11. Casiano v MalotoG.R. No. L-32328 September 30, 1977TESTATE ESTATE OF THE LATE ADRIANO MALOTO: ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, and ASILO DE MOLO,petitioners-appellantsvs.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.2The 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.4It 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.5The 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.7Acting 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.10In 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:ITHE 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).IITHE 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 ADJUDICATAIIITHE 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."13And 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.

12. Cuizon v RamaloteG.R. No. L-51291 May 29, 1984FRANCISCO CUIZON, ROSITA CUIZON, PURIFICATION C. GUIDO married to TEODORO GUIDO, and JUAN ARCHE,petitioners,vs.HON. JOSE R. RAMOLETE, Presiding Judge of the Court of First Instance of Cebu, Branch III, DOMINGO L. ANTIGUA and SEGUNDO ZAMBO,respondents.GUTIERREZ, JR.,J.:The sole issue in this petition for certiorari is whether or not a probate court has jurisdiction over parcels of land already covered by a Transfer Certificate of Title issued in favor of owners who are not parties to the intestate proceedings if the said parcels have been included in the inventory of properties of the estate prepared by the administrator.For a clearer understanding of the present case, the background facts may be appreciated. As far back as 1961, Marciano Cuizon applied for the registration of several parcels of land located at Opao, Mandaue City then covered by certificates of Tax Declaration in Land Registration Case No. N-179. In 1970, he distributed his property between his two children, Rufina and Irene. Part of the property given to Irene consisted largely of salt beds which eventually became the subject of this controversy.On December 29, 1971, Irene Cuizon executed a Deed of Sale with Reservation of Usufruct involving the said salt beds in favor of the petitioners Francisco, Rosita and Purificacion, all surnamed Cuizon. At that time, Francisco and Rosita were minors and assisted by their mother, Rufina, only sister of Irene. However, the sale was not registered because the petitioners felt it was unnecessary due to the lifetime usufructuary rights of Irene.Although the decision in L.R. Case No. N-179 was rendered way back in 1962, the decree of registration No. N-161246 and the corresponding Original Certificate of Title No. 0171 was issued only in 1976 in the name of Marciano Cuizon. In that same year, Transfer Certificate of Title No. 10477 covering the property in question was issued by the Register of Deeds to Irene Cuizon. The latter died in 1978. In the extrajudicial settlement of the estate, her alleged half sister and sole heir Rufina adjudicated to herself all the property of the decedent including the property in question. After the notice of the extrajudicial settlement was duly published in a newspaper of general circulation, Rufina thereafter, executed a deed of Confirmation of Sale wherein she confirmed and ratified the deed of sale of December 29, 1971 executed by the late Irene and renounced and waived whatever rights, interest, and participation she may have in the property in question in favor of the petitioners. The deed was duly registered with the Registry of Deeds and annotated at the back of TCT No. 10477. Subsequently, TCT No. 12665 was issued in favor of the petitioners.On September 28, 1978, a petition for letters of administrator was filed before the Court of First Instance of Cebu (Sp. Proc. No. 3864-R) by respondent Domingo Antigua, allegedly selected by the heirs of Irene numbering seventeen (17) in all to act as administrator of the estate of the decedent. The petition was granted.Respondent Antigua as administrator filed an inventory of the estate of Irene. He included in the inventory the property in question which was being administered by Juan Arche, one of the petitioners. On June 27, 1979, respondent Antigua filed a motion asking the court for authority to sell the salt from the property and praying that petitioner Arche be ordered to deliver the salt to the administrator. The motion was granted and respondent court issued the following order:The administrator, thru this motion, informs the Court that the estate owns some beds and fish pond located in Opao, Mandaue City that these salt beds are producing salt which are now in the warehouse in Mandaue City, under the custody of Juan Arche that the value of the salt in the warehouse is estimated to be worth P5,000.00 are beginning to melt and, unless they are sold as soon as possible, they may depreciate in value. It is likewise prayed in this motion that Juan Arche be ordered to deliver the salt in question to the administrator such other products of the land now in his (Juan Arche) possession.xxx xxx xxxLet this motion be, as it is hereby GRANTED. The administrator is hereby authorized to sell the salt now in the custody of Juan Arche and the latter (Juan Arche) is hereby ordered to deliver the salt in question to the administrator in order to effect the sale thereof and he is likewise directed to deliver such other products of the land to the administrator.Subsequently, on three different occasions, respondent Segundo Zambo with the aid of several men, sought to enforce the order of the respondent court, compelling the petitioners to come to us on certiorari. On September 14, 1979, we issued a restraining order enjoining the respondents from enforcing the above order of the respondent court and from further interfering with the petitioners in their peaceful possession and cultivation of the property in question.The thrust of the petitioners' argument is that the respondent court, as a court handling only the intestate proceedings, had neither the authority to adjudicate controverted rights nor to divest them of their possession and ownership of the property in question and hand over the same to the administrator. Petitioners further contend that the proper remedy of the respondent administrator is to file a separate civil action to recover the same.On the other hand, the respondent administrator banked on the failure of the petitioners to first apply for relief in the court of origin before filing the present petition. According to him this was a fatal defect. In addition, the administrator stated that the deed of sale of December 29, 1971 lost its efficacy upon the rendition of judgment and issuance of the decree in favor of Irene Cuizon.It is a well-settled rule that a probate court or one in charge of proceedings whether testate or intestate 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. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is no dispute, well and good; but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so (Mallari v. Mallari, 92 Phil. 694; Baquial v. Amihan, 92 Phil. 501).Similarly, inValero Vda. de Rodriguez vs. CA., (91 SCRA 540) we held that for the purpose of determining whether a certain property should or should not be included in the inventory the probate court may pass upon the title thereto but such determination is not conclusive and is subject to the final decision in a separate a petition regarding ownership which may be instituted by the parties (3 Moran's Comments on the Rules of Court, 1970 Edition, pages 448-9 and 473: Lachenal v. Salas, L-42257, June 14, 1976, 71 SCRA 262, 266).In the instant case, the property involved is not only claimed by outside parties but it, was sold seven years before the death of the decedent and is duly titled in the name of the vendees who are not party to the proceedings. InBolisay vs.Alcid, (85 SCRA 213), this Court was confronted with a similar situation. The petitioners therein sought to annul the order of the respondent court in a special proceeding which in effect ruled that notwithstanding that the subject property was duly titled in the name of petitioners, the administratrix of the intestate estate involved in said proceeding had the right to collect the rentals of said property over the objection of the titled owners just because it was included in the inventory of said estate and there was an ordinary action in the regular court over the ownership thereof and the estate was one of the parties therein. This Court viewed the petition as one seeking for aprima faciedetermination and not a final resolution of the claim of ownership.We held that:... Considering that as aforestated the said property is titled under the Torrens System in the names of the petitioners, it does appear strange, in the light of the probate court's own ruling that it has no jurisdiction to pass on the issue of ownership, that the same court deemed the same as part of the estate under administration just because the administratrix, alleges it is still owned by the estate and has in fact listed it in the inventory submitted by her to the court.It does not matter that respondent - administratrix has evidence purporting to support her claim of ownership, for, on the other hand, petitioners have a Torrens title in their favor, which under the law is endowed with incontestability until after it has been set aside in the manner indicated in the law itself, which, of course, does not include, bringing up the matter as a mere incident in special proceedings for the settlement of the estate of deceased persons. In other words, in Our considered view, the mere inclusion in the inventory submitted by the administrator of the estate of a deceased person of a given property does not of itself deprive the probate court of authority to inquire into the property of such inclusion in case an heir or a third party claims adverse title thereto. To hold otherwise would render inutile the power of that court to make aprima faciedetermination of the issue of ownership recognized in the above quoted precedents. The correct rule is that the probate court should resolve the issue before it provisionally, as basis for its inclusion in or exclusion from the inventory. It does not even matter that the issue is raised after approval of the inventory because "apparently, it is not necessary that the inventory and appraisal be approved by the Court." (Francisco on the Rules of Court Vol. V-B, p. 99, citing Siy Chong Keng vs. Collector of Internal Revenue, 60 Phil. 494)In regard to such incident of inclusion or exclusion, We hold that if a property covered by Torrens Title is involved, the presumptive conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title.Having been apprised of the fact that the property in question was in the possession of third parties and more important, covered by a transfer certificate of title issued in the name of such third parties, the respondent court should have denied the motion of the respondent administrator and excluded the property in question from the inventory of the property of the estate. It had no authority to deprive such third persons of their possession and ownership of the property. Respondent court was clearly without jurisdiction to issue the order of June 27, 1979. Thus, it was unnecessary for the petitioners to first apply for relief with the intestate court.Even assuming the truth of the private respondents' allegations that the sale of December 29, 1971 was effected under suspicious circumstances and tainted with fraud and that the right of Rufina as alleged half-sister and sole heir of Irene remains open to question, these issues may only be threshed out in a separate civil action filed by the respondent administrator against the petitioners and not in the intestate proceedings.WHEREFORE, the petition for certiorari is GRANTED and the respondent court's order dated June 27, 1979 is hereby set aside and declared void as issued in excess of its jurisdiction. Our restraining order enjoining the enforcement of the June 27, 1979 order and the respondents from further interfering, through the intestate proceedings, in the peaceful possession and cultivation of the land in question by the petitioners is hereby made PERMANENT.

