Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 6878 September 13, 1913

MARCELINA EDROSO, petitioner-appellant, vs.PABLO and BASILIO SABLAN, opponents-appellees.

Francisco Dominguez for appellant.Crispin Oben for appellees.

ARELLANO, C.J.:

The subject matter of this appeal is the registration of certain property classified as required by law to be reserved. Marcelina Edroso applied for registration and issuance of title to two parcels of land situated in the municipality of Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other 1 hectare 6 ares and 26 centares. Two applications were filed, one for each parcel, but both were heard and decided in a single judgment.

Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they had a son named Pedro, who was born on August 1, 1881, and who at his father's death inherited the two said parcels. Pedro also died on July 15, 1902, unmarried and without issue and by this decease the two parcels of land passed through inheritance to his mother, Marcelina Edroso. Hence the hereditary title whereupon is based the application for registration of her ownership.

Two legitimate brothers of Victoriano Sablan that is, two uncles german of Pedro Sablan appeared in the case to oppose the registration, claiming one of two things: Either that the registration be denied, "or that if granted to her the right reserved by law to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.)

The Court of Land Registration denied the registration and the application appealed through a bill of exceptions.

Registration was denied because the trial court held that the parcels of land in question partake of the nature of property required by law to be reserved and that in such a case application could only be presented jointly in the names of the mother and the said two uncles of Pedro Sablan.

The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the land which are the subject matter of the application are required by law to be reserved a contention we regard as indefensible.

Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been adjudicated to him in the partition of hereditary property had between him and his brothers. These are admitted facts.

A very definite conclusions of law is that the hereditary title is one without a valuable consideration [gratuitous title], and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles german are within the third degree of blood relationship.

The ascendant who inherits from his descendant property which the latter acquired without a valuable consideration from another ascendant, or from a brother or sister, is under obligation to reserve what he has acquired by operation of law for the relatives who are within the third degree and belong to the line whence the property proceeded. (Civil Code, art. 811.)

Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which he had acquired without a valuable consideration that is, by inheritance from another ascendant, his father Victoriano. Having acquired them by operation of law, she is obligated to relatives within the third degree and belong to the line of Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature property required by law to be reserved is therefore in accordance with the law.

But the appellant contends that it is not proven that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is required by law to reserved.

The appellees justly argue that this defense was not alleged or discussed in first instance, but only herein. Certainly, the allegation in first instance was merely that "Pedro Sablan acquired the property in question in 1882, before the enforcement of the Civil Code, which establishes the alleged right required by law to be reserved, of which the opponents speak; hence, prescription of the right of action; and finally, opponents' renunciation of their right, admitting that it existed and that they had it" (p. 49).

However that be, it is not superflous to say, although it may be unnecessary, that the applicant inherited the two parcels of land from her son Pedro, who died "unmarried and without issue." The trial court so held as a conclusion of fact, without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his mother became his heir by virtue of her right to her son's legal portion under article 935 of the Civil Code:

In the absence of legitimate children and descendants of the deceased, his ascendants shall from him, to the exclusion of collaterals.

The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her possession by free disposal in her son's will; but the case presents no testamentary provision that demonstrate any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was abintestate or by operation of law, and not by will or the wish of the predecessor in interest. (Act No. 190, sec. 334, No. 26.) All the provision of article 811 of the Civil Code have therefore been fully complied with.

If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a legitimate ascendant.

The legal portion of the parents or ascendants is constituted by one-half of the hereditary estate of the children and descendants. The latter may unrestrictedly dispose of the other half, with the exception of what is established in article 836. (Civil Code, art. 809.)

In such case only the half constituting the legal portion would be required by law to be reserved, because it is what by operation of law could full to the mother from her son's inheritance; the other half at free disposal would not have to be reserved. This is all that article 811 of the Civil Code says.

No error has been incurred in holding that the two parcels of land which are the subject matter of the application are required by law to be reserved, because the interested party has not proved that either of them became her inheritance through the free disposal of her son.

Proof testate succession devolves upon the heir or heiress who alleges it. It must be admitted that a half of Pedro Sablan's inheritance was acquired by his mother by operation of law. The law provides that the other half is also presumed to be acquired by operation of law that is, by intestate succession. Otherwise, proof to offset this presumption must be presented by the interested party, that is, that the other half was acquired by the man's wish and not by operation of law.

Nor is the third assignments of error admissible that the trial court failed to sustain the renunciation of the right required by law to be reserved, which the applicant attributes to the opponents. Such renunciation does not appear in the case. The appellant deduces it from the fact that the appellees did not contradict the following statement of hers at the trial:

The day after my brother-in-law Pablo Sablan dies and was buried, his brother came to my house and said that those rice lands were mine, because we had already talked about making delivery of them. (p. 91).

The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio Sablan said that the lands belong to the appellant and must be delivered to her it cannot be deduced that he renounced the right required by law to be reserved in such lands by virtue of the provisions of article 811 of the Civil Code, for they really belong to her and must be delivered to her.

The fourth assignments of error set up the defense of prescription of the right of action. The appellant alleges prescription of the opponent's right of action for requiring fulfillment of the obligation they attribute to her recording in the property registry the right required by law to be reserved, in accordance with the provisions of the Mortgage Law; and as such obligation is created by law, it prescribed in the time fixed in No. 2 of section 43 of Act No. 190. She adds: "Prescription of the right alleged to the reserved by force of law has not been invoked." (Eight allegation.)

