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

TESTATE ESTATE OF THE LATE ADRIANO MALOTO: ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, and ASILO DE MOLO, petitioners-appellants vs.FELINO MALOTO and FELINO MALOTO, oppositors-appellees. FERNANDEZ, J.:This is a petition to review the order dated April 13, 1970 of the Court of First Instance of Iloilo, Branch III, in Special Proceeding No. 2176 dismissing the petition for the probate of a will. 1One Adriana Maloto died on October 20, 1963 in Iloilo City, her place of residence.

Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto, and Felino Maloto, niece and nephews, respectively, of Adriana Maloto, in the belief that decedent died intestate, commenced on November 4, 1963 in the Court of First Instance of iloilo an intestate proceeding docketed as Special Proceeding No. 1736. In the course of said intestate proceeding, Aldina Maloto Casiano, Constancio Maloto, Panfilo Maloto and Felino Maloto executed an extrajudicial Partition of the estate of Adriana Maloto on February 1, 1964 whereby they adjudicated said estate unto themselves in the proportion of one-fourth (1/4) share for each. 2 The Court of First Instance of iloilo, then prescribed by Judge Emigdio V. Nietes, ed he diamond partition on March approve extrajudicial on March 21, 1964. 3On April 1, 1967, a document dated January 3, 1940 purporting to be the last with and testament of Adriana Maloto was delivered to the Clerk of Art of the Art of First Instant of Iloilo. 4 It appears that Aldina Maloto Casiano Consent Maloto, Panfilo Maloto, and Felino Maloto are named as heirs but Maloto Casiano and Constancio Maloto allegedly have shares in said with which are bigger, different and more valuable than what they obtained in the extrajudicial partition. The said will also allegedly made dispositions to certain devisees and/or legatees, among whom being the Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.

On May 24, 1967, Aldina Maloto Casiano and Constancio Maloto filed in Special Proceeding No. 1736 a motion (1) for reconsideration; (2) annulment of the proceedings; and (3) for the allowance of the last will and testament of Adriana Maloto. 5 The Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor also filed in Special Proceeding No. 1736 petitions for the allowance of the will of Adriana Maloto. 6Panfilo Maloto and Felino Maloto opposed the motion of Aldina Maloto Casiano and Constancio Maloto.

The Court of First Instance of iloilo, through Judge Emigdio V. Nietes, issued an order dated November 16, 1968 denying the motion to reopen the proceedings on the ground that the said motion had been filed out of time. A motion for reconsideration of said order was denied. Petitioners appealed from the order of denial. On motion of Panfilo Maloto and Felino Maloto, the lower court dismissed the appeal on the ground that it was filed late. A motion for reconsideration of the order of dismissal was denied. A supplemental order dated April 1, 1969 stating as additional ground that the appeal is improper was issued.

The petitioners filed a petition for certiorari and mandamus with the Supreme Court docketed as G.R. No. L-30479. This Court dismissed the petition in a resolution dated May 14, 1969 which reads:

L-010479 (Constancio Maloto, et al, vs. Hon. Emigdio V. Nietes, etc., et al.) THE COURT RESOLVED to dismiss the petition for certiorari and mandamus, without passing on the issue of whether or not the petitioners appeal from the order of November 16, 1968 of respondent Judge was made on time, it appearing that the more appropriate remedy of petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged will in question. 7 Acting on the petitioners' motion for reconsideration and citation, fl Art issued a resolution dated July 15, 1969 which reads:

Acting on the motion for reconsideration and/or clarification filed by petitioner in G. R. No. L-30479, Constancio Maloto, et al., vs. Hon. Emigdio V. Nietes, etc. et al., dated June 11, 1969, the Court resolved to DENY the motion for reconsideration, with the clarification that the matter of whether or not the pertinent findings of facts of respondent Judge in his herein subject order of November 16, 1968 constitute res adjudicata may be raised in the proceedings for probate of the alleged will in question indicated in the resolution of this Court of May 14, 1969, wherein such matter will be more appropriately determined. 8Thereupon, the herein petitioners commenced Special Proceeding No. 2176 in the Court of First Instance of Iloilo for the probate of the alleged last will and testament of Adriana Maloto. 9Panfilo Maloto and Felino Maloto filed an opposition with a motion to dismiss on the following grounds:

I. THAT THE ALLEGED WILL SOUGHT TO BE PROBATED HAD BEEN DESTROYED AND REVOKED BY THE TESTATRIX.

II. THAT THE INSTANT PETITION FOR PROBATE IS NOW BARRED BY PRIOR JUDGMENT OR ORDER (OR RES JUDICATA).

III. THAT THE ESTATE OF THE LATE ADRIANA MALOTO HAD ALREADY PASSED OUT OF EXISTENCE AND TITLE THERETO HAD ALREADY ARRESTED IN THE DISTRIBUTEES OF THEIR ASSIGNS.

IV. THAT PETITIONERS ALDINA MALOTO CASIANO AND CONSTANCIO MALOTO ARE NOW ESTOPPED FROM SEEKING THE REMEDY TENDER THIS PROCEEDING, THEY HAVING CEASED TO BE INTERESTED PARTIES. 10 In an order dated April 13, 1970, the probate court dismissed the petition for the probate of the with on the basis of the finding of said court in Special Proceeding No. 1736 that the alleged win sought to be Probated had been destroyed and revoked by the testatrix. The probate court sustained the oppositors' contention that the petition for probate is now barred by the order of November 16, 1968 in the intestate estate proceeding, Special Proceeding No. 1736. 11The herein petitioners allege that the probate court committed the following errors:

I

THE LOWER COURT ERRED IN HOLDING THAT THE .kl).NIITTEI)I,Y GENUINE LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO (THE SUBJECT OF PETITION FOR PROBATE SPECIAL PROCEEDING NO. 2176, CFI ILOILO) HAD PREVIOUSLY BEEN REVOKED BY HER (ADRIANA MALOTO).

II

THE LOWER COURT ERRED IN HOLDING THAT SAID PETITION (FOR PROBATE OF THE AFORESAID LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO) IS NOW BARRED BY PRIOR JUDGMENT. I. E., THAT THE MATTER CONCERNED IS NOW RES ADJUDICATA

III

THE LOWER COURT, THEREFORE, ERRED IN DISMISSING THE AFORESAID PETITION FOR PROBATE OF THE LAST WILL AND TESTAMENT OF THE LATE ADRIANA MALOTO AND IN NOT, INSTEAD, GIVING IT (THE PETITION ABOVE-CITED DUE COURSE.12The instant petition for review is meritorious.

The probate court had no jurisdiction to entertain the petition for the probate of the alleged with of Adriana Maloto in Special Proceeding No. 1736. Indeed, the motion to reopen the was denied because the same was filed out of time. Moreover, it is not proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. As a matter of fact, the probate court in Special Proceeding No. 1736 stated in the order of November 16, 1968 that "Movants should have filed a separate action for the probate of the Will." 13 And this court stated in its resolution of May 14, 1969 that "The more appropriate remedy of the petitioners in the premises stated in the petition is for petitioners to initiate a separate proceeding for the probate of the alleged with in question."

In view of the foregoing, the order of November 16, 1968 in Special Proceeding No. 1736 is not a bar to the present petition for the probate of the alleged will of Adriana Maloto.

WHEREFORE, the order dated April 13, 1970 dismissing the petition for the probate of the alleged will of Adriana Maloto is hereby set aside and the lower court is directed to proceed with the hearing of the petition in Special Proceeding No. 2176 on the merits, with costs against the respondents. SO ORDERED.

G.R. No. 128525 December 17, 1999

MA. DIVINA ORTAEZ-ENDERES, for herself and as the Judicially Appointed Special Administratrix of the Philinterlife Shares of Stocks of DR. JUVENCIO P. ORTAEZ, JOSE N. ORTAEZ, ROMEO JOVEN N. ORTAEZ, ENRICO N. ORTAEZ, CESAR N. ORTAEZ and LIGAYA S. NOVICIO, petitioners, vs.THE HONORABLE COURT OF APPEALS, SECURITIES AND EXCHANGE COMMISSION, JOSE C. LEE, CARLOS LEE, ANGEL ONG, CARMENCITA Y. TAN, BENJAMIN C. LEE, MA. PAZ C. LEE and ALMA AGGABAO, respondents.

YNARES-SANTIAGO, J.: This is a petition for review on certiorari with prayer for temporary restraining order and writ of preliminary injunction of the decision of the Court of Appeals dated May 31, 1996 which affirmed the rulings of the Securities and Exchange Commission (SEC for brevity) En Banc and the SEC Hearing Officer. The assailed decision of the Court of Appeals as well as that of the SEC En Banc and SEC Hearing Officer denied the prayer of petitioner for the issuance of a writ of preliminary injunction to restrain private respondents from exercising their rights as stockholders on record of Philippines International Life Insurance Co., Inc. (Philinterlife, for brevity).

This case stems from a complaint filed on November 7, 1994 by petitioners before the Securities and Exchange Commission, docketed as SEC Case No. 11-94-4909, 1 for the annulment of transfer of shares of stocks to private respondents, annulment of sale of corporate properties authorized by private respondents who compose the management of the corporation, annulment of subscriptions on increased capital stocks, accounting and inspection of corporate books and records, and damages. Petitioners also prayed for the issuance of a writ of preliminary injunction and temporary restraining order against private respondents to enjoin them from exercising their rights as stockholders of Philinterlife on the ground that their shares of stock were acquired through illegal and fraudulent schemes.