13. Bernardo v CAG.R. No. L-18148 February 28, 1963DEOGRACIAS BERNARDO, executor of the testate estate of the deceased EUSEBIO CAPILI; and the instituted heirs, namely: ARMANDO CAPILI and ARTURO BERNARDO, ET AL.,petitioners,vs.HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA REYES, namely: FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL.,respondents.Ambrosio Padilla Law Offices for petitioners.Romerico F. Flores for respondents.BARRERA,J.:This is a petition bycertiorarifor the review of the decision of the Court of Appeals affirming that of the Court of First Instance of Bulacan holding that the probate court in Special Proceeding 1101 had jurisdiction to determine the validity of the deed of donation in question and to pass upon the question of title or ownership of the properties mentioned therein.The facts are briefly stated in the appealed decision of the Court of Appeals as follows:Eusebio Capili and Hermogena Reyes were husband and wife. The first died on July 27, 1958 and a testate proceeding for the settlement of his estate was instituted in the Court of the Fist Instance of Bulacan. His will was admitted to probate on October 9, 1958, disposing of his properties in favor of his widow; his cousins Armando, Ursula, and Buenaventura, all surnamed Capili; and Arturo, Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes herself died on April 24, 1959. Upon petition of Deogracias Bernardo, executor of the estate of the deceased Eusebio Capili, she was substituted by her collateral relatives and intestate heirs, namely, Marcos, Vicente, Francisco and Dominga, all surnamed Reyes; and Jose, Constancia, Raymunda and Elena, all surnamed Isidoro.On June 12, 1959, the executor filed a project of partition in the testate proceeding in accordance with the terms of the will, adjudicating the estate of Eusebio Capili among the testamentary heirs with the exception of Hermogena Reyes, whose share was alloted to her collateral relatives aforementioned. On June 16, 1959 these relatives filed an opposition to the executor's project of partition and submitted a counter-project of partition of their own, claiming 1/2 of the properties mentioned in the will of the deceased Eusebio Capili on the theory that they belonged not to the latter alone but to the conjugal partnership of the spouses.The probate court, in two orders dated June 24, 1959 and February 10, 1960, respectively, set the two projects of partition for hearing, at which evidence was presented by the parties, followed by the submission of memoranda discussing certain legal issues. In the memorandum for the executor and the instituted heirs it was contended: (1) that the properties disposed of in the will of the deceased Eusebio Capili belonged to him exclusively and not to the conjugal partnership, because Hermogena Reyes had donated to him her half share of such partnership; (2) that the collateral heirs of Hermogena Reyes had no lawful standing or grounds to question the validity of the donation; and (3) that even assuming that they could question the validity of the donation, the same must be litigated not in the testate proceeding but in a separate civil action.Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts.1wph1.tThe oppositors and heirs of Hermogena Reyes, on their part, argued that the deed of donation itself was determinative of the original conjugal character to the properties, aside from the legal presumption laid down in Article 160 of the Civil Code, and that since the donation was null and void the deceased Eusebio Capili did not become owner of the share of his wife and therefore could not validly dispose of it in his will.On September 14, 1960, the probate court, the Honorable M. Mejia presiding, issued an order declaring the donation void without making any specific finding as to its juridical nature, that is, whether it was inter vivos or mortis causa, for the reason that, considered under the first category, it falls under Article 133 of the Civil Code, which prohibits donations between spouses during the marriage; and considered under the second category, it does not comply with the formalities of a will as required by Article 728 in relation to Article 805 of the same Code, there being no attestation clause. In the same order the court disapproved both projects of partition and directed the executor to file another," dividing the property mentioned in the last will and testament of the deceased Eusebio Capili and the properties mentioned in the deed of donation, Exhibit B, between the instituted heirs of the deceased Eusebio Capili and the legal heirs of the deceased Hermogena Reyes, upon the basis that the said properties were conjugal properties of the deceased spouses." On September 27, 1960, the executor filed a motion for new trial, reiterating and emphasizing the contention previously raised in their memorandum that the probate court had no jurisdiction to take cognizance of the claim of the legal heirs of Hermogena Reyes involving title to the properties mentioned in the will of Eusebio Capili and taking exception to the court's declaration of the nullity of the donation "without stating facts or provision of law on which it was based." The motion for new trial was denied in an order dated October 3, 1960.On appeal to the Court of Appeals the order appealed from being affirmed, petitioners filed this present petition for review bycertiorari.The petitioners-appellants contend that the appellate court erred in not declaring that the probate court, having limited and special jurisdiction, had generally no power to adjudicate title and erred in applying the exception to the rule.In a line of decisions, this Court consistently held that as a general rule, question as to title to property cannot be passed upon on testate or intestate proceedings,"1except where one of the parties prays merely for the inclusion or exclusion from the inventory of the property, in which case the probate court may pass provisionally upon the question without prejudice to its final determination in a separate action.2However, we have also held that when the parties interested are all heirs of the deceased, it is optional to them to submit to the probate court a question as to title to property, and when so submitted, said probate court may definitely pass judgment thereon (Pascual v. Pascual, 73 Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the consent of the parties, matters affecting property under judicial administration may be taken cognizance of by the court in the course of intestate proceeding, provided interests of third persons are not prejudiced (Cunanan v. Amparo, 80 Phil. 229, 232).In the light of this doctrine, may it be said correctly that the trial court as well as the Court of Appeals erred in upholding the power of the probate court in this case to adjudicate in the testate proceedings, the question as to whether the properties herein involved belong to the conjugal partnership of Eusebio Capili and Hermogena Reyes, or to the deceased husband exclusively?At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in the sense advanced by appellants that the trial court had completely no authority to pass upon the title to the lands in dispute, and that its decision on the subject is null and void and does not bind even those who had invoked its authority and submitted to its decision because, it is contended, jurisdiction is a creature of law and parties to an action can not vest, extend or broaden it. If appellants' contention is correct, then there can be no exception to the no-jurisdiction theory. But as has been stated in the case ofCunanan v. Amparo(supra)the Supreme Court speaking through Mr. Justice Pedro Tuason: "Determination of title to property is within the jurisdiction of Courts of First Instance. The responding Soriano's objection (that the probate court lacked jurisdiction to order the delivery of the possession of the lots to the estate) relates exclusively to the procedure, which is distinct from jurisdiction. It affects only personal rights to a mode of practice (the filing of an independent ordinary action) which may be waived". Strictly speaking, it is more a question of jurisdiction over the person, not over the subject matter, for the jurisdiction to try controversies between heirs of a deceased person regarding the ownership of properties alleged to belong to his estate, has been recognized to be vested in probate courts. This is so because the purpose of an administration proceeding is the liquidation of the estate and distribution of the residue among the heirs and legatees. Liquidation means determination of all the assets of the estate and payment of all the debts and expenses.3Thereafter, distribution is made of the decedent's liquidated estate among the persons entitled to succeed him. The proceeding is in the nature of an action of partition, in which each party is required to bring into the mass whatever community property he has in his possession. To this end, and as a necessary corollary, the interested parties may introduce proofs relative to the ownership of the properties in dispute. All the heirs who take part in the distribution of the decedent's estate are before the court, and subject to the jurisdiction thereof, in all matters and incidents necessary to the complete settlement of such estate, so long as no interests of third parties are affected.4In the case now before us, the matter in controversy is the question of ownership of certain of the properties involved whether they belong to the conjugal partnership or to the husband exclusively. This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among his heirs who are all parties to the proceedings, including, of course, the widow, now represented because of her death, by her heirs who have been substituted upon petition of the executor himself and who have appeared voluntarily. There are no third parties whose rights may be affected. It is true that the heirs of the deceased widow are not heirs of the testator-husband, but the widow is, in addition to her own right to the conjugal property. And it is this right that is being sought to be enforced by her substitutes. Therefore, the claim that is being asserted is one belonging to an heir to the testator and, consequently, it complies with the requirement of the exception that the parties interested (the petitioners and the widow, represented by dents) are all heirs claiming title under the testator.Petitioners contend additionally that they have never submitted themselves to the jurisdiction of the probate court, for the purpose of the determination of the question of ownership of the disputed properties. This is not borne by the admitted facts. On the contrary, it is undisputed that they were the ones who presented the project of partition claiming the questioned properties as part of the testator's asset. The respondents, as representatives or substitutes of the deceased widow opposed the project of partition and submitted another. As the Court of Appeals said, "In doing so all of them must be deemed to have submitted the issue for resolution in the same proceeding. Certainly, the petitioners can not be heard to insist, as they do, on the approval of their project of partition and, thus, have the court take it for granted that their theory as to the character of the properties is correct, entirely without regard to the opposition of the respondents". In other words, by presenting their project of partition including therein the disputed lands (upon the claim that they were donated by the wife to her husband), petitioners themselves put in issue the question of ownership of the properties which is well within the competence of the probate court and just because of an opposition thereto, they can not thereafter withdraw either their appearance or the issue from the jurisdiction of the court. Certainly, there is here a waiver where the parties who raise the objection are the ones who set the court in motion.5They can not be permitted to complain if the court, after due hearing, adjudges question against them.6Finally, petitioners-appellants claim that appellees are estopped to raise the question of ownership of the properties involved because the widow herself, during her lifetime, not only did not object to the inclusion of these properties in the inventory of the assets of her deceased husband, but also signed an extra-judicial partition of those inventoried properties. But the very authorities cited by appellants require that to constitute estoppel, the actor must have knowledge of the facts and be appraised of his rights at the time he performs the act constituting estoppel, because silence without knowledge works no estoppel.7In the present case, the deceased widow acted as she did because of the deed of donation she executed in favor of her husband not knowing that such deed was illegal, if inter-vivos, and ineffectual if mortis-causa, as it has not been executed with the required formalities similar to a will.WHEREFORE, the decision of the Court of Appeals being in accordance with law, the same is hereby affirmed with costs against appellants. So ordered.