The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did she do so in first instance, where she says only the following, which is quoted from the record: "I do not refer to the prescription of the right required by law to be reserved in the property; I refer to the prescription of the right of action of those who are entitled to the guaranty of that right for seeking that guaranty, for those who are entitled to that right the Mortgage Law grants a period of time for recording it in the property registry, if I remember correctly, ninety days, for seeking entry in the registry; but as they have not exercised that right of action, such right of action for seeking here that it be recorded has prescribed. The right of action for requiring that the property be reserved has not prescribed, but the right of action for guaranteeing in the property registry that this property is required by law to be reserved" (p. 69 of the record).

The appellees reply: It is true that their right of action has prescribed for requiring the applicant to constitute the mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of the required by law to be reserved; but because that right of action has prescribed, that property has not been divested of its character of property required by law to be reserved; that it has such character by virtue of article 8112 of the Civil Code, which went into effect in the Philippine in December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the country by law of July 14, 1893; that from December, 1889, to July, 1893, property which under article 811 of the Civil Code acquired the character of property reserved by operation of law was such independently of the Mortgage Law, which did not yet form part of the positive legislation of the country; that although the Mortgage Law has been in effect in the country since July, 1893, still it has in no way altered the force of article 811 of the Civil Code, but has operated to reinforce the same merely by granting the right of action to the persons in whose favor the right is reserved by operation of law to require of the person holding the property a guaranty in the form of a mortgage to answer for the enforcement, in due time, of the right; that to lose the right of action to the guaranty is not to lose the right itself; that the right reserved is the principal obligation and the mortgage the accessory obligation, and loss of the accessory does not mean loss of the principal. (Fifth and sixth allegations.)

The existence of the right required by law to be reserved in the two parcels of land in question being indisputable, even though it be admitted that the right of action which the Mortgage Law grants as a guaranty of final enforcement of such right has prescribed, the only thing to be determined by this appeal is the question raised in the first assignment of error, that is, how said two parcels of land can and ought to be registered, not in the property registry newly established by the Mortgage Law, but in the registry newly organized by Act No. 496. But as the have slipped into the allegations quoted some rather inexact ideas that further obscure such an intricate subject as this of the rights required to be reserved in Spanish-Philippine law, a brief disgression on the most essential points may not be out of place here.

The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the colonies, not the first enforced in the colonies and consequently in the Philippines. The preamble of said amended Mortgage Law states:

The Mortgage Law in force in Spain for thirty years went into effect, with the modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in the Philippines on December 1, 1889, thus commencing in those regions the renovation of the law on real property, and consequently of agrarian credit.

The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day.

Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set forth in article 968 thereof, where it says:

Besides the reservation imposed by article 811, the widow or widower contracting a seconds marriage shall be obliged to set apart for the children and descendants of the first marriage the ownership of all the property he or she may have required from the deceased spouse by will, by intestate succession, by gift, or other transfer without a valuable consideration."

The Mortgage Law of Spain and the first law that went into effect in the Philippines on December 1, 189, do not contain any provision that can be applied to the right reserved by article 811 of the Civil Code, for such right is a creation of the Civil Code. In those laws appear merely the provisions intended to guarantee the effectiveness of the right in favor of the children of the first marriage when their father or mother contracts a second marriage. Nevertheless, the holding of the supreme court of Spain, for the first time set forth in the decision on appeal of November 8, 1894, has been reiterated:

That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the right required to be reserved in the property refer especially to the spouses who contract second or later marriages, they do not thereby cease to be applicable to the right establishes in article 811, because, aside from the legal reason, which is the same in both cases, such must be the construction from the important and conclusive circumstance that said provisions are set forth in the chapter that deals with inheritances in common, either testate or intestate, and because article 968, which heads the section that deals in general with property required by law to be reserved, makes reference to the provisions in article 811; and it would consequently be contradictory to the principle of the law and of the common nature of said provisions not to hold them applicable to that right.

Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court has already declared, the guaranties that the Code fixes in article 977 and 978 for the rights required by law to the reserved to which said articles refer, are applicable to the special right dealt with in article 811, because the same principle exists and because of the general nature of the provisions of the chapter in which they are found."

From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a case had occurred of a right required to be reserved by article 811, the persons entitled to such right would have been able to institute, against the ascendant who must make the reservation, proceedings for the assurance and guaranty that article 977 and 978 grant to the children of a first marriage against their father or mother who has married again. The proceedings for assurance, under article 977; are: Inventory of the property subject to the right reserved, annotation in the property registry of such right reserved in the real property and appraisal of the personal property; and the guaranty, under article 978, is the assurance by mortgage, in the case of realty, of the value of what is validly alienated.

But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines this is not only a principle of jurisprudence which may be invoked for the applicability to the right reserved in article 811 of the remedies of assurance and guaranty provided for the right reserved in article 968, but there is a positive provision of said law, which is an advantage over the law of Spain, to wit, article 199, which read thus:

The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code can only be required by the relatives in whose favor the property is to be reserved, if they are of age; if minors, it will be require by the person who should legally represent them. In either case the right of the persons in whose favor the property must be reserved will be secured by the same requisites as set forth in the preceding article (relative to the right reserved by article 968 of the Civil Code), applying to the person obligated to reserve the right the provisions with respect to the father.

