
the second marriage.
This paragraph is but a corroboration of the finding made by the Court of Appeals that no property
has ever been advanced by the testator to the children by his first marriage. The large parcel of land
adjoining parcel No. 1 was alleged by the children of the second marriage to have been advanced by
the testator to the children by his first marriage; but the Court of Appeals belied this claim. "It is not
true," says that Court, "that this parcel containing 182.6373 hectares is now assessed in the names
of some of the children of the first marriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g,
the owners of the property are Agapita Neri de Chaves y Hermanos," that is, the children of both
marriages. And the Court of Appeals added that "apparently, the said land is still claimed to be the
property not only of the children of the first marriage but also of those of the second marriage," which
is another way of stating that the property could not have been advanced by the testator to the
children by the first marriage would not lay a claim on it.
We conclude, therefore, that according to the findings of fact made by the Court of Appeals, the
testator left all his property by universal title to the children by his second marriage, and that without
expressly disinheriting the children by his first marriage, he left all his property by universal title to
the children by his second marriage, he left nothing to them or, at least, some of them. This is,
accordingly, a case of preterition governed by article 814 of the Civil Code, which provides that the
institution of heirs shall be annulled and intestate succession should be declared open.
2. Upon the second question propounded in the motion for reconsideration, respondents seem to
agree that article 814 of the Civil Code is the law applicable but, in their discussion as to the effect of
preterition, they confuse article 814 with articles 817 and 851 and other articles of the Civil Code.
These three articles read:
ART. 814. The preterition of one or of all of the forced heirs in the direct line, whether living at
the execution of the will or born after the death of the testator, shall annul the institution of
heirs; but the legacies and betterments shall be valid in so far as they are not inofficious.

The preterition of the widower or widow does not annul the institution; but the person omitted
shall retain all the rights granted to him by articles 834, 835, 836, and 837 of this Code.
ART. 817. Testamentary dispositions which diminish the legitimate of the forced heirs shall
be reduced on petition of the same in so far as they are inofficious or excessive.
ART. 851. Disinheritance made without a statement of the cause, or for a cause the truth of
which, if contested, is not shown, or which is not one of those stated in the four following
articles, shall annul the institution of heirs in so far as it is prejudicial to the disinherited
person; but the legacies, betterments, and other testamentary dispositions shall be valid in
so far as they are not prejudicial to said legitime.
The following example will make the question clearer: The testator has two legitimate sons, A and B,
and in his will he leaves all his property to A, with total preterition of B. Upon these facts, shall we
annul entirely the institution of heir in favor of A and declare a total intestacy, or shall we merely
refuse the bequest left A, giving him two-thirds, that is one third of free disposal and one-third of
betterments, plus one-half of the other third as strict legitime, and awarding B only the remaining
one-half of the strict legitime? If we do the first, we apply article 814; if the second, we apply articles
851 or 817. But article 851 applies only in cases of unfounded disinheritance, and all are agreed that
the present case is not one of disinheritance but of preterition. Article 817 is merely a general rule
inapplicable to specific cases provided by law, such as that of preterition or disinheritance. The
meaning of articles 814 and 851, their difference and philosophy, and their relation to article 817, are
lucidly explained by Manresa in the following manner:
Cuando la legitima no es usufructuria, como ocurre en los demas casos, la pretericion no
puede menos de alterar esencialmente la institucion de heredero. Esta ha de anularse, pero
en todo o en parte, esto es, solo en cuanto perjudique el derecho del legitimario preterido?
El articulo 814 opta por la primer solucion, ya que hemos de atenermos estrictmente al testo
de la ley; mientras que el articulo 851, en casos anlogos, opta por la segunda.
En efecto; la desheredacion sin justa causa no produce el efecto de desheredar. El heredero
conserva derecho a su legitima, pero nada mas que a su legitima. Los legados, las
merjoras, si las hay, y aun la institucion de heredero, son validas en cuanto no perjudiquen
al heredero forzoso.
La diferencia se notara perfectamente con un ejemplo. Un solteron, sin decendientes ni
ascendientes legitimos, hace testamento instituyendo por heredero a un pariente lejano.
Despues reconoce un hijo natural, o se casa y tiene descendencia, y muere sin modificar su
disposicion testamentaria. A su muerte, el hijo natural, o los legitimos, fundadose en la
nulidad total de la institucion, con arreglo al articulo 814, piden toda la herencia. En el caso
del articulo 851 solo podrian podrian pedir su legitima. Preterdos, adquieren derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, segun el caso.
En el fondo la cuestion es indentica. El testador puede siempre disponer a su arbitrio de la
parte libre. El legitimario, contra la voluntad expresa del testdor, solo tiene derecho a su
legitima. Preterido o desheredado sin justa causa la legitima. Preterido o desheredado sin
justa causa la legitma es suya. Desheredado o preterido, la porcion libre no le corresponde,
cuando el testador la asigna a otro. Logicamente no cabe que el legitmario, en caso de
pretericion, reciba todos los bienes cuando el testador haya dispuesto de ellos a titulo
de herencia, y no cuando haya dispuesto del tercio lebre a titulo de legado.

Cual es la razon de esta differencia? En la generalidad de los casos puede fundarse el

precepto en la presunta voluntad del testador. Este, al desheredar, revela que existe alguna
razon a motivo que le impulsa a obrar asi; podra no ser bastante para privar al heredero de
su legitima, pero siempre ha de estimarse sufficiente para privarle del resto de la herencia,
pues sobre esta no puede pretender ningun derecho el desheredad. El heredero preterido
no ha sido privado expresamente de nada; el testador, en los casos normales, obra si por
descuido o por error. Hemos visto un testamento en el que no se institula heredera a una
hija monja, por creer la testadora que no podia heredar. En otros caos se ignora la
existencia de un descendiente o de un ascendiente. Cuando el preterido es una persona
que ha nacido despues de muerto el testador o despues de hecho el testamento, la razon es
aun mas clara; la omision ha de presumirse involuntaria; el testador debe suponerse que
hubiera instituido heredero a esa persona si hubiera existido al otorgarse el testamento, y no
solo en cuanto a la legitima, sino en toda la herencia, caso de no haber otros herederos
forzosos, y en iguales terminos que los demas herederos no mejorados de un mode
expreso.
La opinion contraria puede tambien defederse, suponiendo que la ley anula el titulo de
heredero, mas no en absoluto la participacion en el caudal; que asi como al exceptuar la
mejora se refiere a todo el tercio o a la parte de el que haya distribuido el causante, al
exceptuar los legados se refierse a la parte libre de que haya dispuesto el mismo testador,
considerando como un simple legatario de esa porcion a la persona a quien el testador
designo como heredero. Abonaria esta solucion el articulo 817, al declarar que las
disposiciones testamentaria que menguan la legitima de los herederos forzosos han de
reducirse en cuanto fueren inoficiosas, pues amparado en este articulo el heredero
voluntario, puede pretender que la disposicion a su favor sea respetada en cuato no
perjudique a las legitimas.
La jurisprudencia no ha resuelto de frente esta cuestion, porque no se le ha presentado en
los terminos propuestos; pero ha demonstrado su criterio.
Hemos citado las Resoluciones de la Direccion de 30 de octubre de 1896 y de 20 de mayo
de 1893. En la primera se decide con valentia, con arreglo al texto expreso del articulo 814;
la institucion de heredero se anula en absoluto, y se abre para toda la herencia la succesion
intestada. En la segunda se rehuye la cuestion, fundandose en circunstancias secundarias.
En el articulo siguiente examinaremos la sentencia de 16 de enero de 1895.
La interpretacion que rectamente se deprende del art 814, es la de que solo valen, y eso en
cuanto no sean inoficiosas, las disposiciones hechas a titulo de legado a mejora. En cuanto
a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo, o en
parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa que se
anulara a institucion de heredero en cuanto perjudique a la legitima del desheredado. Debe,
pues, entenderse que la anulacion es completa o total, y que este articulo, como especial en
el caso que le motiva, rige con preferencia al 817. (6 Manresa, 3.a ed., pags. 351-353.) (Emphasis
supplied).