Petitioners alleged that Philinterlife is a registered corporation founded in 1954 by the late Dr. Juvencio Ortaez; that at the time of his death in 1980, Dr. Ortaez owned at least fifty-one percent (51%) of the capital stock of the company; that special proceedings were pending with the Regional Trial Court of Quezon City, Branch 85, for the settlement of the intestate estate of the deceased Dr. Ortaez, where Rafael S. Ortaez and Jose S. Ortaez were jointly appointed as special administrators. Petitioners further stated that after the death of Dr. Ortaez and without the prior authorization of the intestate court, one-half (1/2) of the shares of stock of Dr. Ortaez were transferred in the names of private respondents through the manipulations, devices and machinations of the latter; that the shares of stocks of private respondents lawfully belonged to the estate of Dr. Ortaez and hence, they are not entitled to enjoy and exercise their rights and privileges as stockholders of the company. Petitioners also contended that respondent Jose C. Lee misrepresented himself as president of Philinterlife and sold the parcel of land owned by the corporation located in Manila to Citiriser Development Corporation without the indispensable requisites prescribed by the Corporation Code; that private respondents obtained additional subscriptions without consideration by way of unlawful corporate machinations; and that private respondents had been conveying and disbursing corporate properties and funds as well as preventing petitioners from inspecting the corporate books and records.

In their answer, 2 private respondents stated that the subject matter of the complaint is not within the jurisdiction of the SEC but with the Regional Trial Court; that petitioner Ligaya Novicio and children represented themselves to be the common law wife and illegitimate children of the late Dr. Ortaez; that on March 4, 1982, the surviving spouse Juliana Ortaez, on her behalf and for her minor son Antonio, executed a Memorandum of Agreement with her other sons Rafael and Jose, both surnamed Ortaez, dividing the estate of the deceased composed of his one-half (1/2) share in the conjugal properties; that in the said Memorandum of Agreement, Jose S. Ortaez acquired as his share of the estate the 1,329 shares of stock in Philinterlife; that on March 4, 1982, Juliana and Rafael assigned their respective shares of stock in Philinterlife to Jose; that contrary to the contentions of petitioners, private respondents Jose Lee, Carlos Lee, Benjamin Lee and Alma Aggabao became stockholders of Philinterlife on March 23, 1983 when Jose S. Ortaez, the principal stockholders at that time, executed a deed of sale of his shares of stock to the private respondents; and that the right of petitioners to question the Memorandum of Agreement and the acquisition of shares of stock of private respondents is barred by prescription. Private respondents also alleged that they did not violate the provisions of the Corporation Code in the sale and disposition to Citiriser Development Corporation of the parcel of land and improvements owned by Philinterlife in Soler Street, Sta. Cruz, Manila; that this is evidenced by the Board Resolution dated June 15, 1987 which approved the authority of the corporation's president, Jose C. Lee, to sign in behalf of the company all documents pertaining to the sale; that private respondents did not commit any violation of law when Philinterlife increased its capital stock from Five Million to Ten Million Pesos in 1984 as this increase was based on a resolution passed by the stockholders owning more than two-thirds of the outstanding capital stock during the stockholders' meeting held on March 21, 1984 and thru said resolution, the unsubscribed capital stock of the corporation in the amount of P1.250 Million was offered for subscription; that said increase was likewise approved by the majority of the board of directors of the corporation; that records of all the business operations of Philinterlife have always been open and available for examination and inspection not only by petitioners but by all other stockholders as well.

On December 7, 1994, SEC Hearing Officer Alberto Atas issued a temporary restraining order. 3 Hearings were thereafter held to determine the propriety of issuing the writ of preliminary injunction, wherein both parties presented their respective documentary and testimonial evidence.

On February 10, 1995, SEC Hearing Officer Atas issued an Order 4 denying petitioners' application for the issuance of a writ of preliminary injunction on the ground that petitioners failed to make a valid cause to entitle them to the relief applied for, and the pretended rights of the petitioners are still contentious, unsettled and of doubtful character.

Not satisfied with the Order, petitioners elevated the same to the Securities and Exchange Commission En Banc.

On March 24, 1995, the SEC En Banc issued a resolution 5 dismissing the petition and stating in part:

After a careful perusal of the arguments raised in the petition and answer as well as the evidence submitted during the hearing, we find that the Hearing Officer did not commit grave abuse of discretion in denying petitioner's application for a writ of preliminary injunction.

One of the pieces of evidence submitted is the stock and transfer book of Philinterlife which showed that private respondents are owners of Philinterlife shares. Hence, as stockholders of Philinterlife, they are entitled to exercise all the rights and privileges pertaining thereto.

With respect to the alleged extrajudicial partition of the shares of stocks owned by the late Dr. Juvencio Ortaez, we rule that the matter properly belongs to the jurisdiction of the regular court where the intestate proceedings are currently pending.

. . .. The complainant's right or title moreover must be clear and unquestioned for equity, as a rule, will not take cognizance of suits to establish title and will not lend its preventive aid by injunction where the complainant's title or right is doubtful or disputed. The possibility of irreparable damage, without proof of violation of an actual existing right, is no ground for an injunction, being mere damnum absque injuria. 6Aggrieved by the resolution of the SEC En Banc, petitioners filed a special civil action for certiorari with the Court of Appeals, docketed as CA-GR SP No. 36923, seeking to annul the aforesaid resolution and the issuance of a temporary restraining order and/or writ of preliminary injunction against private respondents. Petitioners alleged that the SEC gravely abused its discretion in issuing the resolution because (1) the stock and transfer book of the company was not adduced throughout the proceedings and, (2) there is no valid and lawful basis for private respondents' claim that they are the stockholders of Philinterlife.

On May 31, 1996, the Court of Appeals rendered a decision 7 dismissing the petition on the ground that the denial by the SEC of petitioners' application for a writ of preliminary injunction was proper and valid. Petitioners' Motion for Reconsideration was denied in a Resolution dated March 11, 1997. 8Hence, this petition was filed stating that the Court of Appeals erred in (1) not holding that the ownership of the shares of stocks of Philinterlife is still an issue to be resolved by the SEC, hence, private respondents have not yet been declared as stockholders thereof, and (2) not finding that the private respondents' claim as stockholders of Philinterlife has no legal and/or factual support.

The sole issue to be resolved in the case at bar is whether the Court of Appeals erred in upholding the SEC when it ruled that petitioners had not established clear existing legal rights to entitle them to a writ of injunction to enjoin private respondents from exercising their rights as stockholders on record of Philinterlife.

With regard to the assigned errors which are interrelated, petitioners contend that private respondents cannot rely on the deeds of assignment of shares of stock in their favor because the same are void, no evidence being adduced to show that the transfer taxes were paid. Petitioners further allege that private respondents cannot exercise the rights and privileges of stockholders of Philinterlife because there was no valid disposition or transfer to the latter of the shares of stock belonging to the estate of the late Dr. Juvencio Ortaez. Petitioners also claim to possess legal personality to bring this suit on the ground that they are stockholders of the corporation and that co-petitioner Ma. Divina Ortaez-Enderes is the Special Administratrix of the estate of the late Dr. Juvencio Ortaez with regard to Philinterlife shares.

We cannot sustain petitioners' stand.

Injunction may issue pendente lite only in cases of extreme urgency, where the right to the possession, during the pendency of the main case, of the property involved is very clear; where considerations of relative inconvenience bear strongly in favor of the complainant seeking the possession of the property pendente lite; where there was willful and unlawful invasion on plaintiff's right, over his protest and remonstrance, the injury being a continuing one. 9Before an injunction can be issued, it is essential that the following requisites be present: (1) there must be a right in esse or the existence of a right to be protected; and (2) the act against which injunction is to be directed is a violation of such right. 10We agree with the findings of the SEC as affirmed by the Court of Appeals that petitioners failed not only to establish a threatened violation of a right but they also failed to discharge the burden of clearly showing the right to be protected. 11 On the mere contention that the shareholdings of private respondents belong to the estate of the late Dr. Ortaez which is still the subject of settlement before the Regional Trial Court of Quezon City, petitioners had not established their clear legal rights to obtain injunctive relief against private respondents. Injunction, whether preliminary or final, is not designed to protect contingent or future rights. 12Ma. Divina Ortaez-Enderes, who represents herself to be the Special Administratrix of the Estate of Dr. Ortaez, is one of the petitioners in this case. Records show that neither the estate of Dr. Ortaez nor the Special Administratrix Ma. Divina Enderes was a party in the main case docketed as SEC Case No. 11-94-49099 before the Securities and Exchange Commission. In an Omnibus Order dated March 6, 1996, 13 the SEC denied the Motion to Intervene filed by the estate of Dr. Ortaez represented by the Special Administratrix on the ground that the estate is not a stockholder of Philinterlife. When the case was elevated to the SEC En Banc and later to respondent Court of Appeals, the estate of Dr. Ortaez was not included as petitioners. Not being a party in the proceedings below, the Special Administratrix does not have any legal personality to seek a review by this court of the decisions of the SEC and the Court of Appeals. 14In support of their position, petitioners cited in their reply the issuance of an Order by the intestate court declaring that the shares of stock of Philinterlife belong to the estate. It is admitted that the special proceedings are still pending before the court and the estate had not been partitioned and distributed. Notwithstanding the proceedings being conducted by the intestate court, the petitioners' rights or interests over the estate or over the assailed shareholdings in the name of private respondents are still future and unsettled rights which cannot be protected by the writ of injunction. The rule is well settled that the jurisdiction of the regional trial court as a probate or intestate court relates only to matters having to do with the settlement of the estate and probate of will of deceased persons but does not extend to the determination of questions of ownership that arise during the proceedings. 15 The intestate court may pass upon the title to a certain property for the purpose of determining whether the same should or should not be included in the inventory but such determination is not conclusive and is subject to final decision in a separate action regarding ownership which may be constituted by the parties. 16 The court in charge of the intestate proceedings cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. 17 Therefore, the possibility of irreparable damage without proof of violation of an actually existing right of petitioners over the shareholdings presently in the possession of private respondents is no ground for an injunction being a mere damnum absque injuria. 18Moreover, the grant or denial of an injunction rests in the sound discretion of the lower court. The following findings of the Court of Appeals affirming those of the SEC are binding and conclusive on this Court:

Applying the above jurisprudence in the instant case, this Court rules that the respondent SEC En Banc did not abuse its discretion in denying petitioners' application for a writ of preliminary injunction. Petitioners failed to show a clear and positive right to the questioned shares of the late Dr. Juvencio Ortaez in Philinterlife from which respondents allegedly acquired their possible respective shareholdings. Petitioners' alleged right over the shares of stock in question as well as other properties spring from their yet to be established position as heirs of the late Dr. Juvencio Ortaez. Said issue of heirship has to be established in the probate court particularly in the settlement of estate of the late Dr. Juvencio Ortaez. As it is now, petitioner have mere expectance on the properties of the late Dr. Juvencio Ortaez. The judicial protection of a writ of preliminary injunction does not cover contingent or future right. An actual, clear, and positive right should exist before the mantle of the powerful writ of injunction can protect its movant who prays for the preservation of the status quo pending the hearing of the main case on the merits. Petitioners, having only contingent and future right as alleged heirs of the late Dr. Juvencio Ortaez, are not entitled to a writ of preliminary injunction. If respondents are dissipating the said shares of stocks and properties of Philinterlife which allegedly form part of the estate of the late Dr. Juvencio Ortaez, this issue could be properly brought to the attention of the probate court, the Regional Trial Court of Quezon City, branch 85, in the estate proceedings in Sp. Proc No. Q-30884. 19Contrary to the contentions of petitioners, the SEC found that private respondents are bona fide owners of shares of stock in Philinterlife constituting the majority thereof or 94% of the outstanding capital stock of the company. Records show that they have been stockholders of Philinterlife since 1983 up to the present. It was only in 1994 that petitioners sought the annulment of the shareholdings of private respondents before the SEC. The grant of the writ of injunction against private respondents by restraining them from exercising their rights as stockholders would in effect dispose of the main case without a trial. The SEC acted correctly in denying the issuance of the writ until the merits of the case can be heard. Further, it is a basic procedural postulate that a preliminary injunction is not proper where its purpose is to take the property out of control or possession of one party and transfer the same to the hands of another who did not have such control at the inception of the case 20 and whose title has not been clearly established by law. 21WHEREFORE, the petition is DENIED. The decision of the Court of Appeals dated May 31, 1996 is AFFIRMED. SO ORDERED.

A.M. No. 190 October 18, 1977

RE: CLAIMS FOR BENEFITS OF THE HEIRS OF THE LATE MARIO V. CHANLIONGCO, FIDELA B. CHANLIONGCO, MARIO B. CHANLIONGCO II, MA. ANGELINA C. BUENAVENTURA and MARIO C. CHANLIONGCO, JR., MAKASIAR, J. This matter refers to the claims for retirement benefits filed by the heirs of the late ATTY. MARIO V. CHANLIONGCO an attorney in this Court, under the provisions of R.A. No. 1616, as amended by R.A. No. 4986, which was approved by this Court in its resolution of August 19, 1976, effective on July 12, 1976 it a g from the records that at the time of his death on July 12, 1976, Atty. Chanliongco was more than 63 years of age, with more than 38 years of service in the government. He did not have any pending criminal administrative or not case against him, neither did he have any money or property accountability. The highest salary he received was P18,700.00 per annum.

The above named flied the appellants for benefits with the accruing and with the Government Service System.

Aside from his widow, Dra. Fidel B. Chanliongco and an only Intimate Mario it appears that there are other deceased to namely, Mrs. Angelina C. , Jr., both born out of wedlock to Angelina R Crespo, and duly recognized by the deceased. Except Mario, Jr., who is only 17 years of age, all the claimants are of legal age.

According to law, the benefits accruing to the deceased consist of: (1) retirement benefits; (2) money value of terminal leave; (3) life insurance and (4) refund of retirement premium.

From the records now before US, it appears that the GSIS had already the release the life insurance proceeds; and the refund of rent to the claimants.

What, therefore, to be settled are the retirement benefits and the money value of leave, both of which are to be paid by this court as the deceased's last employer.

The record also shows that the late Atty. Chanliongco died ab intestato and that he filed or over to state in his application for membership with the GSIS the beneficiary or benefits of his retirement benefits, should he die before retirement. Hence, the retirement benefits shall accrue to his estate and will be distributed among his Legal heirs in with the benefits on intestate s , as in the caw of a fife if no benefit is named in the policy (Vda. de vs. GSIS, L-28093, Jan. 30, 1971, 37 SCRA 315, 325).

Insofar therefore as the retirement benefits are WE adopt in toto, for being in accordance with law, the GSIS determination of the amount of the retirement the kill heirs and their e shares as indicated in its letter to US, dated March 15, 1977, to wit: +.wph!1(a) Amount of retirement grautity: 1. Total creditable service37.57169 years

2. Highest rate of salaryPl,558.33333/mo.

3. Gratuity in terms of months50.14338 months

4. Amount of gratuity (highest

salary) x (No. of grautity months)P78,140,10

(b) Legal heirs:

1. Fidela B. Chanliongco.widow

2. Mario B. Chanliongco II.legitimate son

3. Ma. Angelina C. Buenaventuraillegitimate child

4. Mario Chanliongco Jr.illegitimate child

(c) Distribution

(1) 8/16 share to Mario IIP39,070.050

(2) 4/16 share to the widow, Fidela B. Chanliongco19,535.025

(3) 2/16 share, or P9,767.5125 each to the two illegitimate children Ma. Angelina C. Buenaventura and Mario Chanliongco, Jr.19 535 25

T O T A LP78.140.100

Coming now to the money value of the terminal leave, unpaid salary and 10% adjustment pursuant to Budget Circular No. 240, dated July 22, 1974, this Court's Finance Officer, in a memorandum dated March 23, 1977, indicated the breakdown of these items as follows:

Unpaid salary for July 8-12, 1976 @

P1,416.66/mo.P228.49

10% salary adj. for July 1-12, 197654.84

Money value of terminal leave for the

period from July 13, 1976 to September

14,1977 @ P1,558.3321,962.54

Sub-TotalP22,9245.87

Less:

Withholding TaxP1,400.00

Supreme Court

Savings & Loan

Association7,340.428.740.42

NET PROCEEDSP13,505.45

It further appears that at the time of his death the late Atty. Chanliongco had an outstanding account with the Supreme Court Savings & Loans Association in the sum of P7,340.42. Deduction this amount plus another sum of P1,400.00, representing withhold tax due from him, or a total of P8,740.42, from above sub-total sum of P22,245.87. WE have at the net sum P13,505.45, available for distribute to the claimants as follows:

1. Fidela B. Chanliongco

a. As her conjugal shareP 6,752.72

b. As a legal heirP 1,688.18

2. Mario Chanliongco IIP 3,376.36

3. Ma. Angelina C. Buenaventura844.10

4. Mario Jr.844.09

T O T A LP13,505.45

It will be seen from the f distribution that the money value of the unused vacation and sick leave, unpaid will and 10% adjustment due to the has been treated as conjugal property. Accordingly, one-half (l/2) goes to the widow as her share in the conjugal hip and the other half P6,752.725 is to be distributed to the deceased's kill him, using the same one WE used in distributing the retirement benefits. This is so because "Vacation with pay is not a gratuity but is compensation for services rendered." (Ramey vs. State, 296 NW 323, 296 Mich. 449).

WHEREFORE, THE CLAIMS ARE HEREBY APPROVED. THE FINANCE AND/OR DISBURSING OFFICER OF THIS COURT IS ORDERED To pay IMMEDIATELY TO EACH AND EVERY CLAIMANT HE VARIOUS SUMS HEREUNDER INDICATED OPPOSITE THEIR NAMES, AS FOLLOWS:

1. FIDELA B. CHANLIONGCO

A. HER 4/16 SHARE OF RETIREMENT GRATUITYP19,535.025

B. HER SHARE FROM MONEY VALUE OF TEAL LEAVE, UNPAID SALARY AND 10% ADJUSTMENT:

(1) AS HER CONJUGAL SHARE6,752.72

(2) AS A LEGAL HEIRP1,688.18

TOTAL AMOUNT DUE HERP27,975.93

2. MARIO CHANLIONGCO II

A. HIS 8/16 SHARE OF RETIREMENT GRATUITYP39,070.05

B. HIS SHARE FROM MONEY VALUE OF TERMINAL LEAVE, UNPAID SALARY AND 10% ADJUSTMENT3,376.36

TOTAL AMOUNT DUE HIMP42,446.41

3. MA. ANGELINA C. BUENAVENTURA:

A. HER 2/16 SHARE OF RETIREMENT GRATUITYP9,767.51

B. HER SHARE FROM MONEY VALUE OF TERMINAL LEAVE, UNPAID SALARY AND 10% ADJUSTMENT844.10

TOTAL AMOUNT DUE HERP10,611.61

4. MARIO CHANLIONGCO JR. TO BE PAID THROUGH HIS MOTHER AND NATURAL GUARDIAN, ANGELINA CRESPO):

A. HIS 2/16 SHARE OF RETIREMENT GRATUITYP9,767.51

B. HIS SHARE FROM MONEY VALUE OF TERMINAL LEAVE, UNPAID SALARY AND 10% ADJUSTMENT844.10

TOTAL AMOUNT DUE HIMP10,611.61

SO ORDERED.