In article 168 of the same law the new subsection 2 is added in connection with article 199 quoted, so that said article 168 reads as thus:

Legal mortgage is established:

1.. . .

2.In favor of the relatives to whom article 811 of the Civil Code refers, for the property required to be reserved, upon the property of the person obliged to reserve it.

This being admitted, and admitted also that both the litigating parties agree that the period of ninety days fixed for the right of action to the guaranty, that is, to require the mortgage that guarantees the effectiveness of the right required by law to be reserved, has prescribed, it is necessary to lay down a principle in this matter. Now it should by noted that such action has not prescribed, because the period of ninety days fixed by the Mortgage Law is not for the exercise of the right of action of the persons entitled to the right reserved, but for the fulfillment of the obligation of the person who must make the reservation.

Article 191 of the reads thus: "If ninety days pass without the father's instituting in court the proceeding to which the foregoing article refers, the relatives themselves may demand fulfillment, etc., . . . applying, according to said article 199, to the person obligated to reserve the right the provisions with respect to the father."

Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article 199 of the law the proceedings to which article 190 thereof refers will be instituted within the ninety days succeeding the date of the date of the acceptation of the inheritance by the person obligated to reserve the property; after this period has elapsed, the interested parties may require the institution of such proceedings, if they are of age; and in any other case, their legal representatives."

Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of the period for the right must be reserved, but really the commencement thereof, enables them to exercise it at any time, since no limits is set in the law. So, if the annotation of the right required by law to be reserved in the two parcels of land in question must be made in the property registry of the Mortgage Law, the persons entitled to it may now institute proceedings to that end, and an allegation of prescription against the exercise of such right of action cannot be sustained.

Since the applicant confesses that she does not allege prescription of the right of action for requiring that the property be reserved, for she explicitly so stated at the trial, and as the case presents no necessity for the proceedings that should be instituted in accordance with the provisions of the Mortgage Law, this prescription of the right of action cannot take place, because such right of action does not exist with reference to instituting proceedings for annotation in the registry of Act No. 496 of the right to the property required by law to be reserved. It is sufficient, as was done in the present case, to intervene in the registration proceedings with the claim set up by the two opponents for recording therein the right reserved in either parcel of land.

Now comes the main point in the appeal. The trial court denied the registration because of this finding set forth in its decision:

Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two uncles of the deceased Pedro Sablan, and the application cannot be made except in the name of all of them in common. (B. of E., p. 20.)

It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and recover. The person who has in himself all these rights has the absolute or complete ownership of the thing; otherwise, the person who has the right to use and enjoy will have the usufruct, and the person who has the rights of disposal and recovery the direct title. The person who by law, act, or contract is granted the right of usufruct has the first two rights or using an enjoying, and then he is said not to have the fee simple that is, the rights of disposal and recovery, which pertain to another who, after the usufruct expires, will come into full ownership.

The question set up in the first assignment of error of the appellant's brief is this:

What are the rights in the property of the person who holds it subject to the reservation of article 811 of the Civil Code?

There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the person in whose favor the reservation is made. If that were so, the person holding the property could not apply for registration of title, but the person in whose favor it must be reserved, with the former's consent. This opinion does not seem to be admissible, although it appears to be supported by decisions of the supreme court of Spain of May 21, 1861, and June 18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof.

Another writer says: "This opinion only looks at two salient points the usufruct and the fee simple; the remaining features of the arrangement are not perceived, but become obscure in the presence of that deceptive emphasis which only brings out two things: that the person holding the property will enjoy it and that he must keep what he enjoys for other persons." (Manresa, VII, 189.)

In another place he says: "We do not believe that the third opinion can now be maintained that is, that the surviving spouse (the person obliged by article 968 to make the reservation) can be regarded as a mere usufructuary and the descendants immediately as the owner; such theory has no serious foundation in the Code." (Ibid., 238.)

The ascendants who inherits from a descendants, whether by the latter's wish or by operation of law, requires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right of ownership belong to him exclusively use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in the hereditary title, is not altered in the least, if there be no relatives within the third degree in the line whence the property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If there should be relatives within the third degree who belong to the line whence the property proceeded, then a limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined with exactness in order not to vitiate rights that the law wishes to be effective. The opinion which makes this limitation consist in reducing the ascendant heir to the condition in of a mere usufructuary, depriving him of the right of disposal and recovery, does not seem to have any support in the law, as it does not have, according to the opinion that he has been expressed in speaking of the rights of the father or mother who has married again. There is a marked difference between the case where a man's wish institutes two persons as his heirs, one as usufructuary and the other as owner of his property, and the case of the ascendant in article 811 or of the father or mother in article 968. In the first case, there is not the slightest doubt that the title to the hereditary property resides in the hereditary owner and he can dispose of and recover it, while the usufructuary can in no way perform any act of disposal of the hereditary property (except that he may dispose of the right of usufruct in accordance with the provisions of article 480 of the Civil Code), or any act of recovery thereof except the limited one in the form prescribed in article 486 of the Code itself, because he totally lacks the fee simple. But the ascendants who holds the property required by article 811 to be reserved, and the father of mother required by article 986 to reserve the right, can dispose of the property they might itself, the former from his descendant and the latter from his of her child in first marriage, and recover it from anyone who may unjustly detain it, while the persons in whose favor the right is required to be reserved in either case cannot perform any act whatsoever of disposal or of recovery.