14. Uriarte v CFIG.R. Nos. L-21938-39 May 29, 1970VICENTE URIARTE,petitioner,vs.THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL (12th Judicial District) THE COURT OF FIRST INSTANCE OF MANILA, BRANCH IV, JUAN URIARTE ZAMACONA and HIGINIO URIARTE,respondents.Norberto J. Quisumbing for petitioner.Taada, Teehankee & Carreon for respondents.DIZON,J.:On October 3, 1963 petitioner Vicente Uriarte filed an original petition forcertiorari docketed as G.R. L-21938 against the respondents Juan Uriarte Zamacona, Higinio Uriarte, and the Courts of First Instance of Negros Occidental and of Manila, Branch IV, who will be referred to hereinafter as the Negros Court and the Manila Court, respectively praying:... that after due proceedings judgment be rendered annulling the orders of 19 April 1963 (Annex 'H') and 11 July 1963 (Annex 'I') of respondent Negros court dismissing the first instituted Special Proceeding No. 6344, supra, and the order of 1 July 1963 (Annex 'K') of respondent Manila court denying petitioner'somnibusmotion to intervene and to dismiss the later-instituted Special Proceeding No. 51396,supra, both special proceedings pertaining to the settlement of the same estate of the same deceased, and consequently annulling all proceedings had in Special Proceeding No. 51396;supra, of the respondent Manila court as all taken without jurisdiction.For the preservation of the rights of the parties pending these proceedings, petitioner prays for the issuance of a writ of preliminary injunction enjoining respondents Manila court, Juan Uriarte Zamacona and Higinio Uriarte from proceeding with Special Proceeding No. 51396,supra, until further orders of this Court.Reasons in support of said petition are stated therein as follows:6. Respondent Negros court erred in dismissing its Special Proceeding No. 6344, supra, and failing to declare itself 'the court first taking cognizance of the settlement of the estate of' the deceased Don Juan Uriarte y Goite as prescribed in Rule 75 section 1 of the Rules of Court. Respondent Manila court erred in failing to dismiss its Special Proceeding No. 51396, supra, notwithstanding proof of prior filing of Special Proceeding No. 6344,supra, in the Negros court.The writ of preliminary injunction prayed for was granted and issued by this Court on October 24, 1963.On April 22, 1964 petitioner filed against the same respondents a pleading entitled SUPPLEMENTAL PETITION FOR MANDAMUS docketed in this Court as G.R. No. L-21939 praying, for the reasons therein stated, that judgment be rendered annulling the orders issued by the Negros Court on December 7, 1963 and February 26, 1964, the first disapproving his record on appeal and the second denying his motion for reconsideration, and further commanding said court to approve his record on appeal and to give due course to his appeal. On July 15, 1964 We issued a resolution deferring action on this Supplemental Petition until the original action for certiorari (G.R. L-21938) is taken up on the merits.On October 21, 1963 the respondents in G.R. L-21938 filed their answer traversing petitioner's contention that the respondent courts had committed grave abuse of discretion in relation to the matters alleged in the petition forcertiorari.It appears that on November 6, 1961 petitioner filed with the Negros Court a petition for the settlement of the estate of the late Don Juan Uriarte y Goite (Special Proceeding No. 6344) alleging therein, inter alia, that, as a natural son of the latter, he was his sole heir, and that, during the lifetime of said decedent, petitioner had instituted Civil Case No. 6142 in the same Court for his compulsory acknowledgment as such natural son. Upon petitioner's motion the Negros Court appointed the Philippine National Bank as special administrator on November 13, 1961 and two days later it set the date for the hearing of the petition and ordered that the requisite notices be published in accordance with law. The record discloses, however, that, for one reason or another, the Philippine, National Bank never actually qualified as special administrator.On December 19, 1961, Higinio Uriarte, one of the two private respondents herein, filed an opposition to the above-mentioned petition alleging that he was a nephew of the deceased Juan Uriarte y Goite who had "executed a Last Will and Testament in Spain, a duly authenticated copy whereof has been requested and which shall be submitted to this Honorable Court upon receipt thereof," and further questioning petitioner's capacity and interest to commence the intestate proceeding.On August 28, 1962, Juan Uriarte Zamacona, the other private respondent, commenced Special Proceeding No. 51396 in the Manila Court for the probate of a document alleged to be the last will of the deceased Juan Uriarte y Goite, and on the same date he filed in Special Proceeding No. 6344 of the Negros Court a motion to dismiss the same on the following grounds: (1) that, as the deceased Juan Uriarte y Goite had left a last will, there was no legal basis to proceed with said intestate proceedings, and (2) that petitioner Vicente Uriarte had no legal personality and interest to initiate said intestate proceedings, he not being an acknowledged natural son of the decedent. A copy of the Petition for Probate and of the alleged Will were attached to the Motion to Dismiss.Petitioner opposed the aforesaid motion to dismiss contending that, as the Negros Court was first to take cognizance of the settlement of the estate of the deceased Juan Uriarte y Goite, it had acquired exclusive jurisdiction over same pursuant to Rule 75, Section 1 of the Rules of Court.On April 19, 1963, the Negros Court sustained Juan Uriarte Zamacona's motion to dismiss and dismissed the Special Proceeding No. 6344 pending before it. His motion for reconsideration of said order having been denied on July 27, 1963, petitioner proceeded to file his notice of appeal, appeal bond and record on appeal for the purpose of appealing from said orders to this court on questions of law. The administrator with the will annexed appointed by the Manila Court in Special Proceeding No. 51396 objected to the approval of the record on appeal, and under date of December 7, 1963 the Negros Court issued the following order:Oppositor prays that the record on appeal filed by the petitioner on July 27, 1963, be dismissed for having been filed out of time and for being incomplete. In the meantime, before the said record on appeal was approved by this Court, the petitioner filed a petition for certiorari before the Supreme Court entitledVicente Uriarte, Petitioner, vs. Court of First Instance of Negros Occidental, et al., G.R. No. L-21938, bringing this case squarely before the Supreme Court on questions of law which is tantamount to petitioner's abandoning his appeal from this Court.WHEREFORE, in order to give way to the certiorari, the record on appeal filed by the petitioner is hereby disapproved.In view of the above-quoted order, petitioner filed the supplemental petition for mandamus mentioned heretofore.On April 15, 1963 Vicente Uriarte filed an Omnibus Motion in Special Proceeding No. 51396 pending in the Manila Court, asking for leave to intervene therein; for the dismissal of the petition and the annulment of the proceedings had in said special proceeding. This motion was denied by said court in its order of July 1 of the same year.It is admitted that, as alleged in the basic petition filed in Special Proceeding No. 6344 of the Negros Court, Vicente Uriarte filed in the same court, during the lifetime of Juan Uriarte y Goite, Civil Case No. 6142 to obtain judgment for his compulsory acknowledgment as his natural child. Clearly inferrable from this is that at the time he filed the action, as well as when he commenced the aforesaid special proceeding, he had not yet been acknowledged as natural son of Juan Uriarte y Goite. Up to this time, no final judgment to that effect appears to have been rendered.The record further discloses that the special proceeding before the Negros Court has not gone farther than the appointment of a special administrator in the person of the Philippine National Bank who, as stated heretofore, failed to qualify.On the other hand, it is not disputed that, after proper proceedings were had in Special Proceeding No. 51396, the Manila Court admitted to probate the document submitted to, it as the last will of Juan Uriarte y Goite, the petition for probate appearing not to have been contested. It appears further that, as stated heretofore, the order issued by the Manila Court on July 1, 1963 denied petitioner. Vicente Uriarte's Omnibus Motion for Intervention, Dismissal of Petition and Annulment of said proceedings.Likewise, it is not denied that to the motion to dismiss the special proceeding pending before the Negros Court filed by Higinio Uriarte were attached a copy of the alleged last will of Juan Uriarte y Goite and of the petition filed with the Manila Court for its probate. It is clear, therefore, that almost from the start of Special Proceeding No. 6344, the Negros Court and petitioner Vicente Uriarte knew of the existence of the aforesaid last will and of the proceedings for its probate.The principal legal questions raised in the petition for certiorari are (a) whether or not the Negros Court erred in dismissing Special Proceeding No. 6644, on the one hand, and on the other, (b) whether the Manila Court similarly erred in not dismissing Special Proceeding No. 51396 notwithstanding proof of the prior filing of Special Proceeding No. 6344 in the Negros Court.Under the Judiciary Act of 1948 [Section 44, paragraph (e)], Courts of First Instance have original exclusive jurisdiction over "all matters of probate," that is, over special proceedings for the settlement of the estate of deceased persons whether they died testate or intestate. While their jurisdiction over such subject matter is beyond question, the matter ofvenue, or the particular Court of First Instance where the special proceeding should be commenced, is regulated by former Rule 75, Section 1 of the Rules of Court, now Section 1, Rule 73 of the Revised Rules of Court, which provides that the estate of a decedent inhabitant of the Philippines at the time of his death, whether a citizen or an alien, shall be in the court of first instance in the province in which he resided at the time of his death, andif he is an inhabitant of a foreign country, the court of first instance of any province in which he had estate. Accordingly, when the estate to be settled is that of a non-resident alien like the deceased Juan Uriarte y Goite the Courts of First Instance in provinces where the deceased left any property have concurrent jurisdiction to take cognizance of the proper special proceeding for the settlement of his estate. In the case before Us, these Courts of First Instance are the Negros and the Manila Courts province and city where the deceased Juan Uriarte y Goite left considerable properties. From this premise petitioner argues that, as the Negros Court had first taken cognizance of the special proceeding for the settlement of the estate of said decedent (Special Proceeding No. 6344), the Manila Court no longer had jurisdiction to take cognizance of Special Proceeding No. 51396 intended to settle the estate of the same decedent in accordance with his alleged will, and that consequently, the first court erred in dismissing Special Proceeding No. 6344, while the second court similarly erred in not dismissing Special Proceeding No. 51396.It can not be denied that a special proceeding intended to effect the distribution of the estate of a deceased person, whether in accordance with the law on intestate succession or in accordance with his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true, however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings, for the settlement of the estate of a deceased person take precedence over intestate proceedings for the same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings pending before a court of first instance it is found it hat the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed. This, however, is understood to be without prejudice that should the alleged last will be rejected or is disapproved, the proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that proceedings for the probate of a will enjoy priority over intestate proceedings.Upon the facts before Us the question arises as to whether Juan Uriarte Zamacona should have filed the petition for the probate of the last will of Juan Uriarte y Goite with the Negros Court particularly in Special Proceeding No. 6344 or was entitled to commence the corresponding separate proceedings, as he did, in the Manila Court.The following considerations and the facts of record would seem to support the view that he should have submitted said will for probate to the Negros Court, either in a separate special proceeding or in an appropriate motion for said purpose filed in the already pending Special Proceeding No. 6344. In the first place, it is not in accord with public policy and the orderly and inexpensive administration of justice to unnecessarily multiply litigation, especially if several courts would be involved. This, in effect, was the result of the submission of the will aforesaid to the Manila Court. In the second place, when respondent Higinio Uriarte filed an opposition to Vicente Uriarte's petition for the issuance of letters of administration, he had already informed the Negros Court that the deceased Juan Uriarte y Goite had left a will in Spain, of which a copy had been requestedfor submission to said court; and when the other respondent, Juan Uriarte Zamacona, filed his motion to dismiss Special Proceeding No. 6344, he had submitted to the Negros Court a copy of the alleged will of the decedent, from which fact it may be inferred that, like Higinio Uriarte, he knew before filing the petition for probate with the Manila Court that there was already a special proceeding pending in the Negros Court for the settlement of the estate of the same deceased person. As far as Higinio Uriarte is concerned, it seems quite clear that in his opposition to petitioner's petition in Special Proceeding No. 6344, he had expressly promised to submit said will for probate to the Negros Court.But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan Uriarte Zamacona filed the petition for the purpose with the Manila Court. We can not accept petitioner's contention in this regard that the latter court had no jurisdiction to consider said petition, albeit we say that it was not theproper venuetherefor.It is well settled in this jurisdiction thatwrong venueis merely awaiveableprocedural defect, and, in the light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is enough to consider in this connection that petitioner knew of the existence of a will executed by Juan Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial petition filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the existence (presence) of the alleged last will in the Philippines and of the filing of the petition for its probate with the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion for the dismissal of Special Proceeding No. 6344. All these notwithstanding, it was only on April 15, 1963 that he filed with the Manila Court in Special Proceeding No. 51396 an Omnibus motion asking for leave to intervene and for the dismissal and annulment of all the proceedings had therein up to that date; thus enabling the Manila Court not only to appoint an administrator with the will annexed but also to admit said will to probate more than five months earlier, or more specifically, on October 31, 1962. To allow him now to assail the exercise of jurisdiction over the probate of the will by the Manila Court and the validity of all the proceedings had in Special Proceeding No. 51396 would put a premium on his negligence. Moreover, it must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the latter was not theproper venuetherefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction; more so in a case like the present where the objection against said proceedings is raised too late.In his order of April 19, 1963 dismissing Special Proceeding No. 6344, Judge Fernandez of the Negros Court said that he was "not inclined to sustain the contention of the petitioner that inasmuch as the herein petitioner has instituted Civil Case No. 6142 for compulsory acknowledgment by the decedent such action justifies the institution by him of this proceedings. If the petitioner is to be consistent with the authorities cited by him in support of his contention, the proper thing for him to do would be to intervene in the testate estate proceedings entitled Special Proceedings No. 51396 in the Court of First Instance of Manila instead of maintaining an independent action, for indeed his supposed interest in the estate of the decedent is of his doubtful character pending the final decision of the action for compulsory acknowledgment."We believe in connection with the above matter that petitioner is entitled to prosecute Civil Case No. 6142 until it is finally determined, or intervene in Special Proceeding No. 51396 of the Manila Court, if it is still open, or to ask for its reopening if it has already been closed, so as to be able to submit for determination the question of his acknowledgment as natural child of the deceased testator, said court having, in its capacity as a probate court, jurisdiction to declare who are the heirs of the deceased testator and whether or not a particular party is or should be declared his acknowledged natural child (II Moran on Rules of Court, 1957 Ed., p. 476; Conde vs. Abaya, 13 Phil. 249; Severino vs. Severino, 44 Phil. 343; Lopez vs. Lopez, 68 Phil. 227, and Jimoga-on vs. Belmonte, 47 O. G. 1119).Coming now to the supplemental petition formandamus(G.R. No. L-21939), We are of the opinion, and so hold, that in view of the conclusions heretofore stated, the same has become moot and academic. If the said supplemental petition is successful, it will only result in compelling the Negros Court to give due course to the appeal that petitioner was taking from the orders of said court dated December 7, 1963 and February 26, 1964, the first being the order of said court dismissing Special Proceeding No. 6344, and the second being an order denying petitioner's motion for the reconsideration of said order of dismissal. Said orders being, as a result of what has been said heretofore beyond petitioner's power to contest, the conclusion can not be other than that the intended appeal would serve no useful purpose, or, worse still, would enable petitioner to circumvent our ruling that he can no longer question the validity of said orders.IN VIEW OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered denying the writs prayed for and, as a result, the petition forcertiorarifiled in G.R. No. L-21938, as well as the supplemental petition formandamusdocketed as G.R. No. L-21939, are hereby dismissed. The writ of preliminary injunction heretofore issued is set aside. With costs against petitioner.