The following opinion of Sanchez Roman is to the same effect and dispels all possible doubt on the
matter:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion entestada, total
o parcial. Sera total, cuando el testador que comete la pretericion, hubiere dispuesto de
todos los bienes por titulo universal de herencia en favor de los hrederos instituidos, cuya

institucion se anula, porque asi lo exige la generalidad del precepto legal del articulo 814, al
determinar, como efecto de la pretericion, el de que "anularia la institucion de heredero".
Cierto es que la preericion esta intorducida, como remedio juridico, por sus efectos, en
nombre y para garantia de la intergridad de la legitima de los herederos forzosos y como
consecuencia del precepto del 813, de que "el testador no podra privar a los herederos de
su legitima, sino en los casos expresamente determinados por la ley", que son los de
desheredacion con justa causa.
Cierto es, tambien, que en la desheredacion es muy otro el criterio del Codigo y que su
formula legal, en cuanto a sus efectos, es de alcance mas limitado, puesto que, conforme al
articulo 851, la desheredacion hecha sin condiciones de validez, "anulara la institucion de
heredero", lo mismo que la pretericion, pero solo "en cuanto perjudique la desheredado de
modo ilegal e ineficaz; salvedad o limitacion de los efectos de nulidad de la institucion de los
efectos de nulidad de la institucion hecha en el testmento, que no existe, segun se ha visto
en el 814, por el que se declara, en forma general e indistinta, que anulara la institucion de
heredero sin ninguna atencuacion respecto de que perjudique o no, total o parcialmente, la
cuantia de la legitima del heredero forzoso en linea recta, preterido.
El resultado de ambos criterios y formulas legales, manifestamente distintas, tiene que ser
muy diverso. En el caso de la pretericion, propiamente tal o total pues si fuera parcial y se
la dejara algo al heredero forzoso por cualquier titulo, aunque see algo no fuere suficiente al
pago de sus derechos de legitima, no seria caso de pretericion, regulado por el articulo 814,
sino de complemento, regido por el 815 y la institucion no se anularia sino que se
modificaria o disminuiria en lo necesario para dicho complente o de institucion de
heredero en toda la herencia, al anularse la institucion, por efecto de la preterido o
preteridos, respecto de toda la herencia, tambien; mientras qeu en el caso de
desheredacion y de institucion en la totalidad de la herencia, tambien; mientras que en el
caso de desheredacion y de institucion en la totalidad de la herencia a favor de otra
persona, solo se anulara en parte precisa pra no perjudicar la legitima del deshersado, que
aun siendo en este caso la lata, si no hubo mejoras, porque no se establecieron o porque
los intituidos eran herederos voluntarios, dejaria subsistente la institucion en la poarte
correspoondiente al tercio de libre disposicion. Asi es que los preteridos, en el supuesto
indicado, suceden abintestato en todo, en concurrencia conlos demas herederos forzosos o
llamados pro la ley alabintestato; los desheredados, unicamente en dos tercios o en uno o
en uno tan solo, en la hipotesis de haberse ordernado mejoras.
En cambio, ni por la desheredacion ni por la pretericion pierde su fuerza el testamento, en
cuanto a dicho tercio libre, is se trata dedescendientes; o la mitad, si se trata de
ascendientes, ya desheredados, ya preteridos, proque, ni por el uno ni por el otro medio, se
anula mas que la institucion de heredero, en general, y totalmente por la pretericion, y solo
en cuanto perjudique a la legitima del desheredado por la desheredacion; pero subsistiendo,
en ambos casos, todas acquellas otras disposiciones que no se refeiren a la institucion de
heredero y se hallen dentro del limite cuantitativo del tercio o mitad de libre disposicion,
segun que se trate de descendientes o ascendientes, preteridos o desheredados.
La invocacion del articulo 817 para modificar estos efectos de la pretericion, procurando
limitar la anulacion de la institucion de herederos solo en cuanto perjudique a la legitima,
fundadose en que dicho articulo establece que "las disposiciones testamentarias que
menguan la legitma de los herederos forzosos se reduciran, a peticion de estos, en lo que
fueren inoficiosas o excesivas," no es aceptable ni puede variar acquellos resultados,
porque es un precepto de caracter general en toda otra clase de dsiposiciones
testamentarias que produzcan el efecto de menguar la legitima, que no puede anteponerse,

en su aplicacion, a las de indole especial para sealar los efectos de la pretericion o de la

desheredacion, regulados privativa y respectivamente por los articulos 814 y 851.
No obstante la pretericion, "valdran las mandas y legados en cuanto no sean inoficiosas." El
texto es terminante y no necesita mayor explicacion, despues de lo dicho, que su propia
letra, a no ser para observar que constituye una confimacion indudable de los efectos de la
pretericion, en cuanto alcanzansolo, pero totalmente, a la anulacion de la institucion de
heredero, pero no a la de las mandas y mejoras en cuanto no sean preteridos; calficativo de
tales, como sinonimo legal de excessivas, que en otros articulos, como el 817, establece la
ley. (6 Sanchez Roman, Volumen 2.o pags. 1140-1141.)
These comments should be read with care if we are to avoid misunderstanding. Manresa, for
instance, starts expounding the meaning of the law with an illustration. He says that in case of
preterition (article 814). the nullity of the institution of heirs is total, whereas in case of disinheritance
(article 851), the nullity is partial, that is, in so far as the institution affects the legitime of the
disinherited heirs. "Preteridos, adquieren derecho atodo;desheredados, solo les corresponde un
tercio o dos tercios, segun el caso." He then proceeds to comment upon the wisdom of the
distinction made by law, giving two views thereon. He first lays the view contrary to the distinction
made by law, then the arguments in support of the distinction, and lastly a possible defense against
said arguments. And after stating that the Spanish jurisprudence has not as yet decided squarely the
question, with an allusion] to two resolutions of the Spanish Administrative Direction, one in favor of
article 814 and another evasive, he concludes that the construction which may rightly be given to
article 814 is that in case of preterition, the institution of heirs is null in toto whereas in case of
disinheritance the nullity is limited to that portion of the legitime of which the disinherited heirs have
been illegally deprived. He further makes it clear that in cases of preterition, the property bequeathed
by universal titled to the instituted heirs should not be merely reduced according to article 817, but
instead, intestate succession should be opened in connection therewith under article 814, the reason
being that article 814, "como especial en el caso que le motiva, rige con preferencia al 817."
Sanchez Roman is of the same opinion when he said: "La invocacion del articulo 817 para modificar
estos efectos de la pretecion, procurando limitar la anulacion de la institucion de heredero solo en
cuanto perjudque a la legitima, fundandose en que dicho articulo establece que "las disposiciones
testmentarias que menguan la legitima de los herederos forzosos se fueren inoficisosas o
excesivas," no es aceptable ni puede variar aquellos resultados, porque es un precepto de caracter
general en toda otra clase de disposiciones testmentarias que produzcan el efecto de menguar la
legitima, que no puede anteponerse, en su aplicacion, a las de indole especial para sealar los
efectos de la pretericon o de la desheredacion, regulados privativa y respectivamente por los
articulos 814 y 851.
Of course, the annulment of the institution of heirs in cases of preterition does not always carry with
it the ineffectiveness of the whole will. Neither Manresa nor Sanchez Roman nor this Court has ever
said so. If, aside from the institution of heirs, there are in the will provisions leaving to the heirs so
instituted or to other persons some specific properties in the form of legacies or mejoras, such
testamentary provisions shall be effective and the legacies and mejoras shall be respected in so far
as they are not inofficious or excessive, according to article 814. In the instant case, however, no
legacies or mejoras are provided in the will, the whole property of the deceased having been left by
universal title to the children of the second marriage. The effect, therefore, of annulling the institution
of heirs will be necessarily the opening of a total intestacy.
But the theory is advanced that the bequest made by universal titled in favor of the children by the
second marriage should be treated as legado and mejora and, accordingly, it must not be entirely
annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of articles
814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the

concept of legacies and betterments reducing the bequest accordingly, then the provisions of articles
814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and
will never have any application at all. And the remaining provisions contained in said article
concerning the reduction of inofficious legacies or betterments would be a surplusage because they
would be absorbed by article 817. Thus, instead of construing, we would be destroying integral
provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution
of heirs from legacies and betterments, and a general from a special provision. With reference to
article 814, which is the only provision material to the disposition of this case, it must be observed
that the institution of heirs is therein dealt with as a thing of separate and distinct from legacies or
betterment. And they are separate and distinct not only because they are distinctly and separately
treated in said article but because they are in themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy refers to specific property bequeathed by a
particular or special title. The first is also different from a betterment which should be made expressly
as such (article 828). The only instance of implied betterment recognized by law is where legacies
are made which cannot be included in the free portion (article 828). But again an institution of heirs
cannot be taken as a legacy.
It is clear, therefore, that article 814 refers to two different things which are the two different objects
of its two different provisions. One of these objects cannot be made to merge in the other without
mutilating the whole article with all its multifarious connections with a great number of provisions
spread throughout the Civil Code on the matter of succession. It should be borne in mind, further,
that although article 814 contains who different provisions, its special purpose is to establish a
specific rule concerning a specific testamentary provision, namely, the institution of heirs in a case of
preterition. Its other provision regarding the validity of legacies and betterments if not inofficious is a
mere reiteration of the general rule contained in other provisions (articles 815 and 817) and signifies
merely that it also applies in cases of preterition. As regards testamentary dispositions in general,
the general rule is that all "testamentary disposition which diminish the legitime of the forced heirs
shall be reduced on petition of the same in so far as they are inofficous or excessive" (article 817).
But this general rule does not apply to the specific instance of a testamentary disposition containing
an institution of heirs in a case of preterition, which is made the main and specific subject of article
814. In such instance, according to article 814, the testamentary disposition containing the institution
of heirs should be not only reduced but annulled in its entirety and all the forced heirs, including the
omitted ones, are entitled to inherit in accordance with the law of intestate succession. It is thus
evident that, if, in construing article 814, the institution of heirs therein dealt with is to be treated as
legacies or betterments, the special object of said article would be destroyed, its specific purpose
completely defeated, and in that wise the special rule therein established would be rendered
nugatory. And this is contrary to the most elementary rule of statutory construction. In construing
several provisions of a particular statute, such construction shall be adopted as will give effect to all,
and when general and particular provisions are inconsistent, the latter shall prevail over the former.
(Act No. 190, secs. 287 and 288.)
The question herein propounded has been squarely decided by the Supreme Court of Spain in a
case wherein a bequest by universal title was made with preterition of heirs and the theory was
advanced that the instituted heirs should be treated as legatarios. The Supreme Court of Spain said:
El articulo 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido
antes expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa,
porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no
se ha realizado, debiendo, por lo tanto, procederse sobre tal base o supuesto, y