Article 975 states explicitly that the father or mother required by article 9687 to reserve the right may dispose of the property itself:

Alienation of the property required by law to be reserved which may be made by the surviving spouse after contracting a second marriage shall be valid only if at his or her death no legitimate children or descendants of the first marriage survive, without prejudice to the provisions of the Mortgage of Law.

It thus appears that the alienation is valid, although not altogether effective, but under a condition subsequent, to wit: "If at his or her death no legitimate children or descendants of the first marriage survive."

If the title did not reside in the person holding the property to be reserved, his alienation thereof would necessarily be null and void, as executed without a right to do so and without a right which he could transmit to the acquirer. The law says that the alienation subsists (to subject is to continue to exist) "without prejudice to the provisions of the Mortgage Law." Article 109 of this Law says:

The possessor of property subject to conditions subsequent that are still pending may mortgage or alienate it, provided always that he preserve the right of the parties interested in said conditions by expressly reserving that right in the registration.

In such case, the child or legitimate descendants of the first marriage in whose favor the right is reserved cannot impugn the validity of the alienation so long as the condition subsequent is pending, that is, so long as the remarried spouse who must reserve the right is alive, because it might easily happen that the person who must reserve the right should outlive all the person in whose favor the right is reserved and then there would be no reason for the condition subsequent that they survive him, and, the object of the law having disappeared, the right required to be reserved would disappear, and the alienation would not only be valid but also in very way absolutely effective. Consequently, the alienation is valid when the right required by law to be reserved to the children is respected; while the effects of the alienation depend upon a condition, because it will or will not become definite, it will continue to exist or cease to exist, according to circumstances. This is what the law establishes with reference to the reservation of article 968, wherein the legislator expressly directs that the surviving spouse who contracts a second marriage shall reserve to the children or descendants of the first marriage ownership. Article 811 says nothing more than that the ascendants must make the reservation.

Manresa, with his recognized ability, summarizes the subject under the heading, "Rights and obligations during the existence of the right required by law to be reserved," in these words:

During the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the relatives within the third degree, after the right that in their turn may pertain to them has been assured, have only an expectation, and therefore they do not even have the capacity to transmit that expectation to their heirs.

The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in the manner and form already set forth in commenting upon the article of the Code referring to use and usufruct.

But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple of the property, he can dispose of it in the manner provided in article 974 and 976 of the same Code. Doubt arose also on this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that articles 974 and 975, which are applicable by analogy, for they refer to property reserved by law, reveal in the clearest manner the attitude of the legislator on this subject, and the relatives with the third degree ought not to be more privileged in the right reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right required to be reserved carries with it a condition subsequent, and the property subject to those conditions can validly be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending fulfillment of the condition." (Civil Code, VI, 270.)

Another commentator corroborates the foregoing in every way. He says:

The ascendants acquires that property with a condition subsequent, to wit, whether or not there exists at the time of his death relatives within the third degree of the descendants from whom they inherit in the line whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendants. If they do not exist, the ascendants can freely dispose thereof. If this is true, since the possessor of property subject to conditions subsequent can alienate and encumber it, the ascendants may alienate the property required by law to be reserved, but he will alienate what he has and nothing more because no one can give what does not belong to him, and the acquirer will therefore receive a limited and revocable title. The relatives within the third degree will in their turn have an expectation to the property while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also within the third degree. After the person who is required by law to reserve the right has died, the relatives may rescind the alienation of the realty required by law to be reserved and they will complete ownership, in fee simple, because the condition and the usufruct have been terminated by the death of the usufructuary. (Morell, Estudios sobre bienes reservable, 304, 305.)

The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a condition subsequent. Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do.

On the other hand, the relatives within the third degree in whose favor of the right is reserved cannot dispose of the property, first because it is no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of the fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of the descendants of whom they are relatives within the third degree, that it to say, a second contingent place in said legitimate succession in the fashion of aspirants to a possible future legacy. If any of the persons in whose favor the right is reserved should, after their rights has been assured in the registry, dare to dispose of even nothing more than the fee simple of the property to be reserved his act would be null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is impossible to determine the part "that might pertain therein to the relative at the time he exercised the right, because in view of the nature and scope of the right required by law to be reserved the extent of his right cannot be foreseen, for it may disappear by his dying before the person required to reserve it, just as may even become absolute should that person die."

Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the person required by law to reserve the right can be impugned by him in whose favor it is reserved, because such person has all, absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition that the third party acquirer may ascertain from the registry in order to know that he is acquiring a title subject to a condition subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than relatives within the third degree of the descendants from whom he got the property to be reserved must be prohibited to him, because this alone has been the object of the law: "To prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein." (Decision of December 30, 1897.)

Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may be absolutely made of the property the law requires to be reserved, in the present case, that which the appellant has made of the two parcels of land in question to a third party, because the conditional alienation that is permitted her is equivalent to an alienation of the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of the property required by law to be reserved are all that the person who must reserve it has during his lifetime, and in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible manner. The question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not real, actual positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the express wish of the predecessor in interest.