15. Del Rosario v Del RosarioG.R. No. L-45761 April 28, 1939JULIA DEL ROSARIO, ET AL.,plaintiffs-appellants,vs.ANTONIO DEL ROSARIO, ET AL.,defendants-appellees.Galo Al. Acua for appellants.M. H. de Joya and Fidel J. Silva for appellees.AVANCEA,C. J.:The complaint alleges: That Ramon del Rosario and Florencia Arcega were husband and wife, the former having died in 1895 and the latter in 1933; that the plaintiffs and the defendants are the heirs of both; that Ramon del Rosario died without a will, leaving properties of the conjugal partnership valued at P19,000; that after the death of Ramon del Rosario, his widow Florencia Arcega administered these properties and with the products thereof acquired others, which are those described in paragraph 9 of the complaint. It is, moreover, inferred from the complaint that after the death of Ramon del Rosario, his intestate was not commenced and the conjugal properties were not liquidated until Florencia Arcega died, after which the latter's testamentary proceedings were initiated and are now in progress.The plaintiffs bring this action to recover their share not only in the conjugal properties left by Ramon del Rosario but also in those acquired by Florencia Arcega with the products of said properties.A demurrer was interposed to the complaint on the ground that there is another action pending between the same parties and for the same cause of action; that there is a defect or party plaintiffs and party defendants, and that the complaint does not allege facts sufficient to constitute a cause of action.The court sustained this demurrer and dismissed the case. From this resolution an appeal was taken.Both in the Court of First Instance as well as in this court, the parties discuss whether Act No. 3176, or the former law, is applicable to the case. Act No. 3176 only amends the former law in the sense that upon the death of any of the spouses the community property shall be liquidated in the testamentary or intestate proceedings of the deceased spouse. But whatever law might be applicable, and even assuming that it was that prior to Act No. 3176, the intestate of Ramon del Rosario not having been commenced upon his death in 1895 until his widow Florencia Arcega also died in 1933, and the testamentary proceedings of Florencia Arcega having been subsequently initiated, wherein, among other things, the liquidation of her conjugal properties with the deceased Ramon del Rosario should be made, the pendency of these testamentary proceedings of the deceased wife excludes any other proceeding aimed at the same purpose (Zaidevs.Concepcion and Quintana, 32 Phil., 403). At the rate, the plaintiffs have a right to intervene in these proceedings as parties interested in the liquidation and partition of the conjugal properties of the deceased spouses Ramon del Rosario and Florencia Arcega among their heirs.The appealed judgment is affirmed, with the costs to the appellant. So ordered.