consiguientemente, en un testmento donde fate la institucion, es obligado llamar a los

herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribuido todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de
quein testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpertacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, peo que no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la testamnetificaion,
pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay rason
para convertir este juico en regla de interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislator quiere establecer. (6 Sanchez Roman, Volumen 2.o, p.
1138.)
It is maintained that the word "heredero" under the Civil Code, is not synonymous with the term
"heir" under the Code of Civil Procedure, and that the "heir" under the latter Code is no longer
personally liable for the debts of the deceased as was the "heredero" under the Civil Code, should
his acceptance be pure and simple, and from all these the conclusion is drawn that the provisions of
article 814 of the Civil Code regarding the total nullity of the institution of heirs has become obsolete.
This conclusion is erroneous. It confuses form with substance. It must be observed, in this
connection, that in construing and applying a provision of the Civil Code, such meaning of its words
and phrases as has been intended by the framers thereof shall be adopted. If thus construed it is
inconsistent with the provisions of the Code of Civil Procedure, then it shall be deemed repealed;
otherwise it is in force. Repeals by implication are not favored by the courts and when there are two
acts upon the same subject, effect should be given to both if possible (Posadas vs. National City
Bank, 296 U. S., 497). The word "heir" as used in article 814 of the Civil Code may not have the
meaning that it has under the Code of Civil Procedure, but this in no wise can prevent a bequest
from being made by universal title as is in substance the subject-matter of article 814 of the Civil
Code. Again, it may also be true that heirs under the Code of Civil Procedure may receive that
bequest only after payment of debts left by the deceased and not before as under the Civil Code, but
this may have a bearing only upon the question as to when succession becomes effective and can in
no way destroy the fact that succession may still be by universal or special title. Since a bequest
may still be made by universal title and with preterition of forced heirs, its nullity as provided in article
814 still applies there being nothing inconsistent with it in the Code of Civil Procedure. What is
important and is the basis for its nullity is the nature and effect of the bequest and not its possible
name nor the moment of its effectiveness under the Code of Civil Procedure.
Furthermore, there were in the Code of Civil Procedure sections Nos. 755 and 756 which read:
SEC. 755. Share of child born after making will. When a child of a testator is born after the
making of a will, and no provision is therein made for him, such child shall have the same
share in the estate of the testator as if he had died intestate; and share of such child shall be
assigned to him as in cases of intestate estates, unless it is apparent from the will that it was
the intention of the testator that no provision should be made for such child.
SEC. 756. Share of child or issue of child omitted from will. When a testator omits to
provide in his will for any of his children, or for issue of a deceased child, and it appears that
such omission was made by mistake, or accident, such child, or the issue of such child, shall
have the same share in the estate of the testator as if he had died intestate, to be assigned
to him as in the case of intestate estates.

It is these provisions of the Code of Civil Procedure that have affected substantially articles 814 and
851 of the Civil Code, but they have been expressly repealed by Act No. 2141, section 1 of which
read as follows:
Sections seven hundred and fifty-five, seven hundred and fifty-six, seven hundred and fiftyseven, seven hundred and fifty-eight, and seven hundred and sixty of Act Numbered One
hundred and ninety, entitled `An Act providing a Code of Procedure in Civil Actions and
Special Proceedings in the Philippine Islands are hereby repealed and such provisions of the
Civil Code as may have been amended or repealed by said sections are hereby restored to
full force and effects. (Emphasis ours.)
Among the provisions of the Civil Code which are thus expressly restored to full force are
undoubtedly articles 814 and 851. There can be no possible doubt, therefore, that those two articles
are in force.
Article 1080 of the Civil Code that is also invoked deserves no consideration except for the
observation that it has no relevancy in the instant case.
Our attention is directed to the case of Escuin vs. Escuin (11 Phil., 332). We have never lost sight of
the ruling laid down in that case which has been reiterated in Eleazar vs. Eleazar (37 Off. Gaz., p.
1782). In the Escuin case, the deceased left all his property to his natural father (not a forced heir)
and his wife with total preterition of his father and wife. Without reconsidering the correctness of the
ruling laid down in these two cases, we will note that the doctrine stands on facts which are different
from the facts in the present case. There is certainly a difference between a case of preterition in
which the whole property is left to a mere friend and a case of preterition in which the whole property
is left to one or some forced heirs. If the testamentary disposition be annulled totally in the first case,
the effect would be a total deprivation of the friend of his share in the inheritance. And this is contrary
to the manifest intention of the testator. It may fairly be presumed that, under such circumstances,
the testator would at leave give his friend the portion of free disposal. In the second case, the total
nullity of the testamentary disposition would have the effect, not of depriving totally the instituted heir
of his share in the inheritance, but of placing him and the other forced heirs upon the basis of
equality. This is also in consonance with the presumptive intention of the testator. Preterition,
generally speaking, is due merely to mistake or inadvertence without which the testator may be
presumed to treat alike all his children.
And specially is this true in the instant case where the testator omitted the children by his first
marriage upon the erroneous belief that he had given them already more shares in his property than
those given to the children by his second marriage. It was, therefore, the thought of the testator that
the children by his first marriage should not receive less than the children by his second marriage,
and to that effect is the decision of this Court sought to be reconsidered. Motion for reconsideration
is hereby denied.
Yulo, C.J., I concur in the result.
Generoso, J., concurs.

Separate Opinions
OZAETA, J., concurring:

I concur in the majority opinion after mature reflection on the two points discussed in Justice
Bocobo's dissent.
Whether or not there was preterition of the testator's surviving children by his first marriage, may not
be entirely beyond dispute, because it is not altogether improbable that, before the testator made his
will, said children of his had received cash advances from him, as stated in clause 8 of the will. But,
to may mind. there can be no doubt that there was preterition of the testator's grandchildren by his
daughter Getulia, who died long before the testator made his will. These lineal descendants of the
testator, who are also forced heir of his, were completely ignored and omitted in the will. In clauses 7
and 8 of his will, the testator declared:
Seventh. I declare that the children by my first wife have no longer any participation in the
property described above, as they already received their corresponding shares in my
exclusive property to each of my children by my first wife must exceed what will correspond
to each of my children by my second wife.
Eight. I supplicated my children by my first wife that they should not contest this my last will,
as they have already received their shares in my own property, much more than what I now
give to the children by my second wife, excluding yet what I have given to them as aid during
their financial troubles and what they have borrowed, which they have not yet paid me and
which I now condone to them.
Both the trial court and the Court of Appeals found in effect that these declarations turned out to be
unfounded in fact, at least insofar as they referred to properties other than money alleged to have
been received by the children of the first marriage. Be that as it may, I believe the deceased Getulia
was not comprehended in said declaration anyway. When the testator said, "I declare that the
children by my first wife have no longer any participation in the property described above," he
referred only to his children who were living at that time and who, he evidently expected, would claim
some participation in the property left by him; He could not have referred to Getulia also because
she, having passed away, could no longer have or claim any participation in his property. Neither did
he refer to Getulia's children, for he did not mention them at all. Again, when the testator said, "I
supplicated by children by my first wife that they should not contest this my last will," he could not
have had Getulia in mind, because he knew the deceased could not contest his will; and if he had
intended to included Getulia's children, he would have mentioned them as his grandchildren. The
condonation of debts made by the testator in clause 8 of his will referred to the debts of those
children of his whom he entreated to refrain from contesting his will, and since Getulia could not
have been entreated by him, it is logical to conclude that her petty debt of P155 was not embraced
within that condonation. Getulia having passed away long before her father made his will, he had
evidently forgotten her as well as her petty debt.
The conclusion that Getulia and her children were not included in the above-quoted declarations and
that, therefore, they were entirely omitted in the will, is further strengthened by the undisputed fact
that aside from the small sum of P155 borrowed by her from him during her lifetime, he had not
given her or her children any portion of hi s property. Therefore, when the testator solemnly declared
in clause 7 of his will that his children by his first wife had already received their corresponding share
in his exclusive property in excess even of what would correspond to each of his children by his
second wife, he could not have had Getulia or her children in mind, for it is undisputable that he had
not given her any property whatsoever. He could not have had the P155 in mind (1) because it had
not been given but only loaned to her, and (2) because it was so relatively trivial an amount that he
could not have considered it equal to the share he left to each of his children by his second wife. His
estate was assessed by the committee on appraisals at P18,000, with a claim against it of only
P480.