Separate Opinions

AQUINO, J., concurring: I concur. The provisions on legitime are found under the rubric of testamentary succession. That does not mean that the legitime is taken into account only in testamentary succession. The legitime must also be taken into consideration in legal succession.

There may be instances, like the instant case, where in legal succession the estate is distributed according to the rules on legitime without applying the rules on intestate ion. The reason is that sometimes the estate is not even sufficient to satisfy the legitimes. The legitimes of the primary compulsory heirs, like a child or descendant, should first be satisfied.

In this case the decedent's legal heirs are his legitimate child, his widow and two intimate children. His estate is partitioned among those heirs by giving them their respective time.

The legitimate child gets one-half of the estate as his legitime which is regarded as his share as a legal heir Art 888, Civil Code).

The widow's legitime is one-fourth of the estate. That represents also her share as a legal heir (Art. 892, 1st sentence, Civil Code).

The remaining one-fourth of the estate, which is the free portion, goes to the illegitimate children in equal shares, as their legitime, Pursuant to the provision that 'the legitimate of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provoked that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied par., art. 895, Civil Code).

The rule in Santillon vs. Miranda, L-19281, June 30, 1965, 14 SCRA 563, that when the surviving spouse concurs with only one legitimate child, the spouse is entitled to one-half of the estate and the gets the other half, t to article 996 of the Civil Code, does not apply to the case because here intimate children concur with the surviving spouse and the intimate child.

In this case, to divide the estate between the surviving spouse and the ligitemate child that deprive the illegitimate children of their legitime.

So, the decendent's estate is distributed in the proportion of 1/2 for the legitimate child, 1/4 for the widow and 1/8 each for the two illegitimate children.

Also not of possible application to this case is the rule that the legal of an acknowledge natural child is 1/2 of the legitime of the legitimate child of that the of the spurious child is 2/5 of that of the of the intimate child or 4/5 of that of that of the acknowledged natural child.

The rule be applied because the estate is not sufficient to cover legitimes of all compulsory heirs. That is one of the flaws of the law of succession.

A situation as in the instant case may arise where the illegitimate children get less than their legitime.

With respect to the decendant's unpaid salary and the money value of his leave, the same are conjugal properties because of the rule that property "obtained by the or work, or as salary of the spouses, or either of them", is conjugal in character (Art. 153[2], Civil Code).

G.R. No. 140975, Promulgated December 8, 2000OFELIA HERNANDO BAGUNU, Petitioner. vs.PASTORA PIEDAD, Respondent.

VITUG, J.:On 28 August 1995, herein petitioner Ofelia Hernando Bagunu moved to intervene in Special Proceedings No. 3652, entitled "In the matter of the Intestate Proceedings of the Estate of Augusto H. Piedad," pending before the Regional Trial Court ("RTC"), Branch 117, of Pasay City. Asserting entitlement to a share of the estate of the late Augusto H. Piedad, petitioner assailed the finality of the order of the trial court awarding the entire estate to respondent Pastora Piedad contending that the proceedings were tainted with procedural infirmities, including an incomplete publications of the notice of hearing, lack of personal notice to the heirs and creditors, and irregularity in the disbursements of allowances and withdrawals by the administrator of the estate. The trial court denied the motion, prompting petitioners to raise her case to the Court of Appeals. Respondent sought the dismissal of the appeal on the thesis that the issues brought up on appeal only involving nothing else but questions of law to be raised before the Supreme Court by petition for review on certiorari in accordance with Rule 45 thereof and consistently with Circular 2-90 of the Court.

In a well-written resolution, the Court of Appeals belabored the distinctions between questions of law and questions of fact, thus:

"There is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts, and there is a question of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts. There is question of fact when the query necessarily invites calibration of the whole evidence considering mainly the credibility of witnesses, existence and relevance of specific surrounding circumstances and their relation to each other and to the whole and the probabilities of the situation."1Justice Eugenio S. Labitoria, speaking for the appellate court, ratiocinated that whether or not the RTC erred in denying the intervention considering (1) that the intervenor-appellant had a prima facie interest over the case (2) that the jurisdiction over the person of the proper parties was not acquired in view of the deficient publication or notice of hearing, and (3) that the proceedings had yet to be closed and terminated, were issues which did not qualify as "questions of fact" as to place the appeal within the jurisdiction of the appellate court; thus;

"The issues are evidently pure questions of law because their resolution are based on facts not in dispute. Admitted are the facts that intervenor-appellant is a collateral relative within the fifth degree of Augusto H. Piedad; the she is the daughter of the first cousin of Augusto H. Piedad; that as such, intervenor-appellant seek to inherit was published for three consecutive weeks in a newspaper of general circulation; that there was no order of closure of proceedings that has been issued by the intestate court; and that the intestate court has already issued an order for the transfer of the remaining estate of Augusto H. Piedad to petitioner-appellee.

"These facts are undisputed.

"In this case, there is no doubt nor difference that arise as to the truth or falsehood on alleged facts. The question as to whether intevenor-appellants as a collateral relative within the fifth civil degree, has legal interest in the intestate proceeding which would justify her intervention; the question as to whether the publication of notice of hearing made in this case is defective which would amount to lack of jurisdiction over the persons of the parties and the question as to whether the proceedings has already been terminated when the intestate court issued the order of transfer of the estate of Augusto H. Piedad to petitioner-appellee, in spite the absence of an order of closure of the intestate court, all call for the application and interpretation of the proper law is applicable on a certain undisputed state of facts.

"The resolution of the issues raised does not require the review of the evidence, nor the credibility of witnesses presented, nor the existence and relevance of specific surrounding circumstances. Resolution on the issues may be had even without going to examination of facts on record."2Still unsatisfied, petitioner contested the resolution of the appellate court in the instant petition for review on certiorari.

The Court finds no reversible error in the ruling of the appellate court. But let us set aside the alleged procedural decrepitude and take on the basic substantive issue. Specifically, can petitioner, a collateral relative of the fifth civil degree, inherit alongside respondent, a collateral relative of the third civil degree? Elsewise stated does the rule of proximity in intestate succession find application among collateral relatives?

Augusto H. Piedad without any direct descendants or ascendants. Respondent is the maternal aunt of the decedent, a third-degree relative of the decedent, while petitioner is the daughter of a first cousin of the deceased, or a fifth-degree relative of the decedent.

The various provisions of the Civil Code on succession embody an almost complete set of law to govern, either by will or by operation of law, the transmission of property, rights and obligations of a person upon his death. Each article is construed in congruity with, rather than in isolation of, the system set out by the Code.

The rule on proximity is a concept that favors the relatives nearest in degree to the decedent and excludes the more distant ones except when and to the extent that the right of representation can apply. Thus, Article 962 of the Civil Code provides:

"ART. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.

"Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines."

By right of representation, a more distant blood relative of a decedent is, by operation of law, "raised to the same place and degree" of relationship as that of a closer blood relative of the same decedent. The representative thereby steps into the shoes of the person he represents and succeeds, not from the latter, but from the person to whose estate the person represented would have succeeded.

"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 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."

"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 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."

In the direct line, right of representation is proper only in the descending, never in the ascending, line. In the collateral line, the right of representation may only take place in favor of the children of brothers or sisters of the decedent when such children survive with their uncles or aunts.

"ART. 972. The right of representation takes place in the direct descending line, but never in the ascending.

"In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood.

"ART. 974. Whenever there is succession by representation, the division of the estate shall be made per stripes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit."

"ART. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions."

The right of representation does not apply to "others collateral relatives within the fifth civil degree" (to which group both petitioner and respondent belong) who are sixth in the order of preference following, firstly, the legitimate children and descendants, secondly, the legitimate parents and ascendants, thirdly, the illegitimate children and descendants, fourthly, the surviving spouse, and fifthly, the brothers and sisters/nephews and nieces, fourth decedent. Among collateral relatives, except only in the case of nephews and nieces of the decedent concurring with their uncles or aunts, the rule of proximity, expressed in Article 962, aforequoted, of the Code, is an absolute rule. In determining the degree of relationship of the collateral relatives to the decedent, Article 966 of the Civil Code gives direction.

"Article 966. xxx

"In the collateral line, ascent is made to the common ancestor and then descent is made ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin and so forth."

Accordingly----

Respondent, being a relative within the third civil degree, of the late Augusto H. Piedad excludes petitioner, a relative of the fifth degree, from succeeding an intestato to the estate of the decedent.

The provisions of Article 1009 and Article 1010 of the Civil Code

"Article 1009, Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

"The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood."

"Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line." Invoked by petitioner do not at all support her cause. The law means only that among the other collateral relatives (the sixth in the line of succession), no preference or distinction shall be observed "by reason of relationship by the whole blood." In fine, a maternal aunt can inherit equally with a first cousin of the half blood but an uncle or an aunt, being a third-degree relative, excludes the cousins of the decedent, being in the fourth degree of relationship; the latter, in turn, would have priority in succession to a fifth-degree relative.1wphi1.ntWHEREFORE, the instant Petition is DENIED. No costs. SO ORDERED.