16. Dolar v Roman Catholic[G.R. No. 46521. October 14, 1939.]

In the matter of the will of the deceased Paulino Diancin. TEOPISTA DOLAR, administratrix-appellant, OLIMPIA, RITA, JOSEFINA and ROSARIO DIANCIN, appellants, v. ROMAN CATHOLIC BISHOP OF JARO,Appellee.

Montinola & Tirol forAppellants.

William E. Greenbaum and Luis Hofilea forAppellee.

SYLLABUSDESCENT AND DISTRIBUTION, CONJUGAL PROPERTY; OBLIGATORY LEGITIME; LEGACY; FREE THIRD; USUFRUCT OF THE WIDOW. Unless the widow T. D., the heirs of the deceased by his two marriages, the representative of the legacy for P8,000 and the creditors of the estate, otherwise come to an agreement, the partition should be made with the intervention of all the interested parties according to law. All the debts and administration expenses shall first be paid (section 753 of the Code of Civil Procedure). The conjugal properties of the first marriage shall be liquidated so as to determine those corresponding to the children had with the deceased M. D., as her heirs, and those corresponding to the deceased. Likewise, the conjugal properties of the second marriage shall be liquidated, so as to determine the half corresponding to the widow T. D. and the other half corresponding to the deceased (article 1426 of the Civil Code). The properties corresponding to the deceased, acquired during his first and second marriages, constitute his estate, which should be partitioned among his heirs, namely, his children by his two marriages and his widow T. D. (articles 931 and 834 of the Civil Code). There being forced heirs, the legacy of P8,000 should be taken from the free third only, without touching the obligatory legitime (article 813 of the Civil Code), and for this purpose, the properties to be partitioned should first be divided into three equal parts, two of which constitute the obligatory legitime, and the other the free third, so as to determine the properties from which the legacy should be taken. On the other hand, this legacy being by way of usufruct, the heirs may comply therewith or deliver to the legatee properties equivalent to the free third (article 820, paragraph 3, of the Civil Code). The fruits of the properties already received or to be received shall answer for the legacy with respect to one-third thereof only, the remaining two-thirds being those of the heirs (article 813 of the Civil Code). The legal usufruct of the widow should be taken from the third available for betterment (article 835 of the Civil Code).D E C I S I O NAVANCEA ,C.J.:Paulino Diancins first wife was Margarita Doctura and Teopista Dolar his second.