If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the real owner and can alienate it, although under a condition, the whole question is reduced to the following terms:

Cannot the heir of the property required by law to reserved, merely because a condition subsequent is annexed to his right of disposal, himself alone register the ownership of the property he has inherited, when the persons in whose favor the reservation must be made degree thereto, provided that the right reserved to them in the two parcels of land be recorded, as the law provides?

It is well known that the vendee under pacto de retracto acquires all the rights of the vendor:

The vendee substitutes the vendor in all his rights and actions. (Civil Code, art. 1511.)

If the vendor can register his title, the vendee can also register this same title after he has once acquired it. This title, however, in its attribute of being disposable, has a condition subsequent annexed that the alienation the purchaser may make will be terminated, if the vendor should exercise the right granted him by article 1507, which says:

Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold, with the obligation to comply with article 1518, and whatever more may have been agreed upon," that is, if he recovers the thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this condition subsequent, it is a point not at all doubtful now that the vendee may register his title in the same way as the owner of a thing mortgaged that is to say, the latter with the consent of his creditor and the former with the consent of the vendor. He may alienate the thing bought when the acquirer knows by well from the title entered in the registry that he acquires a title revocable after a fixed period, a thing much more certain and to be expected than the purely contingent expectation of the person in whose favor is reserved a right to inherit some day what another has inherited. The purpose of the law would be defeated in not applying to the person who must make the reservation the provision therein relative to the vendee under pacto de retracto, since the argument in his favor is the more power and conclusive; ubi eadem ratio, eadem legis dispositivo.

Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the applicants, recording in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her; without special findings as to costs.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-12957 March 24, 1961

CONSTANCIO SIENES, ET AL., plaintiffs-appellants, vs.FIDEL ESPARCIA, ET AL., defendants-appellees.

Proceso R. Remollo for plaintiffs-appellants.Leonardo D. Mancao for defendants-appellees.

DIZON, J.:

Appellants commenced this action below to secure judgment (1) declaring null and void the sale executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Sienes; (2) ordering the Esparcia spouses to reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and (3) ordering all the appellees to pay, jointly and severally, to appellants the sum of P500.00 as damages, plus the costs of suit. In their answer appellees disclaimed any knowledge or information regarding the sale allegedly made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that, if such sale was made, the same was void on the ground that Andrea Gutang had no right to dispose of the property subject matter thereof. They further alleged that said property had never been in possession of appellants, the truth being that appellees, as owners, had been in continuous possession thereof since the death of Francisco Yaeso. By way of affirmative defense and counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the said sale having been registered together with an affidavit of adjudication executed by Paulina and Cipriana on July 18, 1951, as sole surviving heirs of the aforesaid deceased; that since then the Esparcias had been in possession of the property as owners.

After trial upon the issues thus joined, the lower court rendered judgment as follows:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that the sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses Constancio Sienes and Genoveva Silay is void, and the reconveyance prayed for by them is denied; (2) that the sale made by Paulina and Cipriana Yaeso in favor of defendants Fidel Esparcia and Paulina Sienes involving the same lot is also void, and they have no valid title thereto; and (3) that the reservable property in question is part of and must be reverted to the estate of Cipriana Yaeso, the lone surviving relative and heir of Francisco Yaeso at the death of Andrea Gutang as of December 13, 1951. No pronouncement as to the costs.

From the above decision the Sienes spouse interposed the present appeal, their principal contentions being, firstly, that the lower court erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan was a reservable property; secondly, in annulling the sale of said lot executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana Yaeso, as reservee, was entitled to inherit said land.

There is no dispute as to the following facts:

Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four children named Agaton, Fernando, Paulina and Cipriana, while with his second wife, Andrea Gutang, he had an only son named Francisco. According to the cadastral records of Ayuquitan, the properties left by Saturnino upon his death the date of which does not clearly appear of record were left to his children as follows: Lot 3366 to Cipriana, Lot 3367 to Fernando, Lot 3375 to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to Francisco. As a result of the cadastral proceedings, Original Certificate of Title No. 10275 covering Lot 3368 was issued in the name of Francisco. Because Francisco was a minor at the time, his mother administered the property for him, declared it in her name for taxation purposes (Exhs A & A-1), and paid the taxes due thereon (Exhs. B, C, C-1 & C-2). When Francisco died on May 29, 1932 at the age of 20, single and without any descendant, his mother, as his sole heir, executed the public instrument Exhibit F entitled EXTRAJUDICIAL SETTLEMENT AND SALE whereby, among other things, for and in consideration of the sum of P800.00 she sold the property in question to appellants. When thereafter said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the surrender of Original Certificate of Title No. 10275 which was in their possession the latter refused, thus giving rise to the filing of the corresponding motion in the cadastral record No. 507. The same, however, was denied (Exhs. 8 & 9).

Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving half-sisters of Francisco, and who as such had declared the property in their name, on January 1, 1951 executed a deed of sale in favor of the spouses Fidel Esparcia and Paulina Sienes (Exh. 2) who, in turn, declared it in their name for tax purposes and thereafter secured the issuance in their name of Transfer Certificate of Title No. T-2141 (Exhs. 5 & 5-A).

As held by the trial court, it is clear upon the facts already stated, that the land in question was reservable property. Francisco Yaeso inherited it by operation of law from his father Saturnino, and upon Francisco's death, unmarried and without descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came, if any survived her. The record discloses in this connection that Andrea Gutang died on December 13, 1951, the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10).