G.R. No. L-26699 March 16, 1976

BENITA SALAO, assisted by her husband, GREGORIO MARCELO; ALMARIO ALCURIZA, ARTURO ALCURIZA, OSCAR ALCURIZA and ANITA ALCURIZA, the latter two being minors are represented by guardian ad litem, ARTURO ALCURIZA, plaintiffs-appellants, vs.JUAN S. SALAO, later substituted by PABLO P. SALAO, Administrator of the Intestate of JUAN S. SALAO; now MERCEDES P. VDA. DE SALAO, ROBERTO P. SALAO, MARIA SALAO VDA. DE SANTOS, LUCIANA P. SALAO, ISABEL SALAO DE SANTOS, and PABLO P. SALAO, as successors-in-interest of the late JUAN S. SALAO, together with PABLO P. SALAO, Administrator, defendants-appellants.

AQUINO, J.:This litigation regarding a forty-seven-hectare fishpond located at Sitio Calunuran, Hermosa, Bataan involves the law of trusts and prescription. The facts are as follows:

The spouses Manuel Salao and Valentina Ignacio of Barrio Dampalit, Malabon, Rizal begot four children named Patricio, Alejandra, Juan (Banli) and Ambrosia. Manuel Salao died in 1885. His eldest son, Patricio, died in 1886 survived by his only child. Valentin Salao.

There is no documentary evidence as to what, properties formed part of Manuel Salao's estate, if any. His widow died on May 28, 1914. After her death, her estate was administered by her daughter Ambrosia.

It was partitioned extrajudicially in a deed dated December 29, 1918 but notarized on May 22, 1919 (Exh. 21). The deed was signed by her four legal heirs, namely, her three children, Alejandra, Juan and Ambrosia, and her grandson, Valentin Salao, in representation of his deceased father, Patricio.

The lands left by Valentina Ignacio, all located at Barrio Dampalit were as follows:

Nature of LandArea in

square meters

(1) One-half interest in a fishpond which she had inherited from her parents, Feliciano Ignacio and Damiana Mendoza, and the other half of which was owned by her co-owner, Josefa Sta. Ana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,700

(2) Fishpond inherited from her parents . . . . . . . . . . . . 7,418

(3) Fishpond inherited from her parents . . . . . . . . . . . . . 6,989

(4) Fishpond with a bodega for salt . . . . . . . . . . . . . . . . 50,469

(5) Fishpond with an area of one hectare, 12 ares and 5 centares purchased from Bernabe and Honorata Ignacio by Valentina Ignacio on November 9, 1895 with a bodega for salt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,205

(6) Fishpond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,000

(7) One-half interest in a fishpond with a total area of 10,424 square meters, the other half was owned by A. Aguinaldo . . . . . . . . . . . . . . . . . . . . . . . 5,217

(8) Riceland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,454

(9) Riceland purchased by Valentina Ignacio from Eduardo Salao on January 27, 1890 with a house and two camarins thereon . . . . . . . . . . . . . . . . . . 8,065

(10) Riceland in the name of Ambrosia Salao, with an area of 11,678 square meters, of which 2,173 square meters were sold to Justa Yongco . . . . . . . . . .9,505

TOTAL . . . . . . . . . . . . .. 179,022 square

meters

To each of the legal heirs of Valentina Ignacio was adjudicated a distributive share valued at P8,135.25. In satisfaction of his distributive share, Valentin Salao (who was then already forty-eight years old) was given the biggest fishpond with an area of 50,469 square meters, a smaller fishpond with an area of 6,989 square meters and the riceland with a net area of 9,905 square meters. Those parcels of land had an aggregate appraised value of P13,501 which exceeded Valentin's distributive share. So in the deed of partition he was directed to pay to his co-heirs the sum of P5,365.75. That arrangement, which was obviously intended to avoid the fragmentation of the lands, was beneficial to Valentin.

In that deed of partition (Exh. 21) it was noted that "desde la muerte de Valentina Ignacio y Mendoza, ha venido administrando sus bienes la referida Ambrosia Salao" "cuya administracion lo ha sido a satisfaccion de todos los herederos y por designacion los mismos". It was expressly stipulated that Ambrosia Salao was not obligated to render any accounting of her administration "en consideracion al resultado satisfactorio de sus gestiones, mejoradas los bienes y pagodas por ella las contribusiones (pages 2 and 11, Exh. 21).

By virtue of the partition the heirs became "dueos absolutos de sus respectivas propiedadas, y podran inmediatamente tomar posesion de sus bienes, en la forma como se han distribuido y llevado a cabo las adjudicaciones" (page 20, Exh. 21).

The documentary evidence proves that in 1911 or prior to the death of Valentina Ignacio her two children, Juan Y. Salao, Sr. and Ambrosia Salao, secured a Torrens title, OCT No. 185 of the Registry of Deeds of Pampanga, in their names for a forty-seven-hectare fishpond located at Sitio Calunuran, Lubao, Pampanga (Exh. 14). It is also known as Lot No. 540 of the Hermosa cadastre because that part of Lubao later became a part of Bataan.

The Calunuran fishpond is the bone of contention in this case.

Plaintiffs' theory is that Juan Y. Salao, Sr. and his sister Ambrosia had engaged in the fishpond business. Where they obtained the capital is not shown in any documentary evidence. Plaintiffs' version is that Valentin Salao and Alejandra Salao were included in that joint venture, that the funds used were the earnings of the properties supposedly inherited from Manuel Salao, and that those earnings were used in the acquisition of the Calunuran fishpond. There is no documentary evidence to support that theory.

On the other hand, the defendants contend that the Calunuran fishpond consisted of lands purchased by Juan Y. Salao, Sr. and Ambrosia Salao in 1905, 1906, 1907 and 1908 as, shown in their Exhibits 8, 9, 10 and 13. But this point is disputed by the plaintiffs.

However, there can be no controversy as to the fact that after Juan Y. Salao, Sr. and Ambrosia Salao secured a Torrens title for the Calunuran fishpond in 1911 they exercised dominical rights over it to the exclusion of their nephew, Valentin Salao.

Thus, on December 1, 1911 Ambrosia Salao sold under pacto de retro for P800 the Calunuran fishpond to Vicente Villongco. The period of redemption was one year. In the deed of sale (Exh19) Ambrosia confirmed that she and her brother Juan were the dueos proindivisos of the said pesqueria. On December 7, 1911 Villongco, the vendee a retro, conveyed the same fishpond to Ambrosia by way of lease for an anual canon of P128 (Exh. 19-a).

After the fishpond was redeemed from Villongco or on June 8, 1914 Ambrosia and Juan sold it under pacto de retro to Eligio Naval for the sum of P3,360. The period of redemption was also one year (Exh. 20). The fishpond was later redeemed and Naval reconveyed it to the vendors a retro in a document dated October 5, 1916 (Exh. 20-a).

The 1930 survey shown in the computation sheets of the Bureau of Lands reveals that the Calunuran fishpond has an area of 479,205 square meters and that it was claimed by Juan Salao and Ambrosia Salao, while the Pinanganacan fishpond (subsequently acquired by Juan and Ambrosia) has an area of 975,952 square meters (Exh. 22).

Likewise, there is no controversy as to the fact that on May 27, 1911 Ambrosia Salao bought for four thousand pesos from the heirs of Engracio Santiago a parcel of swampland planted to bacawan and nipa with an area of 96 hectares, 57 ares and 73 centares located at Sitio Lewa, Barrio Pinanganacan, Lubao, Pampanga (Exh. 17-d).

The record of Civil Case No. 136, General Land Registration Office Record No. 12144, Court of First Instance of Pampanga shows that Ambrosia Salao and Juan Salao filed an application for the registration of that land in their names on January 15, 1916. They alleged in their petition that "han adquirido dicho terreno por partes iguales y por la compra a los herederos del finado, Don Engracio Santiago" (Exh. 17-a).

At the hearing on October 26, 1916 before Judge Percy M. Moir, Ambrosia testified for the applicants. On that same day Judge Moir rendered a decision, stating, inter alia, that the heirs of Engracio Santiago had sold the land to Ambrosia Salao and Juan Salao. Judge Moir "ordena la adjudicacion y registro del terreno solicitado a nombre de Juan Salao, mayor de edad y de estado casado y de su esposa Diega Santiago y Ambrosia Salao, de estado soltera y mayor de edad, en participaciones iguales" (Exh. 17-e).

On November 28, 1916 Judge Moir ordered the issuance of a decree for the said land. The decree was issued on February 21, 1917. On March 12, 1917 Original Certificate of Title No. 472 of the Registry of Deeds of Pampanga was issued in the names of Juan Salao and Ambrosia Salao.

That Pinanganacan or Lewa fishpond later became Cadastral Lot No. 544 of the Hermosa cadastre (Exh. 23). It adjoins the Calunuran fishpond (See sketch, Exh. 1).

Juan Y. Salao, Sr. died on November 3, 1931 at the age of eighty years (Exh. C). His nephew, Valentin Salao, died on February 9, 1933 at the age of sixty years according to the death certificate (Exh. A. However, if according to Exhibit 21, he was forty-eight years old in 1918, he would be sixty-three years old in 1933).