By his first marriage he had five children, named Lucas, Guadalupe, Bibiana, Fidel and Tiburcio. Lucas died leaving three children, named Natividad, Jose and Demetria. Guadalupe also died leaving three children also, named Natalia, Jesus and Sulpicio Palma. Bibiana, Fidel and Tiburcio are still living.

By his second marriage, he had four children, named Olimpia, Rita, Josefina and Rosario.

He acquired certain properties during his first marriage and still others during his second. He left as will before he died wherein he sets out all his properties and distributes them among his widow Teopista Dolar and his heirs by both marriages. He also left a legacy of P8,000 to be spent for the altar of the church under construction in the Municipality of Damangas, ordering that this be taken from the fruits of all the properties before they are partitioned among his heirs.

After the commencement of the testamentary proceedings and the appointment therein of Topista Dolar as judicial administratrix, the latter first filed a project of partition which was not approved because of the oppositions of certain heirs, and thereafter, on November 30, 1936, filed another project of partition which was not also approved because of the opposition of the representative of the Church of Dumangas, the Bishop of Jaro. In disapproving this last project of partition, the Court ordered the administratrix to take immediate possession of all the properties of the estate and pay from the products thereof the legacy of P8,000 in favor of the Bishop of Jaro, upon payment of this legacy, to submit another new project of partition for its arrival. From this resolution the administratrix Teopista Dolar and the heirs of the deceased by his second marriage, appealed.

We note, first of all, that the last project of partition submitted by the administratrix is not concurred in by the heirs of the deceased by his first marriage to whom have been allotted their shares of the state corresponding to them.

In the light of the foregoing facts and the allegations of the parties in this instance, we hold that, unless the widow Teopista Dolar, the heirs of the deceased by his two marriages, the representatives of the legacy for P8,000, and the creditors of the state, otherwise come to an agreement. the partition should be made with the intervention of all the interested parties according to law. All the debts and administration expenses shall first be paid. (Section 753 of the Code of Civil Procedure). The conjugal properties of the first marriage shall be liquidated so as to determine those corresponding to the children had with the deceased Margarita Doctura, as her heirs, and those corresponding to the deceased. Likewise, the conjugal properties of the second marriage shall be liquidated, so as to determine the half corresponding to the widow Teopista Dolar and the other half corresponding to the deceased (article 1426 of the Civil Code). The properties corresponding to the decease(i, acquired during his first and second marriages, constitute his estate, which should be partitioned among his heirs, namely, his children by his two marriages and his widow Teopista Dolar (articles 931 and 834 of the Civil Code). There being forced heirs, the legacy of P8,000 should be taken from the free third only, without touching the obligatory legitime (article 813 of the Civil Code), and for this purpose, the properties to be partitioned should first be divided into three equal parts, two of which constitute the obligatory legitime, and the other the free third, so as to determine the properties from which the legacy should be taken. On the other hand, this legacy being by way of usufruct, the heirs may comply therewith or deliver to the legatee properties equivalent to the free third (article 820, Paragraph 3, of the Civil Code). The fruits of the properties already received or to be received shall answer for the legacy with respect to one-third thereof only, the remaining two-thirds being those of the heirs (article 813 of the Civil Code). The legal usufruct of the widow should be taken from the third available for betterment (article 835 of the Civil Code).

After the partition is made in accordance with the foregoing, there should be delivered to the heirs the properties corresponding to them as legitime. As to the free third, the testator not having disposed of its ownership, it shall belong to all the forced heirs, in equal parts, subject to the legacy as to its fruits.

The appealed resolution is modified in accordance with the foregoing, without special pronouncement as to the cost. So ordered.

17. Alfonso v Natividad[G.R. No. 2518. April 30, 1906. ]

HERMENEGILDO ALFONSO,Plaintiff-Appellant, v. PEDRO NATIVIDAD, ET AL.,Defendants-Appellees.

Leocadio Joaquin, forAppellant.

J. Gerona, forAppellees.

SYLLABUS1. REALTY; LOAN; SECURITY; MORTGAGE; LIEN. The delivery of title deeds to real estate as security for a loan of money does not constitute either a mortgage of the land or a lien thereon.

2. ID.; CONJUGAL PARTNERSHIP. During the marriage, land was conveyed to the wife. The evidence did not show to whom the money belong with which the land was brought. Held, That it became the property of the conjugal partnership (Civil Code, art 1407)

3 ID.; ID.; ID.; ADMINISTRATION; THIRD. When a conjugal partnership is dissolved by the death of the husband it must be liquidated in the proceedings for the settlement of the estate of the husband.

4. ID.; ID.; ID.; ADMINISTRATORS; THIRD PARTY. The administrator appointed in such proceedings is charged with such liquidation under the direction of the court and may maintain an action against a third person to recover possession of property belonging to the dissolved conjugal partnership.

5. ID.; ID.; SALE; "PACTO DE RETRO;" HEIRS. Real estate belonging to a conjugal partnership was sold by the spouses during the marriage with pacto de retro. After the death of the husband the wife with her own money, acting for herself and not for the dissolved partnership, repurchased the property. Held, That it became thereby her separate property and the heirs of the husband no interest therein.

D E C I S I O N

WILLARD,J.:The plaintiff, as the administrator of the estate of Pedro Angeles, deceased, brought this action against Pedro Natividad and Silvestre Flores for the recovery of two separate parcels of land in the Province of La Laguna, alleging that Silvestre Flores was wrongfully in possession of the tract of land situated in the barrio of Santisima Cruz, in the pueblo of Santa Cruz, and that Pedro Natividad was in the unlawful possession of the other tract of land situated in the barrio of Bunuhan, in the pueblo of Pila. The controversy between the plaintiff and Pedro Natividad is entirely distinct from the controversy between him and Silvestre Flores, and neither controversy has anything at all to do with the other, and they are in effect two distinct and separate actions.

(1) The fact in the reference to the parcel of land occupied by Pedro Natividad are as follows: Pedro Angeles and Tomasa Mundanao were married prior to the year 1888, and during their marriage Tomasa acquired the legal title to the tract of land here in question. On the 14th day of July, 1889, Pedro Angeles and his wife, Tomasa, executed and delivered the following document:jgc:chanrobles.com.ph

"We, Pedro de los Angeles and Tomasa Mundanao, husband and wife, natives and residents of the town of Santa Tomasa Cruz, Province of La Laguna, of age, hereby acknowledge to have received from Pedro Natividad and his wife, Agapita Guilatro, the sum of 500 pesos, in silver coin, which we promise to return subject to no condition whatsoever as soon as we get the money.

"And as security therefor we hereby pledge the title deed to a piece of land in the barrio of Banuhan of the town of Pila, the boundaries of which are set forth in the said document. In witness thereof we affix our signatures hereto.

"Nagcarlang, July 14, 1889.

(Signed) "PEDRO ANGELES.

(Signed) "TOMASA MUNDANAO."cralaw virtua1aw library

The document referred to in this agreement constituted the title papers to the land in question, and they were then delivered to Pedro Natividad, and he now has then in his possession. Pedro Angeles died in the year 1889, after the execution of this document. Tomasa died in March, 1901. Pedro Natividad testified at the trial that when Tomasa died he took possession of the land waiting for some of the heirs of the said Pedro and Tomasa to appear and pay the debt due him. He paid the land taxes, but never cultivated the land and never received anything from it, as the evidence in the case shows.

The theory of the plaintiff is the property belonged to the conjugal partnership during the life of the spouses; of the husband, its affairs should by law be liquidated and settled by the representatives of the husband; that he is such representative and is entitled to the possession of the property for the purpose of liquidating the affairs of the conjugal partnership. The claim of Pedro Natividad is that the property was not the property of the conjugal partnership, but was but was the private property of Tomasa; that it was bought with her money and that the husband had no interest therein. There is no evidence in the case to show from what source the money came which was used to buy the land. Although the legal title was taken in the name of the wife, yet in all proceedings, including the proceedings relating to the judicial possession which was given to the wife, the husband appeared and took part. Article 1407 of the Civil Code is as follows:jgc:chanrobles.com.ph

"All the property of the marriage shall be considered as partnership property until it is proven that it belongs exclusively to the husband or the wife."cralaw virtua1aw library

The facts of this case bring it within the terms of that article. In the absence of proof that the money with which the land was bought belonged to the wife, it must be declared to be conjugal property.