In connection with reservable property, the weight of opinion is that the reserve creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (6 Manresa 268-269; 6 Sanchez Roman 1934). This Court has held in connection with this matter that the reservista has the legal title and dominion to the reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property; that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and conditional ownership of the reservists, the rights acquired by the transferee being revoked or resolved by the survival of reservatarios at the time of the death of the reservista (Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; and Director of Lands vs. Aguas, 65 Phil. 279).The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that the vendees would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by any person entitled to the reservable property. Inasmuch much as when Andrea Gutang died, Cipriana Yaeso was still alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to Cipriana.

On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaeso in favor of the spouses Fidel Esparcia and Paulina Sienes was subject to a similar resolutory condition. The reserve instituted by law in favor of the heirs within the third degree belonging to the line from which the reservable property came, constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person obliged to reserve, died. Thus the former became the absolute owner of the reservable property upon Andrea's death. While it may be true that the sale made by her and her sister prior to this event, became effective because of the occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, in so far as it orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees the Esparcia spouses did not appeal therefrom.

WHEREFORE, the appealed decision as above modified is affirmed, with costs, and without prejudice to whatever action in equity the Esparcia spouses may have against the Estate of Cipriana Yaeso for the reconveyance of the property in question.Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-14603 April 29, 1961

RICARDO LARCERNA, ET AL., plaintiffs-appellants, vs.AGATONA PAURILLO VDA. DE CORCINO, defendant-appellee.JACOBA MARBEBE, intervenor-appellee.

CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Iloilo declaring that the parcels of land in litigation are property of intervenor Jacoba Marbebe.

This action was instituted by Ricardo, Patrocinia, Patria, Faustino, Leonor, Ramona, Asuncion, Emiliana, Arsenio and Felipe, all surnamed Lacerna, for the recovery of three parcels of unregistered lands, situated in the municipality of Maasin, Iloilo, and more specifically described in the complaint, upon the ground that said lands belonged to the deceased Juan Marbebe, and that his cousins, plaintiffs herein, are his sole heirs.

In her answer, defendant Agatona Vda. de Corcino alleged, inter alia, that Juan Marbebe might still be alive; that she held the disputed lands under a power of attorney executed by Juan Marbebe; and that, if he has died, she is entitled to succeed him in the same manner as plaintiffs herein, she being related to him in the same manner as plaintiffs are.

With the court's permission, Jacoba Marbebe filed an answer in intervention alleging that she is a half sister of Juan Marbebe who died intestate, leaving neither ascendants nor descendants, and that, as his half sister, she is entitled, by succession, to the properties in dispute.

After due trial, the court rendered judgment for the intervenor. Hence, this appeal by the plaintiffs.

The lower court found, and appellants do not question, that the lands described in the complaint belonged originally to Bonifacia Lacerna. Upon her death in 1932, they passed, by succession, to her only son, Juan Marbebe who was, subsequently, taken to Culion where he died intestate, single and without issue on February 21, 1943. The question for determination is: who shall succeed him?

It appears that his mother, Bonifacia Lacerna, had a sister, Agatona Paurillo Vda. de Corcino, the defendant herein; that Catalino Lacerna died in 1950 and was survived by his children, plaintiffs Ricardo, Patrocinia and Patria, all surnamed Lacerna; and that Marcelo Lacerna who died in 1953, was survived by his children, the other plaintiffs herein, namely, Ramona, Faustino, Leonor, Asuncion Emiliano, Arsenio and Felipe, all surnamed Lacerna. Upon the other hand, intervenor Jacoba Marbebe is daughter, by first marriage, of Valentin Marbebe, husband of Bonifacia Lacerna and father of Juan Marbebe, who, accordingly, is a half brother of said intervenor.

With this factual background, the issue is narrowed down to whether Jacoba Marbebe, as half sister of Juan Marbebe, on his father's side, is his sole heir, as held by His Honor, the Trial Judge, or whether plaintiffs herein, as first cousins of Juan Marbebe, on his mother side, have a better right to succeed him, to the exclusion of Jacoba Marbebe, as plaintiffs-appellants maintain.

The latter's pretense is based upon the theory that, pursuant to Article 891 of the Civil Code of the Philippines, establishing what is known as "reserva troncal", the properties in dispute should pass to the heirs of the deceased within the third degree, who belong to the line from which said properties came, and that since the same were inherited by Juan Marbebe from his mother, they should go to his nearest relative within the third degree on the material line, to which plaintiffs belong, not to intervenor, Jacoba Marbebe, despite the greater proximity of her relationship to the deceased, for she belongs to the paternal line.

Jacoba Marbebe contends, however, and the lower court held, that brothers and sisters exclude all other collateral relatives in the order of intestate succession, and that, as Juan Marbebe's half-sister, she has, accordingly, a better right than plaintiffs herein to inherit his properties.

The main flaw in appellants' theory is that it assumes that said properties are subject to the "reserva troncal", which is not a fact, for Article 891 of the Civil Code of the Philippines, provides:

The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (Emphasis supplied.)