In urging that the children of the first marriage be given only a share in the short legitime, the
minority opinion says that the testator has made "a clear and explicit declaration in his will that the
children of the second marriage shall be preferred." On the other hand, the majority opinion
maintains that the testator omitted the children of the first marriage upon the erroneous belief on his
part that he had given them a greater share in his property than that left to the children of the second
marriage. From this the majority infer that the testator did not intend to discriminate against his
children by his first marriage by giving them less than what he left to his children by his second
marriage. The majority view assumes that the declarations of the testator in clauses 7 and 8 of his
will, altho erroneous, were made in good faith. On the other hand, the minority view supposes that
the testator intended to prefer his children by his second wife by leaving to them all his property so
that the children by the first marriage are entitled only to their share in the short legitime which by
law the decedent could no withhold from them. I think the minority view is untenable. In the absence
of proof it cannot be presumed that the testator made the above-quoted declarations in bad faith
that he made them knowing that it was not true that he had given each of his surviving children by
his first wife at least an equal if not a greater share in his inheritance than what he left to each of his
children by his second wife. But if he had made those declarations in bad faith or as subterfuge to
deprive his children and grandchildren by his first marriage of their legal share in his inheritance, he
could only have done so with the intention to frustrate their right. In that case the preterition would
only assume a different form, voluntary instead of involuntary. But the result would be the same. As
stated by the Supreme Court of Spain in its decision of June 17, 1908, the preterition of a forced heir
"puede ser debida a ignorancia de que existiera, u olvido o proposito de burlar los derechos que la
ley les reconoce, supuestos todes que desvirtuan la fuerza y eficacia moral de aquella voluntad y
que justifican la anulacion de su expresion."

BOCOBO, J., dissenting:

After a careful study of this case, I am constrained to dissent from the resolution of the majority
denying the motion for reconsideration. I believe the judgment of the Court of Appeals should be
affirmed because:
First, there has been no preterition under article 814, Civil Code.
Second, even supposing that there has been a preterition, the children of the second marriage are,
however, entitled to the third for free disposal and to the third for mejora, in addition to their shares in
the strict or short legitime.
I
There Is no Preterition
There is no preterition because the findings of both the Court of First Instance of the Court of
Appeals show that all the children of the first marriage have received, in property and in cash, a part
of their short legitime. One of the requisites of preterition is that one or some of the heirs of the direct
line be totally deprived of their legitime. As Manresa says (Vol. 6, pages 356-357, 4th Ed.):
Que la omision sea completa. Esta condicion se deduce del mismo articulo 814, y resulta
con evidencia al realcionar este articulo con el 815. El heredero forzoso a quein el testador
deja algo por cualqueir titulo en su testamento, no se halla propiamente omitido, pues se le
nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse en el
articulo 814, si era o no necesario que se reconocies el derecho del heredero como tal
heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de la privacion

completa o total, tacita; este, de la privacion partcial. Los efectos deben ser y son, como
veremos, completamente distintos.
As to property, Eleuterio received parcel No. 4 by way of donation. The trial court found that said
parcel "appears to have been donated by Agripino Neri to his son Eleuterio, and which may be
brought to the common mass." In the judgment of the Court of First Instance, it is ordered that said
parcel No. 4 "should be brought to the common mass."
Moreover, there is a large parcel of land containing 182.6373 hectares which, according to a finding
of the Court of Appeals, "is still claimed to be the property not only of the children of the first
marriage but also of those of the second marriage." The decision of the Court of Appeals makes
these findings of fact:
As regards that large parcel of land adjoint parcel No. 1, it is contended that after the court
had denied the registration thereof, Agripino Neri y Chaves abandoned the said land and that
later on some of the children of the first marriage possessed it, thereby acquiring title and
interest therein by virtue of occupation and not through inheritance. It is not true that this
parcel containing 182.6373 hectares is now assessed in the names of some of the children
of the first marriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g, the owners of
the property are Agapita Neri de Chaves y Hermanos. Apparently, the said land is still
claimed to be the property not only of the children of the first marriage but also of those of
the second marriage. (Emphasis ours.)
It is true that according to the Court of Appeals, Getulia or her heirs did not receive any share of
the property of her father, but the trial court found that Getulia was indebted to her father in the
amount of P155 which debt is condoned in clause 8 of the will.
Furthermore, it is unquestioned tat all the children of the first marriage (except Getulia who debt of
P155 has been condoned in the will) had certain parcels in their names for tax purposes. The fact
that said parcels were either public land occupied and developed by the testator, or did not belong to
him, cannot support the theory of preterition because the essence of preterition is the omission of
any descendant or ascendant. If his right as an heir is recognized in anyway, there is no preterition,
and his remedy is that provided in article 815, which is to have his share completed in case he
received less than his legitime. In this case, the testator admits that his children of the first marriage
are also his lawful heirs but states they have already received their respective shares.
As for the cash advances, the trial court found that the six children, three Agripino, Getulia and
Celerina were indebted to the testator in the amounts of P500, P155 and P120, respectively. With
regard to the other children, Eleuterio Agapita and Rosario, clause 8 of the will says:
Eight. I supplicated my children by my first wife that they should not contest this my last will,
as they have already received their shares in my own property, much more than what I now
give to the children by my second wife, excluding yet what I have given to them as aid during
their financial troubles and what they have borrowed, which they have not yet paid me and
which I now condone to them. (Emphasis ours.)
It will be noticed that the testator in the above clause speaks of two kinds of cash advances to his
children: (1) aid from their father during their financial troubles; and (2) amounts borrowed by them
from their father. In the absence of proof to the contrary, it may be presumed that the testator was
referring to all his children of the first marriage when he stated: "excluding yet what I have given to
them as aid during their financial troubles.." It is hard to believe that during the whole lifetime of the

testator, who was well-to-do, and lived to the advanced age of 86 years, any of his children of the
first marriage did not receive even a small financial aid from the father.
All the children of the first marriage having received a part of their short legitime, either in property or
cash or both, there i no preterition. The law applicable is not article 814 but articles 815 and 817.
Civil Code, which provide:
ART. 815. El heredero forzoso a quien el testador haya dejado por cualquier titulo menos de
la legitima que le corresponda, podra pedir el complemento de la misma.
ART. 817. Las dispocisiones testmentarias que menguen la legitima de los herederos
forzosos, se reduciran, a peticion de estos, en lo que fueren inoficiosas o excesivas.
These articles govern where the heir has received, either in the will or by donation inter vivos, a part
of his legitime. Commenting on article 815. Manresa says (Vol. 6, page 366):
El espiritu del articulo 815 resulta evidente: cuanto el heredero forzoso no has sido olvidado
por el testandor, cuando ha tomado algo de los bienes herditarios, solo puede reclamar que
se le complete su legitima. La letra del articulo, aunque aplicable especialmente a las
disposiciones testamentarias, no repugna su extension a todo acto de disposicion del
testador por titulo lucrativo. Y ademas, el parrafo 1. del aritculo 819, el decir que las
donaciones hechas a los hijos imputan a su legitima demuestra que lo que los herederos
forzosos reciben en vida del testador de este, se entiende como recibido por su legitima en
el momento de su muerte, y, por consiguiente, como dejado por el testador a titulo de
herencia.
The children of the first marriage not having been entirely forgotten, the will should be respected and
carried out, but the children of the first marriage should have their respective shares in the strict
legitime completed after taking into account the amounts already received by them from their father.
As for the concurring opinion, I find it difficult to believe that the testator did not have in mind Getulia
or her children in clauses 7 and 8 of the will. My reasons are the following:
1. The testator clearly intended that his will should not be contested. When he said "I supplicated my
children by my first wife that they should not contest this my last will," it is not venturesome to
presume that he also referred to the children of Getulia because they, as the testator's
grandchildren, were also his heirs by right of representation of their mother. It is most unlikely that
the testator would frown upon a contest by his children of the first marriage but not upon a contest by
said grandchildren.
2. In his condonation of the money advances to his children of the first marriage in clause 8, it is
improbable that he had forgotten his daughter Getulia although she had been dead for several
years. Is the memory of a deceased daughter blotted out in the father's mind precisely at the
moment when he is searching his own conscience as he makes his will? Moreover, did not the
presence of Getulia's children serve to remind the testator of their mother?
Getulia's debt of P155 having been condoned in clause 8, it follows that articles 815 and 817 of the
Civil Code, supra, are applicable. The children of Getulia are, therefore, entitled to have their short
legitime completed according to the articles aforesaid, but they must return to the estate, by way of
collation, the amount of P155 under article 11038, paragraph 1 of the Civil Code which provides
thus:

ART. 1038. Cuando los nietos sucedan al abuelo en representacion del padre, concurriendo
con sus tios o primos, colacionaran todo lo que debiera colacionar el padre si viviera,
aunque no lo haya heredado.
II
The Mandas and Mejoras Are Valid
But granting that there was a preterition because one or some of the children of the first marriage
never received, by donation inter vivos or by will, anything from their father, it is clear from the will in
question that the children of the second marriage are entitled to the third for free disposal and to the
third for mejora (in addition to their share in the strict legitime). That is to say, I think we should apply
in this case this provision of article 814 on preterition: "pero valdran las mandas y mejoras en cuanto
no sean inoficiosas."
The majority resolution relies upon quotations from Manresa and Sanchez Roman to support the
proposition that the annulment of the "Institucion de heredero" entirely annuls the will. However, the
majority is laboring under a misunderstanding of the "institucion de heredero" under the Spanish law.
It is that misconception which had led the majority into a wrong interpretation of what those two
Spanish jurists mean when they say that the annulment of the "institucion de heredero" is total. It is
to be noted, at this juncture, that both authors, while stating that preterition entirely annuls the
"institucion de heredero," nevertheless admit that "manda" and "mejoras" which are not inofficious
are valid. Says Manresa (Vol. 6, pages 359, 360, 4th Ed.):
En el fondo la cuestion es identica. El testador puede siempre disponer a su arbitrio de la
parte libre. El legitimario, contra la voluntad expresa del testador, solo tiene derecho a su
legitima. Preterido o desheredado sin justa causa, la legitima es suya. Desheredado o
preterido, la porcion libre no le corresponde, cuando el testador la asigna a otro. (Italics
ours.)
La interpretacion que rectamente se desprende del articulo 814, es la de que solo valen, y
eso en cuanto no sean inoficiosas, las disposiciones hechas o titulo de legado o mejora. En
cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo, o en
parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa en
cuanto perjudique a la legitima del desheredado. Debe, pues, entenderse que la anulacion
es completa o total, y que este articulo, como especial en el caso que le motiva, rige con
preferencia al 817.
Todas las demas disposiciones testamentarias referentes a los bienes, como los legados y
las mejoras, en su caso, continuaran subsistentes, no obstante la pretericion, siempre que
no sean inoficiosas, esto es, siempre que las mejoras no excedan del tercio, y los legados
con las donaciones por causa de muerte, y las donaciones colacionables, no excedan de la
parde de herencia de libre disposicion. Si excedieren, se reduciran por las reglas del
Codigo, hasta dejar a salvo la legitima. (Emphasis ours.)
Further on (p. 363) Manresa adds:
Estimada la accion, y anulada la institucion de heredero, se abre la sucesion intestada
respecto a la parte de bienes de que el testador, dentro de la porcion libre no hubiese
dispuesto en virtud de legado, mejora o donacion.
Sanchez Roman also states:

En cambio, ni por la desheredacion ni por la pretericion pierde su fuerza el testamento, en

cuanto a dicho tercio libre, si se trata de descendientes; o la mitad, si se trata de
ascendientes, ya desherederos, ya preteridos, porque, ni por el uno ni por el otro medio, se
anula mas que la institucion de heredero, en general, y totalmente por la pretericion, y solo
en cuanto perjudique a la legitima del desheredado por la desheredacion; pero subsistiendo,
en ambos casos, todas aquellas otras disposiciones que no se refieren a la institucion de
heredero y se hallen dentro del limite cuantitativo del tercio o mitad de libre disposicion,
segun que se trate de descendientes o ascendientes, preteridos o desheredados.
(Emphasis ours.)
xxx

xxx

xxx

No obstante la pretericion, 'valdran las mandas y legados en cuanto no sean inoficiosas'. El

texto es terminante y no necesita mayor explicacion, despues de lo dicho, que su propia
letra, a no ser para observar que constituye una confirmacion indudable de los efectos de la
pretericion, en cuanto alcanzan solo, pero totalmente, a la anulacion de la institucion de
heredero, pero no a la de las mandas y mejoras en cuanto no sean inoficiosas o perjudiquen
a le legitima de los preteridos; calificativo de tales, como sinonimo legal de excesivas, que
en otros articulos, como el 817, establece la ley. (6 Sanchez Roman, Volumen 2.o 11401141.)
The seemingly self-contradictory statements of each of these two eminent jurists are confusing,
as they have confused the majority, unless he examines the historic background of the "institucion
de heredero" in the Spanish Civil Code.
Article 764 of the Civil Code Provides:
El testamento sera valido aunque no contenga institucion de heredero, o esta no comprenda
la totalidad de los bienes, y aunque el nombrado no acete la herencia o sea incapaz de
heredar.
En estos casos se cumpliran las disposiciones testamentarias hechas con arreglo a las
leyes, y el remanente de los bienes pasara a los herederos legitimos.
Manresa explains the development of the "institucion de heredero" thus (vol. 6, pages 85-86, 4th
Ed.):
La institucion de heredero es el acto en virtud del cual el testador designa la persona o
personas que han de sucederle en sus derechos, acciones y obligaciones; y su importancia
en la testamentifaccion es indiscutible, puesto que de ella surge la continuacion de la
personalidad del testador, si bien con las limitaciones impuestas por el mismo. En efecto,
por virtud de dicha institucion, la persona o personas instituidas por herederas suceden al
causante en la universalidad de sus derechos y obligaciones, en los terminos que
expusimos al comentar los articulos 659 y 660.
Hoy esa importancia ha cedido algun tanto, aunque no ha desaparecido por completo,
puesto que no es necesaria la institucion de herederos para la validez de la disposicion
mortis causa; pero en lo antiguo llego a ser considerada como la cabeza y raiz del
testamento, dando lugar su falta a la nulidad e ineficacia del mismo.

En las secciones precedentes hemos venido refiriendonos con repeticion a dos sistemas
sucesorios distintos: uno formalista y rituario, mantenido constantemente por el derecho
romano aun en los tiempos de mayor laxitud del mismo, y otro mas libre y expansivo, cuya
genuina representacion se halla en el Ordenamienti de Alcala. Y ese dualismo profundo que
entonces observamos entre la legislacion romana y la germana, hubo de manifestarse
tambien claramente en la materia relativa a la institucion de herederos.
No hemos de repetir aqui ideas expuestas ya en la resea historica con que encabezamos
la introduccion al estudio del tratado de sucesiones, pero conviene recordar, para la mejor
inteligencia de la reforma llevada a cabo en nuestras antiguas leyes, que la naturaleza de
los primitivos testamentos romanos, asi como la organizacion de la familia en aquella
potente nacion, y sus caracteres de universalidad y perpetuidad, impusieron la necesidad de
un heredero que continuase la personalidad juridica del causante, revistiendo a su vez a
dicha institucion de las mismas condiciones de necesidad, universalidad y perpetuidad. Era
necesaria la institucion como cabeza y solemnidad interna del testamento: era universal,
puesto que tenia que ser hecha sobre todo el patrimonio, no permitiendose testar sobre una
parte de el y no sobre el resto; y era por, ultimo, perpetua, porque siendo el medio de la
continuacion y subsistencia del testador, no podia ser ordenada la institucion con limitacion
de tiempo, y el heredero, una vez aceptada la herencia, no podia dejar de serlo.
Por el contrario, ni en la legislacion castellana, ni el el Fuero Juzgo, encarnacion del
elemento godo; ni en los Fueron municipales, inspirados en el mismo espiritu; ni en el Fuero
Viejo de Castilla, ni aun en el Fuero Real, se encuentra disposicion alguna que le atribuya
dicho caracter, acusando en ellos la institucion de herederos un concepto completamente
diverso, hasta que las Partidas, sin tener en cuenta los elementos distintos de nuestro
derecho y la diferente organizacion de la familia espoala, importo de plano la doctrina
romana, y con ella todo el complicado organismo de su sistema sucesorio. Segun tenemos
dichos ya, el Ordenamiento de Alcala hizo desaparecer ese regimen tan en oposicion con el
derecho patrio, asignando a la institucion los caracteres de libertad e independencia que ha
conservado hasta la publicacion del Codigo, puesto que las leyes posteriores a dicho
Ordenamiento no introdujeron modificacion alguna, manteniendo la libertad de la institucion
de herederos, sin mas limitaciones que el respeto a la moral y a los derechos legitimarios,
asi como mantuvo la independencia absoluta entre dicha institucion y el testamento, hasta el
punto de ser valido este, aunque no haya heredero no se haya dispuesto en el de la
totalidad de la herencia, lo cual permitia que el causante muriese parte testado y parte
intestado. (Emphasis ours.)
Commenting on article 764, Manresa says (Vol. 6, page 93):
Si a virtud de el no es necesaria ya para la valide de los testamentos que en ellos conste la
institucion de herederos, logica deduccion de dicho principio es que el testamento no se
invalide aunque no contenga dicha institucion o no comprenda la totalidad de los bienes, o
no resulte eficaz la institucion, hecha, ya por no aceptar la herencia el instituido, o por ser
este incapaz.
The only purpose, therefore, of the "institucion de heredero" is to have someone continue the
personality of the testator, so that there may be someone who should be personally liable for all the
obligations of the testator and who succeeds to all the rights of the decedent. But such "institucion
de heredero" is no longer essential, so that there may be a valid will, according to article 764,
although there is no "institucion de heredero." As Manresa says, since the Ordenamiento de Acala
there is an absolute independence between the "institucion de heredero" and the will. (Vol. 6, page
86.)