The next question to considered is, Who is the person entitled to liquidate the affairs of the conjugal partnership when it is dissolved by the death of the husband? The Civil Code makes no express provisions on this subject. Article 1418 says that when the partnership is dissolved the inventory shall at once be made, but it does not say by whom. Article 1428 is as follows:jgc:chanrobles.com.ph

"With regard to making the inventory, rules for the appraisal and sale of the property belonging to the conjugal partnership, guaranty and security for the respective dowries, and all other particulars, not expressly fixed in this chapter, the prescriptions of section fifth, chapter fifth title third, book third, and section second and third, chapter third of this title shall be observed."cralaw virtua1aw library

Among the articles found in section 5, referred to in this article, is article 1014, which is as follows:jgc:chanrobles.com.ph

"An heir who may have in his possession the property of the estate or a part thereof, and who may wish to make use of the benefit of inventory or of the right to deliberate, shall estate this to the judge of competent jurisdiction in testamentary or intestate proceedings, within ten days following that on which he has become aware that he is such an heir, if he resides in the place where deceased may had died. If he resides outside of it the period shall be thirty days.

"In either case the heir must request, at the same time, the making of the inventory and the citation of the creditors and legatees in order that they may be present thereat if they wish to."cralaw virtua1aw library

The only provision of the Code of Civil Procedure which seems directly applicable is section 685, which is as follows:jgc:chanrobles.com.ph

"Community property. One-half the community property, as determined by the law in force in the Philippine Islands before the 13th day of August, 1889, belonging to a husband or wife, and shall be deemed to belong to the deceased husband and wife, and shall be inventoried and accounted for, and distributed as a part of the estate, in the same manner as all other property belonging to the estate."cralaw virtua1aw library

This section can not be so construed as to require one-half of the property of the conjugal partnership to be inventoried as the exclusive property of the deceased spouse before any settlement of the affairs of the partnership. Such a construction would be in direct violation of the law, which requires that the partnership property be used to pay its debts, and provides that one-half of the net proceeds only belong to each spouse. (Art. 1426, Civil Code.) This section (685) must mean that when the partnership affairs have been settled, and all its debts and obligations discharged, then one-half of the net proceeds shall be considered as the exclusive property of the deceased spouse.

By the provisions of the new Code of Civil Procedure in the settlement of estates of deceased persons it is necessary to appoint commissioners, before whom the creditors of the deceased must present their claims within a time fixed by the court. The husband is the administrator of the conjugal partnership. (Art. 1412.) His debts contracted during the marriage are its debts. (Art. 1418.) When a conjugal partnership is dissolved by the death of the husband it would be extremely difficult to settle his estate in accordance with the provisions of the present Code of Procedure without settling the partnership affairs. It is difficult to harmonize the new system with the part of the old which remains, but we conclude that when the partnership is dissolved by the death of the husband the inventory which is mentioned in article 1418 should be made, and the partnership affairs settled in the Court of First Instance which takes jurisdiction of the settlement of his estate, and in the same proceeding. This view being adopted, it follows as a necessary consequence that the executor or administrator appointed in that proceeding must be the person who is entitled to the custody of the property of the conjugal partnership while the settlement is being made.

This construction of the law does not deprive the wife, the surviving partner, of all intervention in the settlement of the affairs of the partnership, for in intestate estates she is entitled to be appointed administratrix of her husbands estate, unless some good reason for not appointing her is shown.

Applying these principles to the present case it appears that the partnership was dissolved by the death of the husband; that its affairs should be settled in the proceedings for the settlement of his estate; that the plaintiff is the administrator appointed in that proceeding; that the property in question belonged to the partnership, and that therefore the plaintiff is entitled to maintain this action. In the settlement of the affairs of the partnership hereafter, this, with all other property of the partnership, including the debt of Pedro Natividad.

The question whether or not this rule for the settlement of the affairs of the conjugal partnership when it is dissolved by the death of the husband, is equally applicable when the partnership is dissolved by the death of the wife, we do not consider.

The delivery of the title deeds to the property in question to Pedro Natividad, in connection with what is said in the document above quoted, did not create any lien in his favor upon the land in question, nor entitle him to retain it until his debt was paid.

(2) The facts in reference to the tract of land claimed by Silvestre Flores are as follows: The land belonged to the conjugal partnership. Before the death of the husband, the husband and wife had sold it to Alejandro Teodoro for 300 pesos with the right of repurchase. Pedro Angeles died without having exercised this right. After his death his widow, Tomasa, with money of her own interest, and not in the interest of the dissolved partnership. She afterwards sold it to Silvestre Flores, the defendant.

This repurchase of the land her after the death of her husband gave her the sole ownership thereof, and the heirs of her husband acquired no rights therein by her repurchase.

The court below entered judgment in favor of both defendants. The judgment, so far as Silvestre Flores is concerned, is affirmed, with the costs of this instance against theAppellant. The judgment directed the payment of a certain sum by Flores to the administrator. In this respect we think the court committed an error, but as Flores did not appeal, that error can not be corrected.

As to Pedro Natividad the judgment is reversed, and the cause remanded to the court below, with directions to enter judgment for the plaintiff for the possession of the property in question as the property of the conjugal partnership of Pedro Angeles and Tomasa Mundanao. No costs, as respects Pedro Natividad, will be allowed to the plaintiff in this court. After the expiration of twenty days let final judgment be entered in accordance herewith and ten days thereafter let the case be remanded to the lower court for proper procedure. So ordered.

18. Cruz v De JesusG.R. No. L-30491 March 2, 1929DONATO CRUZ, ET AL.,plaintiffs-appellants,vs.TEOFILO DE JESUS, ET AL.,defendants-appellees.VILLA-REAL,J.:The present appeal is taken by plaintiffs Donato Cruz and others, from an order of the Court of First Instance of Neuva Ecija, denying the motion presented by them, praying that they be permitted to amend their complaint as follows:1. That instead of the title Partition the said complaint should be entitled Liquidation and partition, and2. That the following should be inserted after par. 5 as paragraph 5A:That Julian Nabong left no debt outstanding at her death nor any money or crdit payable to the estate and that lands described from section (a) to section (m) inclusive of paragraph 4 are free from all liens and incumbrances since then up to the present time.The plaintiffs filed said motion in pursuant of the order dated May 2, 1928, the dispositive part of which is as follows:By virtue of the considerations, the court hold that the proper action for the partition of property belonging to a conjugal partnership dissolved by the death of one of the spouses, one of the participants being the surviving spouse, is the estate or the intestate proceeding for the settlement of the estate of the deceased spouse, wherein said conjugal property must first be liquidated before the partition is made. Five days are hereby given the plaintiff, from the receipt hereof, to amend the complaint, if it admit of the same,in order to make it accord with the theory sustained by the court in this order.In support of their appeal, the appellants assigned the following alleged errors as committed by the court below in its judgment, to wit:The lower court erred:1. In denying the partition of the lands in question among the parties concerened;2. In being of opinion that liquidation and administration are necessary before partition when there are no debts or credits to be liquidated;3. In not admitting the amendment to the complaint; and4. In refusing to hear the case fully and denying the motion for new trial.The only question to determine in the present appeal is whether or not an action lies for the liquidation and partition of the property of a conjugal partnership dissolved by the death of the wife, said property having been in the possession of the surviving spouse for many years, without his having made any inventory thereof, nor liquidated and partitioned it, and it not appearing that there is any debt to pay.Section 685 of Act No. 190, as amended by Act No. 3176, provides as follows:SEC. 685. When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts thereof shall be paid, in the testamentary or intestate proceedings of the deceased spouse, in accordance with the provisions of this Code relative to the administration and liquidation of the estates of deceased persons, or in an ordinary liquidation and partition proceeding, unless the parties, being all of age and legally capacitated, avail themselves of the right granted to them by this Code of proceedings of the extrajudicial partition and liquidation of said property.In case it is necessary to sell any portion of said community property in order to pay the outstanding debts and obligations of the same, such sale shall be made in the manner and with the formalities established by this Code for the sale of the property of deceased persons. Any sale, transfer, alienation or disposition of said property effected without said formalities shall be null and void, except as regards the portion that belonged to the vendor at the time the liquidation and partition was made.It is to be noted that this legal provision establishes two methods of liquidating the property of a conjugal partnership, if the marriage is dissolved by the death of one of the spouses: the first by a testate or intestate proceeding according to whether the deceased died with or without a will; and the other by an ordinary proceeding for liquidation and partition.According to the legal provision quoted above, when the marriage is dissolved by the death of the wife, the legal power of management of the husband ceases, passing to the administrator appointed by the court in the testate or intestate proceedings instituted to that end if there be any debts to be paid, and when there is no debt pending, the liquidation and partition may be made in an ordinary proceeding for that purpose.Since the complaint for partition alleges that there are no debts to pay, and as it does not appear that there are any, paid action will lie, for while it is true that it prays for a liquidation of the property of the conjugal partnership dissolved by the death of Juliana Nabong, said liquidation is implied in the action for partition (Remolino and Bautista vs. Peralta, G. R. No. 10834).1For the foregoing considerations, we are of the opinion and hold, that in accordance with section 685 of Act No. 190, as amended by Act No. 3176, when there are no debts to pay, the liquidation and partition of the property of the conjugal partnership, dissolved by the death of one of the spouses, may be made in an ordinary action instituted for that purpose.By virtue whereof, the order appealed from is revoked, and it is ordered that the case be remanded to the court of origin for further proceedings, without prejudice to the right of any creditor of the dissolved conjugal partnership, and without special pronouncement as to costs.