This article applies only to properties inherited, under the conditions therein set forth, by an ascendant from a descendant, and this is not the case before us, for the lands in dispute were inherited by a descendant, Juan Marbebe, from an ascendant, his mother, Bonifacia Lacerna. Said legal provision is, therefore, not in point, and the transmission of the aforementioned lands, by inheritance, was properly determined by His Honor, the Trial Judge, in accordance with the order prescribed for intestate succession, particularly Articles 1003 to 1009 of the Civil Code of the Philippines, pursuant to which a sister, even if only a half-sister, in the absence of other sisters or brothers, or of children of brothers or sisters, excludes all other collateral relatives, regardless of whether or not the latter belong to the line from which the property of the deceased came.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against plaintiffs-appellants. It is so ordered.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 83484February 12, 1990

CELEDONIA SOLIVIO, petitioner, vs.THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA, respondents.

Rex Suiza Castillon for petitioner.

Salas & Villareal for private respondent.

MEDIALDEA, J.:

This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and damages, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant:

a)Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2) shares: one-half for the plaintiff and one-half for defendant. From both shares shall be equally deducted the expenses for the burial, mausoleum and related expenditures. Against the share of defendants shall be charged the expenses for scholarship, awards, donations and the 'Salustia Solivio Vda. de Javellana Memorial Foundation;'

b)Directing the defendant to submit an inventory of the entire estate property, including but not limited to, specific items already mentioned in this decision and to render an accounting of the property of the estate, within thirty (30) days from receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff;

c)Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00 for and as attorney's fees plus costs.

SO ORDERED. (pp. 42-43, Rollo)

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr.

He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born.

Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr.

Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was acquired during her short-lived marriage to Esteban, Sr.

On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26,1977 without having set up the foundation.

Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about Esteban's desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated:

4.That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], because prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied.)

Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo).

After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated.

On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION" which she caused to be registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027 (p. 98, Rollo).

Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia Solivio" for partition, recovery of possession, ownership and damages.

On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva.

On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for reconsideration.

In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial court in toto. Hence, this petition for review wherein she raised the following legal issues:

1.whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia Villanueva's share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still pending in Branch 23 of the same court;

2.whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud;

3.whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mother's side from whom he had inherited them; and

4.whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de Javellana Foundation, and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have already been transferred to it.

I.The question of jurisdiction

After a careful review of the records, we find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings (p. 31, Record).

It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266).

The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the estate." The pertinent portions of the order are quoted below:

2.As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the record that despite the notices posted and the publication of these proceedings as required by law, no other heirs came out to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977.

During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an elder [sic] sister of his late mother who reared him and with whom he had always been living with [sic] during his lifetime.

x x xx x xx x x

2.Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City.

The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp, 14-16, Record)

In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate.

In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26695, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother:

The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of The probate court, in the exercise of its jurisdiction to make distribution, has power to determine the proportion or parts to which each distributed is entitled. ... The power to determine the legality or illegality of the testamentary provision is inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. ... To hold that a separate and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388)

A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administratrix proceedings and can not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364)

A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436)

partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated Siguiong v. Tecson, supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Emphasis supplied)

In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition. (p. 378).

However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to discuss the merits of her claim in the interest of justice.

The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper and officious, to say the least, for these matters he within the exclusive competence of the probate court.

II.The question of extrinsic fraud

Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first time.

Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a party from having a trial or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)

A judgment may be annulled on the ground of extrinsic or collateral fraud, as distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by a prevailing litigant 'outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case. ... The overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court or from presenting his case. The fraud, therefore, is one that affects and goes into the jurisdiction of the court. (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA 318, 323)

The charge of extrinsic fraud is, however, unwarranted for the following reasons:

1.Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged:

6.... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes and other obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff, [although Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis supplied)

Evidently, Concordia was not prevented from intervening in the proceedings. She stayed away by choice. Besides, she knew that the estate came exclusively from Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased had planned to do.

2.The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonia's original petition was published in the "Visayan Tribune" on April 25, May 2 and 9, 1977 (Exh 4, p. 197, Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order of the court, published in "Bagong Kasanag" (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same. As pointed out by the probate court in its order of October 27, 1978:

... . The move of Concordia Javellana, however, was filed about five months after Celedonia Solivio was declared as the sole heir. ... .

Considering that this proceeding is one in rem and had been duly published as required by law, despite which the present movant only came to court now, then she is guilty of laches for sleeping on her alleged right. (p. 22, Record)

The court noted that Concordia's motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial.

The rule is stated in 49 Corpus Juris Secundum 8030 as follows:

Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem no subsequent errors or irregularities are available on collateral attack. (Bedwell v. Dean 132 So. 20)

Celedonia's allegation in her petition that she was the sole heir of Esteban within the third degree on his mother's side was not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Esteban's nearest surviving relative on his mother's side, is the rightful heir to them. It would have been self-defeating and inconsistent with her claim of sole heirship if she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud.

Failure to disclose to the adversary, or to the court, matters which would defeat one's own claim or defense is not such extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)

It should be remembered that a petition for administration of a decedent's estate may be filed by any "interested person" (Sec. 2, Rule 79, Rules of Court). The filing of Celedonia's petition did not preclude Concordia from filing her own.

III.On the question of reserva troncal

We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva troncal and that it pertains to her as his only relative within the third degree on his mother's side. The reserva troncal provision of the Civil Code is found in Article 891 which reads as follows:

ART. 891.The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.