Therefore, in the case under consideration, the annulment of the "institucion de heredero" on
account of preterition does not render the will ineffective.
That the preterition under article 814 does not entirely invalidate the will is unanimously maintained
by the authors.
Sanchez Roman, supra, says that the effects of preterition, "alcanzan, solo, pero totalmente, a la
anulacion de la institucion de heredero, pero no a la de las mandas y mejoras en cuanto no sean
inofociosas o perjudiquen a la legitima de los preteridos."
Manresa states (Vol. 6, pages 362-363):
Para pedir la anulacion, corresponde al heredero preterido una accion, que siempre se ha
llamado querella de inoficioso testamento.
xxx

xxx

xxx

Estimada la accion, y anulada la institucion de heredero, se abre la sucesion intestada

respecto a la parte de bienes de que el testador, dentro de la porcion libre no hubiese
dispuesto en virtud de legado, mejores o donacion." (Italics ours.)
Scaevola in Vol. XIV, page 383 of his work on the Spanish Civil Code has this to say:
Acciones defensivas de legitima Prescripcion de las mismas. En nuestro entender, no
convive con el Codigo en materia de pretericion la tradicional querella de inoficioso
testamento. Apoyamos nuestra opinion en dos razones: primera, no nombrarla asi el
Codigo, ni contener doctrina equivalente, tanto en la seccion de legitimas, como en la de
prescripcion; segunda, sostener doctrina contraria a aquella de que derivaba la sobredicha
accion.
La querella se encaminaba a destruir el testamento, en caso de pretericion; el Codigo, con
conocimiento de causa, con conciencia de la doctrina, precisamente en oposicion a ella, no
autoriza tal destruccion en cuanto consigna la nulidad de la institucion hereditaria, pero la
validez de las mandas y mejoras. No existiendo el antecedente, no puede existir el
consiguiente; derogado el principio doctrinal que daba vida a la querella de inoficioso
testamento, desaparecio esta con el. Ha muerto al sucumbir la legislacion de la que era
elemento integrante, de cuyo cuerpo formaba parte.
Hoy la accion se encamina a la nulidad de la institucion hereditaria como medio para
adquirir el heredero forzoso la porcion que le seala la ley. Tratase sencillamente de una
accion real, comun u ordinario, de vida legal de treinta aos." (Italics ours.)
Goyena in his book on the Project of 1851, commenting on article 644 of the same, which provides
that preterition "anula la institucion de heredero; pero valdran las mandas y mejoras en cuanto no
sean inoficiosas" (the exact wording of article 814 of the present Spanish Civil Code) observes (Vol.
2, pages 94-95):
La ley 24 de Toro, u 8, titulo 6, libro 10, Novisima Recopilacion, dice: 'Cuando el testamento
se rompiere o anulare por causa de pretericion o exheredacion, etc., no por eso deje de
valer la mejoria del tercio y quinto.' Ex causa exhaeredationis vel praeteritionis irritum est

testamentum cuantum ad instituciones, caetera naumque firma permanent. Autentica, titulo

28, libro 6 del Codigo.
El articulo de mayor claridad y latituc, o por lo menos fijeza, a estas disposiciones Patria y
Romana.
A pesar de la ley de Toro, se nos ha enseado en las escuelas, que la pretericion anulaba
enteramente el testamento, y que no estaban corregidas por ella las leyes 3, titulo 7, y 1,
titulo 8, Partida 6, que asi lo declaraban: en Derecho Romano hemos aprendido como
inconcuso lo contrario de la autentica en el caso de pretencion de un heredero suyo; y esto
era lo cierto, por que la autentica fue tomada de la Novela 115, capitulos 3 y 4, en la que de
intento se trata de la desheredacion y de sus causas, y de la rescision del testamento, por la
querella de inoficioso; de consiguiente, la desheredacion hace referencia al padre; la
pretericion a la madre, pues respecto de ella constituye una desheredacion tacita.
Sala en sus Instituciones Romano-Hispanas, parrafo 5, titulo 13, libro 2, esta por las leyes
de Partida; y en su Ilustracion, numero 3, titulo 5, libro 2, sostiene lo contrario, y en apoyo de
la ley de Toro cita la autentica. 'Lo establecieron asi (dice) las leyes Romanas, y lo persuade
la equidad, que no permite tengalugar la pena mas alla del particular en que ocurrio la
indignidad o sin razon que la motivo.'
Prescindiendo de todo esto, el articulo hace sencillo y claro lo que hasta ahora ha sido
embrollado y dudoso.
Finally, Prof. Nicasio Lopez R. Gomez of the University of Valladolid says in his Tratado Teorico
Legal del Derecho de Sucesion," Vol. I, pages 316-319:
En Roma, la validez o nulidad de la institucion de heredero, envolvia la determinacion de los efectos
juridico-legales del testamento, o su negacion, puesto que, si era la solemnidad interna y necesaria
del testamento, y por consecuencia, su cabeza y fundamento, aquel no podia subsistir cuando en su
esencia concurriera un vicio de nulidad, o esta hubiera sido omitida et sine illa non est
testamentum . . . . Reconocido el principio de las legitimas y desenvuelto con arreglo a la
clasificacion de los herederos suyos, suyos y necesarios y voluntarios, los dos primeros habian de
ser necesariamente instituidos o justamente desheredados: y por ultimo la desheredacion justa con
causa legal y expresa privaba de la legitima al heredero a quien se imponia. La desheredacion
injusta sin causa o con causa falsa no podia producir este efecto, dejando completamente a salvo el
derecho de legitima, y otorgaba al desheredado la accion extraordinaria para reclamar contra la
institucion por inoficiosa, con el efecto absoluto de no referirse solamente a la porcion legitima, sino
que anulada la institucion quedaban nulas todas las demas disposiciones del testamento.
La pretericion de un heredero forzoso tambien producia el mismo efecto de nulidad.
Las Leyes de Partida al reproducir la doctrina romana con todo su rigorismo y encadenamiento de
las instituciones sucesorias, importaron en nuestra legislacion todas las disposiciones referentes a
la queja de inoficioso testamento, su naturaleza, extension, personas que podian ejercitarla en la
linea recta ascendente y descendente y en la colateral cuando la institucion recayera en persona
torpo postergando a los hermanos y por ultimo en cuanto al tiempo o plazo de su ejercicio.
La L. de. titulo 19 del Ordenamiento de Alcala, con su espiritu de transicion regenerador del primitivo
Derecho Espaol, llevo a cabo una transformacion completa e importantisima, pues al declarar la
independencia absoluta entre los ejectos de la institucion de heredero y los del testamento, la
extension de la queja de la inoficiosidad de este, quedo limitada estrictamente a reclamar contra la

institucion en cuanto fuera inoficiosa, percibiendo el desheredado o preterido la porcion legitima que
le correspondiera, subsistiendo la misma institucion en cuanto a los bienes que tuvieran el concepto
de libres, asi como todas las demas clausulas del testamento.
Consecuencia de esto y de la declaracion de la L. 9, de Toro, los descendientes y
ascendientes, injustamente desheredados o preteridos, podian entablar la accion o querella
de inoficioso testamento como herederos forzosos de su causante, con el solo efecto de
percepcion de su legitima, sin anular el testamento ni aun la institucion de heredero que
unicamente se rescindia en cuanto a aquella porciso; y con respecto a los colaterales o
hermanos, perdieron el derecho de ejercitar la citada accion desde el momento que fueron
privados del concepto de herederos forzosos, que tenain en el unico caso de ser
postergados a persona torpe, por haber quedado sin efecto este calificativo y las
distinciones que hicieron las leyes romanas y de Partidas.
Con estos brevisimos antecedentes historicos podemos pasar a fijar el verdadero concepto
de la queja de inoficioso testamento para despues exponer la doctrina vigente acerca de
ella.
Se entiende por queja o querella de inoficioso testamento, la accion que compete a los
herederos forzosos preteridos o injustamente desheredados sin causa o con expresion de
ella siendo falsa, para reclamar la porcion de bienes que como legitima les corresponde.
xxx

xxx

xxx

La impugnacion de la institucion hecha en testamento, por el heredero desheredado o

preteido, puede efectuarse de lso maneras: por el ejercicio directo de la accion contra el
instituido para que reconozca y abone la legitima; o por excepcion, cuando el desheredado
se hallare en posesion de la herencia y el instituido interpusiera la accion correspondiente
para percibirla.
El efecto inmediato de la queja de inoficioso testamento es anular la institucion de heredero
en cuanto perjudique los derechos legitimarios del actor. (Emphasis ours.)
Applying the above citations, what is the effect of preterition in this case? Does it render the will of
Agripino Neri y Chavez entirely void, so that an intestate succession must be declared as to all his
property? The negative answer is inescapable because of the true meaning of "institucion de
heredero" as already set forth, and the scope of the "queja de inoficioso testamento" as explained by
the writers above quoted.
Anulara la institucion de heredero" does not mean that the whole will is of no effect. It hereby
nullifies the clause designating the children of the second marriage as the only "herederos"
or continuers of the testator's personality and in the place of such clause, article 814 orders
that all the children, of both marriages, shall be such continuers of Agapito Neri's personality.
This does not mean that all the children shall divide the whole estate equally, by the rules of
intestacy. It simply signifies that the children of both marriages become continuers of Neri's
personality, and as such liable personally for all of Neri's obligations, so that under the
systems of the Spanish Civil Code, which distinguishes "herederos" from "legatarios," all the
children are liable personally for the debts of their father, even beyond and in excess of the
property received by each of them. They are also entitled to all his rights, but the extent of
such rights is determined by the will. They are all "residuary legatees" under the Code of
Civil Procedure, so that if there is any property undisposed of by his will, all the children shall
divide it equally.