The intestate estate of Valentin Salao was partitioned extrajudicially on December 28, 1934 between his two daughters, Benita Salao-Marcelo and Victorina Salao-Alcuriza (Exh. 32). His estate consisted of the two fishponds which he had inherited in 1918 from his grandmother, Valentina Ignacio.

If it were true that he had a one-third interest in the Calunuran and Lewa fishponds with a total area of 145 hectares registered in 1911 and 1917 in the names of his aunt and uncle, Ambrosia Salao and Juan Y. Salao, Sr., respectively, it is strange that no mention of such interest was made in the extrajudicial partition of his estate in 1934.

It is relevant to mention that on April 8, 1940 Ambrosia Salao donated to her grandniece, plaintiff Benita Salao, three lots located at Barrio Dampalit with a total area of 5,832 square meters (Exit. L). As donee Benita Salao signed the deed of donation.

On that occasion she could have asked Ambrosia Salao to deliver to her and to the children of her sister, Victorina, the Calunuran fishpond if it were true that it was held in trust by Ambrosia as the share of Benita's father in the alleged joint venture.

But she did not make any such demand. It was only after Ambrosia Salao's death that she thought of filing an action for the reconveyance of the Calunuran fishpond which was allegedly held in trust and which had become the sole property of Juan Salao y Santiago (Juani).

On September 30, 1944 or during the Japanese occupation and about a year before Ambrosia Salao's death on September 14, 1945 due to senility (she was allegedly eighty-five years old when she died), she donated her one-half proindiviso share in the two fishponds in question to her nephew, Juan S. Salao, Jr. (Juani) At that time she was living with Juani's family. He was already the owner of the the other half of the said fishponds, having inherited it from his father, Juan Y. Salao, Sr. (Banli) The deed of denotion included other pieces of real property owned by Ambrosia. She reserved for herself the usufruct over the said properties during her lifetime (Exh. 2 or M).

The said deed of donation was registered only on April 5, 1950 (page 39, Defendants' Record on Appeal).

The lawyer of Benita Salao and the Children of Victorina Salao in a letter dated January 26, 1951 informed Juan S. Salao, Jr. that his clients had a one-third share in the two fishponds and that when Juani took possession thereof in 1945, he refused to give Benita and Victorina's children their one-third share of the net fruits which allegedly amounted to P200,000 (Exh. K).

Juan S. Salao, Jr. in his answer dated February 6, 1951 categorically stated that Valentin Salao did not have any interest in the two fishponds and that the sole owners thereof his father Banli and his aunt Ambrosia, as shown in the Torrens titles issued in 1911 and 1917, and that he Juani was the donee of Ambrosia's one-half share (Exh. K-1).

Benita Salao and her nephews and niece filed their original complaint against Juan S. Salao, Jr. on January 9, 1952 in the Court of First Instance of Bataan (Exh. 36). They amended their complaint on January 28, 1955. They asked for the annulment of the donation to Juan S. Salao, Jr. and for the reconveyance to them of the Calunuran fishpond as Valentin Salao's supposed one-third share in the 145 hectares of fishpond registered in the names of Juan Y. Salao, Sr. and Ambrosia Salao.

Juan S. Salao, Jr. in his answer pleaded as a defense the indefeasibility of the Torrens title secured by his father and aunt. He also invoked the Statute of Frauds, prescription and laches. As counter-claims, he asked for moral damages amounting to P200,000, attorney's fees and litigation expenses of not less than P22,000 and reimbursement of the premiums which he has been paying on his bond for the lifting of the receivership Juan S. Salao, Jr. died in 1958 at the age of seventy-one. He was substituted by his widow, Mercedes Pascual and his six children and by the administrator of his estate.

In the intestate proceedings for the settlement of his estate the two fishponds in question were adjudicated to his seven legal heirs in equal shares with the condition that the properties would remain under administration during the pendency of this case (page 181, Defendants' Record on Appeal).

After trial the trial court in its decision consisting of one hundred ten printed pages dismissed the amended complaint and the counter-claim. In sixty-seven printed pages it made a laborious recital of the testimonies of plaintiffs' fourteen witnesses, Gregorio Marcelo, Norberto Crisostomo, Leonardo Mangali Fidel de la Cruz, Dionisio Manalili, Ambrosio Manalili, Policarpio Sapno, Elias Manies Basilio Atienza, Benita Salao, Emilio Cagui Damaso de la Pea, Arturo Alcuriza and Francisco Buensuceso, and the testimonies of defendants' six witnesses, Marcos Galicia, Juan Galicia, Tiburcio Lingad, Doctor Wenceslao Pascual, Ciriaco Ramirez and Pablo P. Salao. (Plaintiffs presented Regino Nicodemus as a fifteenth witness, a rebuttal witness).

The trial court found that there was no community of property among Juan Y. Salao, Sr., Ambrosia Salao and Valentin Salao when the Calunuran and Pinanganacan (Lewa) lands were acquired; that a co-ownership over the real properties of Valentina Ignacio existed among her heirr after her death in 1914; that the co-ownership was administered by Ambrosia Salao and that it subsisted up to 1918 when her estate was partitioned among her three children and her grandson, Valentin Salao.

The trial court surmised that the co-ownership which existed from 1914 to 1918 misled the plaintiffs and their witnesses and caused them to believe erroneously that there was a co-ownership in 1905 or thereabouts. The trial court speculated that if valentin had a hand in the conversion into fishponds of the Calunuran and Lewa lands, he must have done so on a salary or profit- sharing basis. It conjectured that Valentin's children and grandchildren were given by Ambrosia Salao a portion of the earnings of the fishponds as a reward for his services or because of Ambrosia's affection for her grandnieces.

The trial court rationalized that Valentin's omission during his lifetime to assail the Torrens titles of Juan and Ambrosia signified that "he was not a co-owner" of the fishponds. It did not give credence to the testimonies of plaintiffs' witnesses because their memories could not be trusted and because no strong documentary evidence supported the declarations. Moreover, the parties involved in the alleged trust were already dead.

It also held that the donation was validly executed and that even if it were void Juan S. Salao, Jr., the donee, would nevertheless be the sole legal heir of the donor, Ambrosia Salao, and would inherit the properties donated to him.

Both parties appealed. The plaintiffs appealed because their action for reconveyance was dismissed. The defendants appealed because their counterclaim for damages was dismissed.

The appeals, which deal with factual and legal issues, were made to the Court of Appeals. However, as the amounts involved exceed two hundred thousand pesos, the Court of Appeals elevated the case to this Court in its resolution of Octoter 3, 1966 (CA-G.R. No. 30014-R).

Plaintiffs' appeal. An appellant's brief should contain "a subject index index of the matter in the brief with a digest of the argument and page references" to the contents of the brief (Sec. 16 [a], Rule 46, 1964 Rules of Court; Sec. 17, Rule 48, 1940 Rules of Court).

The plaintiffs in their appellants' brief consisting of 302 pages did not comply with that requirement. Their statements of the case and the facts do not contain "page references to the record" as required in section 16[c] and [d] of Rule 46, formerly section 17, Rule 48 of the 1940 Rules of Court.

Lawyers for appellants, when they prepare their briefs, would do well to read and re-read section 16 of Rule 46. If they comply strictly with the formal requirements prescribed in section 16, they might make a competent and luminous presentation of their clients' case and lighten the burden of the Court.

What Justice Fisher said in 1918 is still true now: "The pressure of work upon this Court is so great that we cannot, in justice to other litigants, undertake to make an examination of the voluminous transcript of the testimony (1,553 pages in this case, twenty-one witnesses having testified), unless the attorneys who desire us to make such examination have themselves taken the trouble to read the record and brief it in accordance with our rules" (Palara vs. Baguisi 38 Phil. 177, 181). As noted in an old case, this Court decides hundreds of cases every year and in addition resolves in minute orders an exceptionally considerable number of petitions, motions and interlocutory matters (Alzua and Arnalot vs. Johnson, 21 Phil. 308, 395; See In re Almacen, L-27654, February 18, 1970, 31 SCRA 562, 573).

Plaintiffs' first assignment of error raised a procedural issue. In paragraphs 1 to 14 of their first cause of action they made certain averments to establish their theory that Valentin Salao had a one-third interest in the two fishponds which were registrered in the names of Juan Y. Salao, Sr. (Banli) and Ambrosia Salao.

Juan S. Salao, Jr. (Juani) in his answer "specifically" denied each and all the allegations" in paragraphs I to 10 and 12 of the first cause of action with the qualification that Original certificates of Title Nos. 185 and 472 were issued "more than 37 years ago" in the names of Juan (Banli) and Ambrosia under the circumstances set forth in Juan S. Salao, Jr.'s "positive defenses" and "not under the circumstances stated in the in the amended complaint".

The plaintiffs contend that the answer of Juan S. Salao, Jr. was in effect tin admission of the allegations in their first cause of action that there was a co-ownership among Ambrosia, Juan, AIejandra and Valentin, all surnamed Salao, regarding the Dampalit property as early as 1904 or 1905; that the common funds were invested the acquisition of the two fishponds; that the 47-hectare Calunuran fishpond was verbally adjudicated to Valentin Salao in the l919 partition and that there was a verbal stipulation to to register "said lands in the name only of Juan Y. Salao".