19. De la Rama v De la RamaG.R. No. 1056 March 13, 1907AGUEDA BENEDICTO DE LA RAMA,appellee,vs.ESTEBAN DE LA RAMA,appellant.Ledesma, Sumulong & Quintos for appellant.Coudert Brothers, Aylett R. Cotton & Lionel D. Hargis for appellee.WILLARD,J.:On July 5, 1902, the Court of First Instance of the Province of Iloilo entered a final judgment in this case, decreeing a divorce to the plaintiff on the ground of the husband's adultery, as well as the payment of 81,042.76 pesos due her as her unpaid share of the property belonging to the conjugal partnership, as well as the sum of 3,200 pesos as an allowance for their support since the date on which the action was instituted.From the judgment the defendant appealed to this court, which, on December 8, 1903, reversed the decree of the Court of First Instance, incorporated in its opinion certain findings of fact, and ordered judgment absolute that the complaint be dismissed. (Benedicto vs. De la Rama, 3 Phil. Rep., 34.) Thereafter the plaintiff appealed to the Supreme Court of the United States, which on April 2, 1906, reversed the judgment of this Court. (De la Rama, vs. De la Rama, 201, U. S., 303.) The opinion of the supreme court of the United States concludes as follows:We have reached the conclusion that there is no such preponderance of evidence in favor of the theory of plaintiffs guilt as authorized the Supreme Court to set aside the conclusions of the court below upon the ground that these findings were plainly and manifestly against the weight of the evidence. In this connection it is proper to bear in mind that the trial judge had all these witnesses before him and doubtless formed his conclusions largely from their appearance on the stand, their manner of giving testimony, and their apparent credibility. Under the circumstances we think the Supreme Court should have affirmed rather than reversed the action of the lower court.While the right of the plaintiff to her proportion of the original property, to alimony pending suit, and to other allowances claimed is the basis of our jurisdiction, the decree of the Supreme Court in dismissing plaintiff's petition renders it unnecessary to review the action of the Court of First Instance in fixing the amount that it held plaintiff was entitled to recover. We are, therefore, of the opinion that the decree of the Supreme Court dismissing the action must be reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.After the case had been remanded to this court, and on the 2d of November, 1906, the plaintiff made a motion that the judgment of the Court of First Instance be affirmed an order was made for the submission of printed briefs upon certain questions of adultery. This court sustained those assignments and said:Our conclusion is that neither one of the parties is entitled to a divorce. The result makes in unnecessary to consider that part of the judgment which relates to the settlement of the conjugal partnership.The action of this court upon those four assignment of error relating to adultery was reversed by the Supreme Court of the United States, and by the decision of that court there were definitely disposed of. The other assignment of error relate to that part of the decision of the Court of First Instance with treats of the division of the conjugal property, the allowance of alimony, and the order of the court below that the case be referred to the fiscal for criminal proceedings against the defendant. As has been said, these assignments of error were not considered by this court in view of the result which it reached upon the other assignments. Nor were they discussed by the Supreme Court of the United States.The claim of the appellant now is, however, that the whole case was finally disposed of by the decision of the latter court, and that the only thing remaining for this court as to do is to affirm the judgment of the Court of First Instance in its entirely.With this view we can not agree. The only thing considered by the Supreme Court of the United States was that part of the decision of the Court of First Instance which related to the right of the plaintiff to a divorce. It did not pass upon the division of the conjugal property. Its order was that the case be remanded to this court for further proceedings not inconsistent with its opinion. If the contention of the plaintiff is true, it seems that the order of that court and affirming that of the Court of First Instance. By remanding the case to this court for further proceedings not inconsistent with the opinion of the Supreme Court, it seems to have been the intention of that court that this court should dispose of the assignments of error not already of.The fifth assignment of error is as follows:Se ha infringido el articulo 1418 y otros del Codigo Civil al admitir el Juzgado, dentro del presente juicio, el avaluo y division efectiva de los supuestos bienes gananciales.It was claimed by this defendant, in his brief in his original appeal to this court in support of this assignment of error, that it was not proper to settle the affairs of the conjugal partnership in divorce proceedings, and that no such settlement of a conjugal partnership could ever be made until there had been a final judgment ordering the divorce, from which no appeal had been taken, or as to which the time to appeal had expired, and in his argument in this court in the motion presented on the 2ds of November, 1906, the repeats the same claim.In our opinion, however, this assignment of error was disposed of by the decision of the Supreme Court of the United States. As was said in that decision , the jurisdiction of that court depended entirely upon that part of the judgment of the Court of First Instance which directed the payment of 81,000 pesos. If the Court of First Instance had no jurisdiction to make any order for the payment of money in a divorce proceeding, that part of the judgment would have to be eliminated. In taking jurisdiction of the case the Supreme Court of the United States necessarily held that a liquidation of the affairs of the conjugal partnership could be had in a divorce proceeding. The fifth assignment of error, therefore, can not be urged by the defendant.The sixth assignment of error was as follows:Ha incurrido en error en cuanto fija la cuantia de la mitad de dichos supuestos bienes gananciales en 81,042 pesos y 75 centimos, sin haber tenido a la vista los antecedentes y datos necesarios y sin haber tenido en cuenta ademas las perdidas sufridas y las deudas contraidas por la razon social Hijos de I. de la Rama.This assignment of error not having been considered either by the Supreme Court of the United States or by his court, be sustained. The Civil Code states in detail the manner in which the affairs of a conjugal partnership shall be settled after the same has been dissolved. Article 1418 provides, except in certain cases not here important, that an inventory shall at once be made. We have held in the case ofAlfonso vs. Natividad1(4 Off. Gaz., 461), that when the partnership is dissolved by the death of the husband this inventory be made in the proceedings for the settlement of his estate. And in the case ofPrado vs. Lagera2(5 Off. Gaz., 146), that the inventory thus formed must include thebienes parafernalesof the wife. It is very evident from the provisions of the Civil Code t