With regard to the Spanish remedy of "queja de inoficioso testamento," the authorities already cited
limit the effect of the same, in case of preterition, under the Civil Code to the recovery of the
legitimate pertaining to the heir who has been omitted. This is conformity with article 814 which says
that the mandas and mejoras are valid insofar as they are not inofficious.
Have mandas and mejoras been given to the children of the second marriage? It is plain that the
intention of the testator is to give to the children of the second marriage all that remains of his
property; the children of the first marriage having already received from him their shares, in addition
to sums of money by way of aid and loan. This being so, and inasmuch as the greater includes the
less, his disposition in favor of his younger children should be upheld as to the two-thirds of his
remaining property, viz: the one-third for free disposal and the one-third formejora (in addition to their
share in the short legitimate).
First, as to the third for free disposal. The decision of this Court says there is No "legacy expressly
made in their behalf consisting of the third available for free disposal." I believe it is illogical to
require in this case that the will should expressly make a "legacy" from the third for free disposal. It is
enough that the testator gives all his remaining property to his children of the second marriage; from
that it should not be hard to declare than it was his intention to give them at least the third for free
disposal. In legal concept anything given from the third available for free disposal is a "manda" or
"legado," whether it is so named or not.
Second, as for the third available for mejora, I agree with the decision that there is no
express mejora. But I think there is a tacit mejora. Now, a tacit mejora is created when the testator
gives something to any of his children which cannot be contained in the third available for free
disposal. Article 828 provides:
ART. 828. La manda o legado hecho por el testador a uno de los hijos o descendientes no
se reputara mejora sino cuando el testador haya declarado expresamente ser esta su
voluntad, o cuando no quepa en la parte libre.
Here again, we should not require that this portion should be expressly called by the testator a
"mejora" or a "manda" because it would have been illogical and improper to speak of "mejora" or
"manda" when he was giving the whole of his remaining property to his children of the second
marriage. Article 814 simply means that in case of preterition, all testamentary provisions are valid in
so far as they do not impair the legitime. The effect of the decision in this case is to declare an
intestate succession as to the entire estate whenever there is no express mejora and express
legacy. Thus, there would be total intestacy, in spite of the testamentary provisions to the contrary, in
the preterition under the following circumstances:
1. Where there is a tacit mejora, under article 828; or
2. When there can properly be no mejora, express or implied, because a child or descendant is
instituted as thesole heir to the whole estate; or
3. When there can properly be neither express mejora nor express legacy because two or more
children or descendants are instituted to take the whole estate equally or without express
designation of shares.
Such could not have been the intention of the legislator, because the whole scheme of the Civil
Code as to successions is to respect testamentary provisions so long as the legitime is not
diminished. (Arts. 763, 764, 767, 777, 782, 792, 798, 813, 814, 815, 817, 820, 828, 1036, and 1037,
Civil Code.)

Furthermore, it would appear to be violative of the law to throw the entire will to the scrap heap and
declare a total intestate succession, when such will can and should be enforced in so far as the short
legitime of the children of the first marriage is not lessened. True, to some it might seem more
equitable to divide the estate equally among all the children of both marriages. But so long as the
short legitime is not impaired, the testator in this case was free to distribute his property among his
children as he saw fit and fair. (This is why even in case of preterition (article 814), mandas and
mejoras are valid to the extent that they are not inofficious. If this minimum and obligatory portion
(short legitime) of each child is kept intact in the partition under the will, the law does not admit of
any interference with the testator's wishes. He is the sole judge as to which children should get more
than the others. To hold that there shall be an equal division of the whole estate applying the rules
of intestacy when the testator positively and unmistakably stated that there shall be a different
distribution of the remaining estate, is contrary to law. Moreover, intestate succession is based upon
the presume intention of the deceased. Saving, of course, the short legitime of the children of the
first marriage, we should not resort to that presumed intention in the face of a clear and explicit
declaration in his will that the children of the second marriage shall be preferred.
But granting, arguendo, that strictly speaking there are no "mandas" and "mejoras" for the children of
the second marriage, yet by the principle of construction by analogy, the provision in article 814 that
mandas and mejoras shall be valid should be applied because the testator clearly intended to give at
least two-thirds of his estate to such children, inasmuch as he was giving all of it to them. And he
could dispose freely of said two-thirds in favor of said children of the second marriage, that is, onethird from the portion. for free disposal, and one-third from the portion assigned by law to mejora. In
other words, granting for the sake of argument that there was neither a manda nor a mejora in this
case, nevertheless the present situation offers a gap, not specifically foreseen by the lawmaker,
which should be filled by applying the words, "valdran las mandas y mejoras" through the principle of
analogy in order not to defeat the manifest intention of the testator.
The majority resolution lays tress on the supposed difference between the effect of article 814
(preterition) and of article 851 (disinheritance). Whatever may be the distinction between the two
articles in theory, the practical result is, however, the same because both articles contain a saving
clause in regard to the mandas and mejoras which do not impair the legitime. Article 814 says: "pero
valdran las mandas y mejoras en cuanto no sean inoficiosas," and article 851 also provides, "pero
valdran los legados, mejoras y demas disposiciones testamentarias en lo que no perjudiquen a
dicha legitima." The identity of ideas is plain. True, article 851 (disinheritance) annuls the "institucion
de heredero" in so far as it prejudices the person disinherited, where article 814 simply says that the
preterition "shall annul the institucion de heredero." However, the lack in article 814 of the qualifying
words "in so far as the omitted person is prejudiced" is filled and supplied by the words "pero valdran
las mandas y mejoras en cuanto no sean inoficiosas," which immediately follow. In fact, the words
"en cuanto perjudique al desheredero" in article 851 are superfluous and unnecessary because the
very same thought is conveyed by the words "pero valdran los legados, mejoras y demas
disposiciones testamentarias en lo que no perjudiquen a dicha legitima."
Up to this point I have discussed article 814, Civil Code, purely from the standpoint of that code,
without reference to the Code of Civil Procedure. This latter code, however, has abolished the
distinction between "heredero" and "legatario" under the Civil Code, and has changed the basis of
liability of persons, whether related or not to the deceased, who receive any property from the
estate. As stated by this Court in the case of Suiliong & Co., v. Chio Taysan, 12 Phil., 13 (year 1908):
An examination more especially of sections 597, 644, 727, 729, 731, 733, and 749 of the
Code of Civil Procedure, read together with the remaining provisions for the administration of
the estates of deceased persons, clearly indicates that the provisions of articles 660 and 661
of the Civil Code have been abrogated.

These provisions of the new code clearly demonstrate that the terms heredero and legatario,
as defined in the Civil Code (article 660), are not synonymous with the words "heir" and
"legatee," as used in the new code; the word "heir" in the code being technically applicable
only to a relative taking property of an intestate by virtue of the laws of descent, devisee and
legatee being reserved for all persons whether relatives or not, taking respectively real or
personal property by virtue of a will; while heredero in the Civil Code as applicable not only
to one who would be called an "heir", under the provisions of the new code, but also to one,
whether relative or not, who took what might be called "a residuary estate under a will (el
que sucede a titulo universal).
It appears also from an examination of those provisions that the legislature has provided no
machinery whereby an absolute right on the part of the heir to succeed by the mere fact of
death to all the rights and property of the deceased may be enforced, without previous
payment or provision for the payment of the debts; and on the other hand it has provided
machinery for the enforcement of he debts and other obligations of the deceased, not as
debts or obligations of the heir, but as debts or obligations of the deceased to the payment of
which the property of the deceased may be subjected wherever it be found. Thus section
597 expressly provides that, in those cases where settlement of an intestate estate may be
made without legal proceedings, either by a family council, as known under the Spanish law,
or by an agreement in writing executed by all the heirs, the real estate of the deceased
remain charged with liability to creditors of the deceased for two years after the settlement,
"notwithstanding any transfers thereof that may have been made"; and we think the
inference is clear that the legislator in this section recognizes and affirms the doctrine that,
prior to the date of such settlement, the real estate at least was charged in like manner with
the debts of the deceased. So it will be found that, where legal proceedings are had looking
to the settlement of testate or intestate estates, provision is made for the recovery of claims
against the deceased, not by proceedings directed against the heirs, but by proceedings
looking directly to the subjection of the property of the deceased to the payment of such
claims; the property both real and personal being, in express terms, made chargeable with
the payment of these debts, the executor or administrator having the right to the possession
of the real as well as the personal property, to the exclusion of the heirs, so long as may be
necessary for that purpose (secs. 727 and 729).
For practical purposes it may well be said that in the eye of the law, where there is no
remedy to enforce an alleged right when it is invaded, the existence of the right may safely
be denied; and where the law furnishes a remedy whereby one may enforce a claim, that
claim is a right recognized and established by the law. The new Code of Procedure
furnishing no remedy whereby the provisions of article 661 of the Civil Code may be
enforced, in so far as they impose upon the heredero (heir) the duty of assuming as a
personal obligation all the debts of the deceased, at least to the extent of the value of the
property received from the estate; or in so far as they give to the heredero the reciprocal right
to receive the property of the deceased, without such property being specifically subjected to
the payment of the debts of the deceased by the very fact of his deceased, these provisions
of article 661 may properly be held to have been abrogated; and the new code having
provided a remedy whereby the property of the deceased may always be subjected to the
payment of his debts in whatever hands it may be found, the right of a creditor to a lien upon
the property of the deceased, for the payment of the debts of the deceased, created by the
mere fact of his death, may be said to be recognized and created by the provisions of the
new code. (Pavia vs. De la Rosa, 8 Phil. Rep., 70)
The effect of such abolition between "heredero" and "legatario" under the Spanish law is to render
obsolete the words "anulara la institucion de heredero" in article 814 of the Civil Code, because at
present all devisees and legatees, whether designated as "herederos", "legatarios," "devisees,"