That contention is unfounded. Under section 6, Rule 9 of the 1940 of Rules of Court the answer should "contain either a specific dinial a statement of matters in accordance of the cause or causes of action asserted in the complaint". Section 7 of the same rule requires the defendant to "deal specificaly with each material allegation of fact the truth of wihich he does not admit and, whenever practicable shall set forth the substance of the matters which he will rely upon to support his denial". "Material averments in the complaint, other than those as to the amount damage, shall be deemed admitted when specifically denied" (Sec. 8). "The defendant may set forth set forth by answer as many affirmative defenses as he may have. All grounds of defenses as would raise issues of fact not arising upon the preceding pleading must be specifically pleaded" (Sec. 9).

What defendant Juan S. Salao, Jr. did in his answer was to set forth in his "positive defenses" the matters in avoidance of plaintiffs' first cause of action which which supported his denials of paragraphs 4 to 10 and 12 of the first cause of action. Obviously, he did so because he found it impracticable to state pierceneal his own version as to the acquisition of the two fishponds or to make a tedious and repetitious recital of the ultimate facts contradicting allegations of the first cause of action.

We hold that in doing so he substantially complied with Rule 9 of the 1940 Rules of Court. It may be noted that under the present Rules of Court a "negative defense is the specific denial of t the material fact or facts alleged in the complaint essential to plaintiff's cause of causes of action". On the other hand, "an affirmative defense is an allegation of new matter which, while admitting the material allegations of the complaint, expressly or impliedly, would nevertheless prevent or bar recovery by the plaintiff." Affirmative defenses include all matters set up "by of confession and avoidance". (Sec. 5, Rule 6, Rules of Court).

The case of El Hogar Filipino vs. Santos Investments, 74 Phil. 79 and similar cases are distinguishable from the instant case. In the El Hogar case the defendant filed a laconic answer containing the statement that it denied "generally ans specifically each and every allegation contained in each and every paragraph of the complaint". It did not set forth in its answer any matters by way of confession and avoidance. It did not interpose any matters by way of confession and avoidance. It did not interpose any affirmative defenses.

Under those circumstances, it was held that defendant's specific denial was really a general denial which was tantamount to an admission of the allegations of the complaint and which justified judgment on the pleadings. That is not the situation in this case.

The other nine assignments of error of the plaintiffs may be reduced to the decisive issue of whether the Calunuran fishpond was held in trust for Valentin Salao by Juan Y. Salao, Sr. and Ambrosia Salao. That issue is tied up with the question of whether plaintiffs' action for reconveyance had already prescribed.

The plaintiffs contend that their action is "to enforce a trust which defendant" Juan S. Salao, Jr. allegedly violated. The existence of a trust was not definitely alleged in plaintiffs' complaint. They mentioned trust for the first time on page 2 of their appelants' brief.

To determine if the plaintiffs have a cause of action for the enforcement of a trust, it is necessary to maek some exegesis on the nature of trusts (fideicomosis). Trusts in Anglo-American jurisprudence were derived from the fideicommissa of the Roman law (Government of the Philippine Islands vs. Abadilla, 46 Phil. 642, 646).

"In its technical legal sense, a trust is defined as the right, enforceable solely in equity, to the beneficial enjoyment of property, the legal title to which is vested in another, but the word 'trust' is frequently employed to indicate duties, relations, and responsibilities which are not strictly technical trusts" (89 C.J.S. 712).

A person who establishes a trust is called the trustor; one in whom confidence is reposed as regards property for the benefit of another person is known as the trustee; and the person for whose benefit the trust has been created is referred to as the beneficiary" (Art. 1440, Civil Code). There is a fiduciary relation between the trustee and the cestui que trust as regards certain property, real, personal, money or choses in action (Pacheco vs. Arro, 85 Phil. 505).

"Trusts are either express or implied. Express trusts are created by the intention of the trustor or of the parties. Implied trusts come into being by operation of law" (Art. 1441, Civil Code). "No express trusts concerning an immovable or any interest therein may be proven by parol evidence. An implied trust may be proven by oral evidence" (Ibid, Arts. 1443 and 1457).

"No particular words are required for the creation of an express trust, it being sufficient that a trust is clearly intended" (Ibid, Art. 1444; Tuason de Perez vs. Caluag, 96 Phil. 981; Julio vs. Dalandan, L-19012, October 30, 1967, 21 SCRA 543, 546). "Express trusts are those which are created by the direct and positive acts of the parties, by some writing or deed, or will, or by words either expressly or impliedly evincing an intention to create a trust" (89 C.J.S. 72).

"Implied trusts are those which, without being expressed, are deducible from the nature of the transaction as matters of intent, or which are superinduced on the transaction by operation of law as matter of equity, independently of the particular intention of the parties" (89 C.J.S. 724). They are ordinarily subdivided into resulting and constructive trusts (89 C.J.S. 722).

"A resulting trust. is broadly defined as a trust which is raised or created by the act or construction of law, but in its more restricted sense it is a trust raised by implication of law and presumed to have been contemplated by the parties, the intention as to which is to be found in the nature of their transaction, but not expressed in the deed or instrument of conveyance (89 C.J.S. 725). Examples of resulting trusts are found in articles 1448 to 1455 of the Civil Code. (See Padilla vs. Court of Appeals, L-31569, September 28, 1973, 53 SCRA 168, 179; Martinez vs. Grao 42 Phil. 35).

On the other hand, a constructive trust is -a trust "raised by construction of law, or arising by operation of law". In a more restricted sense and as contra-distinguished from a resulting trust, a constructive trust is "a trust not created by any words, either expressly or impliedly evincing a direct intension to create a trust, but by the construction of equity in order to satisfy the demands of justice." It does not arise "by agreement or intention, but by operation of law." (89 C.J.S. 726-727).

Thus, "if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes" (Art. 1456, Civil Code).

Or "if a person obtains legal title to property by fraud or concealment, courts of equity will impress upon the title a so-called constructive trust in favor of the defrauded party". Such a constructive trust is not a trust in the technical sense. (Gayondato vs. Treasurer of the P. I., 49 Phil. 244).

Not a scintilla of documentary evidence was presented by the plaintiffs to prove that there was an express trust over the Calunuran fishpond in favor of Valentin Salao. Purely parol evidence was offered by them to prove the alleged trust. Their claim that in the oral partition in 1919 of the two fishponds the Calunuran fishpond was assigned to Valentin Salao is legally untenable.

It is legally indefensible because the terms of article 1443 of the Civil Code (already in force when the action herein was instituted) are peremptory and unmistakable: parol evidence cannot be used to prove an express trust concerning realty.

Is plaintiffs' massive oral evidence sufficient to prove an implied trust, resulting or constructive, regarding the two fishponds?

Plaintiffs' pleadings and evidence cannot be relied upon to prove an implied trust. The trial court's firm conclusion that there was no community of property during the lifetime of Valentina; Ignacio or before 1914 is substantiated by defendants' documentary evidence. The existence of the alleged co-ownership over the lands supposedly inherited from Manuel Salao in 1885 is the basis of plaintiffs' contention that the Calunuran fishpond was held in trust for Valentin Salao.

But that co-ownership was not proven by any competent evidence. It is quite improbable because the alleged estate of Manuel Salao was likewise not satisfactorily proven. The plaintiffs alleged in their original complaint that there was a co-ownership over two hectares of land left by Manuel Salao. In their amended complaint, they alleged that the co-ownership was over seven hectares of fishponds located in Barrio Dampalit, Malabon, Rizal. In their brief they alleged that the fishponds, ricelands and saltbeds owned in common in Barrio Dampalit had an area of twenty-eight hectares, of which sixteen hectares pertained to Valentina Ignacio and eleven hectares represented Manuel Salao's estate.

They theorized that the eleven hectares "were, and necessarily, the nucleus, nay the very root, of the property now in litigation (page 6, plaintiffs-appellants' brief). But the eleven hectares were not proven by any trustworthy evidence. Benita Salao's testimony that in 1918 or 1919 Juan, Ambrosia, Alejandra and Valentin partitioned twenty-eight hectares of lands located in Barrio Dampalit is not credible. As noted by the defendants, Manuel Salao was not even mentioned in plaintiffs' complaints. The 1919 partition of Valentina Ignacio's estate covered about seventeen hectares of fishponds and ricelands (Exh. 21). If at the time that partition was made there were eleven hectares of land in Barrio Dampalit belonging to Manuel Salao, who died in 1885, those eleven hectares would have been partitioned in writing as in the case of the seventeen hectares belonging to Valentina Ignacio's estate.

It is incredible that the forty-seven-hectare Calunuran fishpond would be adjudicated to Valentin Salao mere by by word of mouth. Incredible because for the partition of the seventeen hectares of land left by Valentina Ignacio an elaborate "Escritura de Particion" consisting of twenty-two pages had to be executed by the four Salao heirs. Surely, for the partition of one hundred forty-five hectares of fishponds among three of the same Salao heirs an oral adjudication would not have sufficed.

The improbability of the alleged oral partition becomes more evident when it is borne in mind that the two fishponds were registered land and "the act of registration" is "the operative act" that conveys and affects the land (Sec. 50, Act No. 496). That means that any transaction affecting the registered land should be evidenced by a registerable deed. The fact that Valentin Salao and his successors-in-interest, the plaintiffs, never bothered for a period of nearly forty years to procure any documentary evidence to establish his supposed interest ox participation in the two fishponds is very suggestive of the absence of such interest.

The matter may be viewed from another angle. As already stated, the deed of partition for Valentina Ignacio's estate wag notarized in 1919 (Exh. 21). The plaintiffs assert that the two fishponds were verbally partitioned also in 1919 and that the Calunuran fishpond was assigned to Valentin Salao as his share.