The persons involved in reserva troncal are:

1.The person obliged to reserve is the reservor (reservista)the ascendant who inherits by operation of law property from his descendants.

2.The persons for whom the property is reserved are the reservees (reservatarios)relatives within the third degree counted from the descendant (propositus), and belonging to the line from which the property came.

3.The propositusthe descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891.

Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide:

ART. 1003.If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

ART. 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.

Therefore, the Court of Appeals correctly held that:

Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate 'without distinction of line or preference among them by reason of relationship by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate. (p. 57, Rollo)

IV.The question of Concordia's one-half share

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540:

4.That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied)

she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance the education of indigent but deserving students as well.

Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).

The admission was never withdrawn or impugned by Concordia who, significantly, did not even testify in the case, although she could have done so by deposition if she were supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin, actively participated in the trial. Her husband confirmed the agreement between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife did not intend to give all, but only one-half, of her share to the foundation (p. 323, Record).

The records show that the "Salustia Solivio Vda. de Javellana Foundation" was established and duly registered in the Securities and Exchange Commission under Reg. No. 0100027 for the following principal purposes:

1.To provide for the establishment and/or setting up of scholarships for such deserving students as the Board of Trustees of the Foundation may decide of at least one scholar each to study at West Visayas State College, and the University of the Philippines in the Visayas both located in Iloilo City.

2.To provide a scholarship for at least one scholar for St. Clements Redemptorist Community for a deserving student who has the religious vocation to become a priest.

3.To foster, develop, and encourage activities that will promote the advancement and enrichment of the various fields of educational endeavors, especially in literary arts. Scholarships provided for by this foundation may be named after its benevolent benefactors as a token of gratitude for their contributions.

4.To direct or undertake surveys and studies in the community to determine community needs and be able to alleviate partially or totally said needs.

5.To maintain and provide the necessary activities for the proper care of the Solivio-Javellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo City, and the Javellana Memorial at the West Visayas State College, as a token of appreciation for the contribution of the estate of the late Esteban S. Javellana which has made this foundation possible. Also, in perpetuation of his Roman Catholic beliefs and those of his mother, Gregorian masses or their equivalents will be offered every February and October, and Requiem masses every February 25th and October llth, their death anniversaries, as part of this provision.

6.To receive gifts, legacies, donations, contributions, endowments and financial aids or loans from whatever source, to invest and reinvest the funds, collect the income thereof and pay or apply only the income or such part thereof as shall be determined by the Trustees for such endeavors as may be necessary to carry out the objectives of the Foundation.

7.To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal, in any manner permitted by law, in real and personal property of every kind and description or any interest herein.

8.To do and perform all acts and things necessary, suitable or proper for the accomplishments of any of the purposes herein enumerated or which shall at any time appear conducive to the protection or benefit of the corporation, including the exercise of the powers, authorities and attributes concerned upon the corporation organized under the laws of the Philippines in general, and upon domestic corporation of like nature in particular. (pp. 9-10, Rollo)

As alleged without contradiction in the petition' for review:

The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana scholars graduated in 1986, one (1) from UPV graduated Cum Laude and two (2) from WVSU graduated with honors; one was a Cum Laude and the other was a recipient of Lagos Lopez award for teaching for being the most outstanding student teacher.

The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of which was donated by the Foundation. The School has been selected as the Pilot Barangay High School for Region VI.

The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at St. Francis Xavier Major Regional Seminary at Davao City. The Foundation likewise is a member of the Redemptorist Association that gives yearly donations to help poor students who want to become Redemptorist priests or brothers. It gives yearly awards for Creative writing known as the Esteban Javellana Award.

Further, the Foundation had constructed the Esteban S. Javellana Multi-purpose Center at the West Visayas State University for teachers' and students' use, and has likewise contributed to religious civic and cultural fund-raising drives, amongst other's. (p. 10, Rollo)

Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as Celedonia has honored hers.

WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inventory and accounting of the estate of the deceased preparatory to terminating the proceedings therein.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. L-29901August 31, 1977

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners, vs.THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and SUSANA DE LA TORRE, in her capacity as Administratrix of the Intestate Estate of Consolacion de la Torre, respondents.

Dominador G. Abaria and Primitivo Blanca for private respondent.

Rodrigo O. Delfinado for petitioners.

MARTIN, J.:

Petition for review of the decision of the respondent Court which dismissed the complaint of petitioners in Civil Case No. 7839-A, entitled "Ignacio Frias Chua, et al. vs. Susana de la Torre, Administratrix of the Intestate Estate of Consolacion de la Torre"

It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy Quio he sired three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua contracted a second marriage with Consolacion de la Torre with whom he had a child by the name of Juanita Frias Chua. Manuel Frias Chua died without leaving any issue. Then in 1929, Jose Frias Chua died intestate leaving his widow Consolacion de la Torre and his son Juanito Frias Chua of the second marriage and sons Ignacio Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate Proceeding No. 4816, the lower court issued an order dated January 15, 1931 1 adjudicating, among others, the one-half (1/2,) portion of Lot No. 399 and the sum of P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in favor of Juanito Frias Chua, his son in the second marriage; P3,000.00 in favor of Lorenze Frias chua; and P1,550.00