"legatees," or any other name are to be treated alike in the sense that none of them is personally
liable for the obligations of the testator, but the property assigned to each of them is burdened with a
lien in favor of the creditors of the deceased. In other words, the "institucion de heredero" under the
Spanish law, whereby the "heredero" continues the personality of the deceased and is personally
liable for all the obligations of the latter has disappeared from the juridical scene. That being so, the
words "anulara la institucion de heredero" in article 814 have become useless, anomalous and
anachronistic, and should be absolutely disregarded. The result in the instant case is that the
children of the first marriage should be merely added as coparticipants in the short legitimate, and
the will shall be in all other respects enforced. Therefore, the short legitime should be divided equally
among the children of both marriages, while the children of the second marriage shall, in addition,
have the mejora and the one-third set aside by law for free disposal.
There is another provision of law which should not be overlooked. It is article 1080 of the Civil Code,
which provides:
La particion hecha con pretericion de alguno de los herederos no se rescindira, a no ser que
se pruebe que hubo mala fe o dolo por parte de los otros interesados; pero estos tendran la
obligacion de pagar al preterido la parte que proporcionalmente la corresponda.
It is true that the above article expressly refers to partition among the heirs, but the intention of the
legislator is clear, that in a preterition, the partition should not be rescinded but the omitted heir
should get his lawful share. By analogy, the distribution made in the will by the testator in the present
case should not be disturbed, though the children of the first marriage should get their portion from
the short legitime.
Finally, the principle which I herein maintain has been established by this court in two decisions:
Escuin vs. Escuin, 11 Phil., 332 (year 1908), and Eleazar vs. Eleazar, 37 Off. Gaz., 1782 (year
1939). In the Escuin case, Emilio Antonio Escuin de los Santos who had no legitimate children,
made a will instituting his natural father, Francisco Escuin, and his (testator's) wife, Maria Teresa
Ponce de Leon as his universal heirs, who should divide the estate in equal shares. After the
testator's death, his acknowledged natural son, Emilio Escuin y Batac, claimed the entire estate.
However, this Court held that he, the acknowledged natural child, was only entitled to his legitimate
of one-third of the estate under article 842, and that the will was "valid with respect to the two-thirds
of the property which the testator could freely dispose of." I quote from the decision in that case,
which was penned by Mr. Justice Torres:
With respect to the question which form the basis of this litigation and refer to the second
assignment of errors, it should be noted that the late testator did not leave any legitimate
descendants or ascendants, but did leave a recognized natural child, the appellant minor,
and a widow; that the said minor, Emilio Escuin y Batac, is the general heir of his natural
father, the said testator, who recognized him while living (article 807, Civil Code), and in the
present case is entitled to one-third of his estate, which amount constitutes the legal portion
of a natural child (article 842 of the said code); and for the reason that the minor was ignored
by his natural father in his will, the designation of heirs made therein was, as a matter of fact
annulled by force of law, in so far as the legal portion of the said minor was thereby impaired.
Legacies and betterments shall be valid, in so far as they are not illegal, for the reason that a
testator cannot deprive the heirs of their legal portions, except in the cases expressly
indicated by law. (Arts. 763, 813, 814, Civil Code.)
As has been seen, the testator wished to dispose of his property in his will, designating as
heirs his natural father, Francisco Escuin, and his wife, Maria Teresa Ponce de Leon,
altogether ignoring his recognized natural child who is his general heir. In view thereof, and

for the reason that he exceeded his rights, the said designation of heirs became void in so
far as it impaired the right of his general heir and deprived him of his legal portion; the will,
however, is valid with respect to the two-thirds of the property which the testator could freely
dispose of. (Arts. 763, 764, 806, 813, 842, Civil Code.)
Notwithstanding the fact that the designation of heirs is annulled and that the law recognizes
the title of the minor, Escuin y Batac, to one-third of the property of his natural father, as his
lawful and general heir, it is not proper to assert that the late Emilio Escuin de los
Santos died intestate in order to establish the conclusion that his aid natural recognized child
is entitled to succeed to the entire estate under the provisions of article 939 of the Civil
Code, inasmuch as in accordance with the law a citizen may die partly testate and partly
intestate (article 764, Civil Code). It is clear and unquestionable that it was the wish of the
testator to favor his natural father and his wife with certain portions of his property which,
under the law, he had a right to dispose of by will, as he has done, provided the legal portion
of his general heir was not thereby impaired, the two former persons being considered
as legatees under the will.
The above-mentioned will is neither null, void, nor illegal in so far as the testator leaves twothirds of his property to his father and wife; testamentary provisions impairing the legal
portions of a general heir shall be reduced in so far as they are illegal or excessive. (Art. 817,
Civil Code.) (Emphasis ours.)
The above decision is controlling authority for the proposition that preterition of an heir annuls the
institution of heirs only in so far as the legitimate of the omitted heir is impaired, and that, therefore,
the will is valid with that limitation and no more. The decision and resolution in the instant case which
set aside the entire will and divide the estate equally among all the children on the basic of intestacy
is contrary to the doctrine of Escuin vs. Escuin.
It will be noted that in said case of Escuin vs. Escuin, this Court had in mind the intention of the
testator, and upheld the will in so far as the natural child's legitime was not curtailed, and this Court
did not require that there should be any express mejora or express legacy, as was done in the
decision and resolution in the instant case.
In the Eleazar case, the testator, Francisco Eleazar, omitted in his will his father Eusebio Eleazar,
disinherited his wife, Eulalia Nagar, and instituted Miguela Eleazar as his universal heir. The father
contended that the institution of Miguela Eleazar as universal heir should be annulled and that he,
the father, should be entitled to all the estate of the deceased. But this court rejected the father's
theory, saying:
The deceased, Francisco Eleazar, omitted in his last will and testament his legitimate father,
the appellant Eusebio Eleazar, expressly disinherited his lawful wife, Eulalia Nagar, and
instituted the appellee herein, Miguela Eleazar, as his universal heir. The lower court
admitted the will to probate and adjudged appellant and appellee each entitled to one-half of
the estate.
Appellant maintain in his appeal that the institution of the appellee as universal heir should
be annulled and that he be declared entitled to all the estate of the deceased.
The will, in so far as it deprives the appellant, as legitimate father of the deceased, of his
legal portion, is null and void, but is valid with respect to the other half which the testator
could freely dispose of and whichshould be considered as a legacy. (Escuin vs. Escuin, 11
Phil., 332; Arts. 814, 817, and 809, Civil Code.) (Emphasis ours.)

It will be noted that in the Eleazar case, the free half was considered by this court "as legacy" in
favor of Miguela Eleazar although it had not been so expressly designated in the will because the
whole estate had been given to her. This is precisely my view in the present case, but the majority
now state, deviating from the ruling in the Eleazar case, that as the whole property is bequeathed by
universal title to the children of the second marriage, "this is inconsistent with the idea of
legacy which essentially refers to a specific property bequeathed by a particular or special title."
But the majority tries to distinguish the present case from the two cases above cited, by saying that
there is a difference between a case where the whole estate is given to a mere friend, and a case
where the whole property is left to one or some forced heirs. This attempt to lay down a distinction
fails when it is considered:
1. That the law makes no difference between the two kinds of preterition. In both instances of
preterition, therefore, on the authority of Escuin vs. Escuin, and Eleazar vs. Eleazar, the will should
be avoided only in part.
2. It is true that in the case of a friend, total annulment of the will would entirely deprive him of a
share in the inheritance, and that in the case of some forced heirs being the sole beneficiaries in the
will, they would participate equally with the omitted forced heirs and would not be totally excluded.
But in this case, it was the evident intention of the testator to give preference to his children of the
second marriage. Moreover, I can not subscribe to the majority's reasoning when it believes that the
testator would be presumed to give the entire free third as a legacy to a friend but not to some of his
children. If we are to indulge in any presumption at all, it should be that the father would be at least
as disposed to give the whole free third as a legacy to some of his children who are his own flesh
and blood as to a friend.
3. Granting for the sake of argument that the basis of such preference was the mistaken belief that
the testator had already given the children of the first marriage more than the share given in the will
to the children of the second marriage, what solution would be warranted by law? Certainly, not the
scrapping of the entire will, because article 814 positively ordains that "mandas" and "mejoras" which
are not inofficious shall be valid. It is too far-fetched to assume that had not the testator made a
mistake, he would have divided his whole property equally among all his children. What supernatural
powers does any court have to divine the inward sentiments of the testator toward each and every
one of his children? Indeed, would not a so-called equal distribution produce real and actual
inequality on account of the different conditions of the various children in respect to fortune, age,
mental capacity, moral character, attitude toward the father, and so forth? This is the very reason
why the law allows the testator ample discretion to divide his estate among his children, provided the
law on the short legitime is observed. I, for one, am not ready to violate the sanctuary of the
testator's conscience, expect to safeguard the short legitime. So long as this portion is respected,
the testator may dispose of the mejora and the free third in favor of any of his children.
In view of the foregoing, I believe the motion for reconsideration should be granted, and the will
should be disregarded only in part, so that the children of both marriages should divide the short
legitime equally, but the rest of the estate should go, in equal shares, to the children of the second
marriage, in accordance with the intention of the testator expressed in the will.