Now in the partition of Valentina Ignacio's estate, Valentin was obligated to pay P3,355.25 to Ambrosia Salao. If, according to the plaintiffs, Ambrosia administered the two fishponds and was the custodian of its earnings, then it could have been easily stipulated in the deed partitioning Valentina Ignacio's estate that the amount due from Valentin would just be deducted by Ambrosia from his share of the earnings of the two fishponds. There was no such stipulation. Not a shred of documentary evidence shows Valentin's participation in the two fishponds.

The plaintiffs utterly failed to measure up to the yardstick that a trust must be proven by clear, satisfactory and convincing evidence. It cannot rest on vague and uncertain evidence or on loose, equivocal or indefinite declarations (De Leon vs. Molo-Peckson, 116 Phil. 1267, 1273).

Trust and trustee; establishment of trust by parol evidence; certainty of proof. Where a trust is to be established by oral proof, the testimony supporting it must be sufficiently strong to prove the right of the alleged beneficiary with as much certainty as if a document proving the trust were shown. A trust cannot be established, contrary to the recitals of a Torrens title, upon vague and inconclusive proof. (Syllabus, Suarez vs. Tirambulo, 59 Phil. 303).

Trusts; evidence needed to establish trust on parol testimony. In order to establish a trust in real property by parol evidence, the proof should be as fully convincing as if the act giving rise to the trust obligation were proven by an authentic document. Such a trust cannot be established upon testimony consisting in large part of insecure surmises based on ancient hearsay. (Syllabus, Santa Juana vs. Del Rosario 50 Phil. 110).

The foregoing rulings are good under article 1457 of the Civil Code which, as already noted, allows an implied trust to be proven by oral evidence. Trustworthy oral evidence is required to prove an implied trust because, oral evidence can be easily fabricated.

On the other hand, a Torrens title is generally a conclusive of the ownership of the land referred to therein (Sec. 47, Act 496). A strong presumption exists. that Torrens titles were regularly issued and that they are valid. In order to maintain an action for reconveyance, proof as to the fiduciary relation of the parties must be clear and convincing (Yumul vs. Rivera and Dizon, 64 Phil. 13, 17-18).

The real purpose of the Torrens system is, to quiet title to land. "Once a title is registered, the owner may rest secure, without the necessity of waiting in the portals of the court, or sitting in the mirador de su casa, to avoid the possibility of losing his land" (Legarda and Prieto vs. Saleeby, 31 Phil. 590, 593).

There was no resulting trust in this case because there never was any intention on the part of Juan Y. Salao, Sr., Ambrosia Salao and Valentin Salao to create any trust. There was no constructive trust because the registration of the two fishponds in the names of Juan and Ambrosia was not vitiated by fraud or mistake. This is not a case where to satisfy the demands of justice it is necessary to consider the Calunuran fishpond " being held in trust by the heirs of Juan Y. Salao, Sr. for the heirs of Valentin Salao.

And even assuming that there was an implied trust, plaintiffs' action is clearly barred by prescription or laches (Ramos vs. Ramos, L-19872, December 3, 1974, 61 SCRA 284; Quiniano vs. Court of Appeals, L-23024, May 31, 1971, 39 SCRA 221; Varsity Hills, Inc. vs. Navarro, 9, February 29, 1972, 43 SCRA 503; Alzona vs. Capunitan and Reyes, 114 Phil. 377).

Under Act No. 190, whose statute of limitation would apply if there were an implied trust in this case, the longest period of extinctive prescription was only ten year (Sec. 40; Diaz vs. Gorricho and Aguado, 103 Phil. 261, 266).

The Calunuran fishpond was registered in 1911. The written extrajudicial demand for its reconveyance was made by the plaintiffs in 1951. Their action was filed in 1952 or after the lapse of more than forty years from the date of registration. The plaintiffs and their predecessor-in-interest, Valentin Salao, slept on their rights if they had any rights at all. Vigilanti prospiciunt jura or the law protects him who is watchful of his rights (92 C.J.S. 1011, citing Esguerra vs. Tecson, 21 Phil. 518, 521).

"Undue delay in the enforcement of a right is strongly persuasive of a lack of merit in the claim, since it is human nature for a person to assert his rights most strongly when they are threatened or invaded". "Laches or unreasonable delay on the part of a plaintiff in seeking to enforce a right is not only persuasive of a want of merit but may, according to the circumstances, be destructive of the right itself." (Buenaventura vs. David, 37 Phil. 435, 440-441).

Having reached the conclusion that the plaintiffs are not entitled to the reconveyance of the Calunuran fishpond, it is no longer n to Pass upon the validity of the donation made by Ambrosia Salao to Juan S. Salao, Jr. of her one-half share in the two fishponds The plaintiffs have no right and personality to assil that donation.

Even if the donation were declared void, the plaintiffs would not have any successional rights to Ambrosia's share. The sole legal heir of Ambrosia was her nephew, Juan, Jr., her nearest relative within the third degree. Valentin Salao, if living in 1945 when Ambrosia died, would have been also her legal heir, together with his first cousin, Juan, Jr. (Juani). Benita Salao, the daughter of Valentin, could not represent him in the succession to the estate of Ambrosia since in the collateral line, representation takes place only in favor of the children of brothers or sisters whether they be of the full or half blood is (Art 972, Civil Code). The nephew excludes a grandniece like Benita Salao or great-gandnephews like the plaintiffs Alcuriza (Pavia vs. Iturralde 5 Phil. 176).

The trial court did not err in dismissing plaintiffs' complaint.

Defendants' appeal. The defendants dispute the lower court's finding that the plaintiffs filed their action in good faith. The defendants contend that they are entitled to damages because the plaintiffs acted maliciously or in bad faith in suing them. They ask for P25,000 attorneys fees and litigation expenses and, in addition, moral damages.

We hold that defemdamts' appeal is not meritorious. The record shows that the plaintiffs presented fifteen witnesses during the protracted trial of this case which lasted from 1954 to 1959. They fought tenaciously. They obviously incurred considerable expenses in prosecuting their case. Although their causes of action turned out to be unfounded, yet the pertinacity and vigor with which they pressed their claim indicate their sincerity and good faith.

There is the further consideration that the parties were descendants of common ancestors, the spouses Manuel Salao and Valentina Ignacio, and that plaintiffs' action was based on their honest supposition that the funds used in the acquisition of the lands in litigation were earnings of the properties allegedly inherited from Manuel Salao.

Considering those circumstances, it cannot be concluded with certitude that plaintiffs' action was manifestly frivolous or was primarily intended to harass the defendants. An award for damages to the defendants does not appear to be just and proper.

The worries and anxiety of a defendant in a litigation that was not maliciously instituted are not the moral damages contemplated in the law (Solis & Yarisantos vs. Salvador, L-17022, August 14, 1965, 14 SCRA 887; Ramos vs. Ramos, supra). The instant case is not among the cases mentioned in articles 2219 and 2220 of the Civil Code wherein moral damages may be recovered. Nor can it be regarded as analogous to any of the cases mentioned in those articles.

The adverse result of an action does not per se make the act wrongful and subject the actor to the payment of moral damages. The law could not have meant to impose a penalty on the right to litigate; such right is so precious that moral damages may not be charged on those who may exercise it erroneously. (Barreto vs. Arevalo, 99 Phil. 771. 779).

The defendants invoke article 2208 (4) (11) of the Civil Code which provides that attorney's fees may be recovered "in case of a clearly unfounded civil action or proceeding against the plaintiff" (defendant is a plaintiff in his counterclaim) or "in any other case where the court deems it just and equitable" that attorney's fees should he awarded.

But once it is conceded that the plaintiffs acted in good faith in filing their action there would be no basis for adjudging them liable to the defendants for attorney's fees and litigation expenses (See Rizal Surety & Insurance Co., Inc. vs. Court of Appeals, L-23729, May 16, 1967, 20 SCRA 61).

It is not sound public policy to set a premium on the right to litigate. An adverse decision does not ipso facto justify the award of attorney's fees to the winning party (Herrera vs. Luy Kim Guan, 110 Phil. 1020, 1028; Heirs of Justiva vs. Gustilo, 61 O. G. 6959).

The trial court's judgment is affirmed. No pronouncement as to costs. SO ORDERED.

G.R. No. L-17759December 17, 1962ISABEL V. SAGUINSIN, petitioner-appellant, vs.DIONISIO LINDAYAG, ET AL., oppositors-appellees.

DIZON, J.:On November 10, 1959 Maria V. Lindayag died intestate in Olongapo, Zambales. On May 27, 1960 her sister, Isabel V. Saguinsin filed with the Court of First Instance of said province a verified petition for the issuance in her favor of letters of administration over the estate of said deceased, alleging, among other things, that the latter left real and personal properties situated in the Provinces of Zambales and Bulacan worth approximately P100,000.00; that the names, ages and residences of her surviving heirs were: (1) Dionisio Lindayag, 60 years of age, surviving husband, residing at Olongapo, Zambales, (2) Isabel V. Saguinsin 54 years of age, sister of the deceased, residing at Hagonoy, Bulacan (3) Aurea V. Sacdalan, 46 years of age, sister of the deceased, and (4) Ines V. Calayag, 70 years of age, sister of the deceased, both residing at Paombong, Bulacan; and that, as far as petitioner knew, the decedent left no debts at the time of her death.

On June 21, 1960 Dionisio V. Lindayag, the surviving spouse, in his behalf and in representation of the minors Jesus, Concepcion, and Catherine, all surnamed Lindayag, filed a motion to dismiss the petition on the ground lack of interest in the es