FIRST DIVISION

G.R. No. 184528 April 25, 2012

NILO OROPESA, Petitioner,

vs.

CIRILO OROPESA, Respondent.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure of the Decision1 dated February 29, 2008, as well as the Resolution2 dated September 16, 2008, both rendered by the Court of Appeals in CA-G.R. CV No. 88449, entitled "NILO OROPESA vs. CIRILO OROPESA." The Court of Appeals’ issuances affirmed the Order3 dated September 27, 2006 and the Order4 dated November 14, 2006 issued by the Regional Trial Court (RTC) of Parañaque City, Branch 260 in SP. Proc. Case No. 04-0016, which dismissed petitioner Nilo Oropesa’s petition for guardianship over the properties of his father, respondent Cirilo Oropesa (a widower), and denied petitioner’s motion for reconsideration thereof, respectively.

The facts of this case, as summed in the assailed Decision, follow:

On January 23, 2004, the (petitioner) filed with the Regional Trial Court of Parañaque City, a petition for him and a certain Ms. Louie Ginez to be appointed as guardians over the property of his father, the (respondent) Cirilo Oropesa. The case was docketed as SP Proc. No. 04-0016 and raffled off to Branch 260.

In the said petition, it is alleged among others that the (respondent) has been afflicted with several maladies and has been sickly for over ten (10) years already having suffered a stroke on April 1, 2003 and June 1, 2003, that his judgment and memory [were] impaired and such has been evident after his hospitalization; that even before his stroke, the (respondent) was observed to have had lapses in memory and judgment, showing signs of failure to manage his property properly; that due to his age and medical condition, he cannot, without outside aid, manage his property wisely, and has become an

easy prey for deceit and exploitation by people around him, particularly Ms. Ma. Luisa Agamata, his girlfriend.

In an Order dated January 29, 2004, the presiding judge of the court a quo set the case for hearing, and directed the court social worker to conduct a social case study and submit a report thereon.

Pursuant to the abovementioned order, the Court Social Worker conducted her social case study, interviewing the (petitioner) and his witnesses. The Court Social Worker subsequently submitted her report but without any finding on the (respondent) who refused to see and talk to the social worker.

On July 6, 2004, the (respondent) filed his Opposition to the petition for guardianship. On August 3, 2004, the (respondent) filed his Supplemental Opposition.

Thereafter, the (petitioner) presented his evidence which consists of his testimony, and that of his sister Gianina Oropesa Bennett, and the (respondent’s) former nurse, Ms. Alma Altaya.

After presenting evidence, the (petitioner) filed a manifestation dated May 29, 2006 resting his case. The (petitioner) failed to file his written formal offer of evidence.

Thus, the (respondent) filed his "Omnibus Motion (1) to Declare the petitioner to have waived the presentation of his Offer of Exhibits and the presentation of his Evidence Closed since they were not formally offered; (2) To Expunge the Documents of the Petitioner from the Record; and (3) To Grant leave to the Oppositor to File Demurrer to Evidence.

In an Order dated July 14, 2006, the court a quo granted the (respondent’s) Omnibus Motion. Thereafter, the (respondent) then filed his Demurrer to Evidence dated July 23, 2006.5 (Citations omitted.)

The trial court granted respondent’s demurrer to evidence in an Order dated September 27, 2006. The dispositive portion of which reads:

WHEREFORE, considering that the petitioner has failed to provide sufficient evidence to establish that Gen. Cirilo O. Oropesa is incompetent to run his personal affairs and to administer his properties, Oppositor’s Demurrer to Evidence is GRANTED, and the case is DISMISSED.6

Petitioner moved for reconsideration but this was denied by the trial court in an Order dated November 14, 2006, the dispositive portion of which states:

WHEREFORE, considering that the Court record shows that petitioner-movant has failed to provide sufficient documentary and testimonial evidence to establish that Gen. Cirilo Oropesa is incompetent to run his personal affairs and to administer his properties, the Court hereby affirms its earlier Order dated 27 September 2006.

Accordingly, petitioner’s Motion for Reconsideration is DENIED for lack of merit.7

Unperturbed, petitioner elevated the case to the Court of Appeals but his appeal was dismissed through the now assailed Decision dated February 29, 2008, the dispositive portion of which reads:

WHEREFORE, premises considered the instant appeal is DISMISSED. The assailed orders of the court a quo dated September 27, 2006 and November 14, 2006 are AFFIRMED.8

A motion for reconsideration was filed by petitioner but this was denied by the Court of Appeals in the similarly assailed Resolution dated September 16, 2008. Hence, the instant petition was filed.

Petitioner submits the following question for consideration by this Court:

WHETHER RESPONDENT IS CONSIDERED AN "INCOMPETENT" PERSON AS DEFINED UNDER SECTION 2, RULE 92 OF THE RULES OF COURT WHO SHOULD BE PLACED UNDER GUARDIANSHIP9

After considering the evidence and pleadings on record, we find the petition to be without merit.

Petitioner comes before the Court arguing that the assailed rulings of the Court of Appeals should be set aside as it allegedly committed grave and reversible error when it affirmed the erroneous decision of the trial court which purportedly disregarded the overwhelming evidence presented by him showing respondent’s incompetence.

In Francisco v. Court of Appeals,10 we laid out the nature and purpose of guardianship in the following wise:

A guardianship is a trust relation of the most sacred character, in which one person, called a "guardian" acts for another called the "ward" whom the law regards as incapable of managing his own affairs. A guardianship is designed to further the ward’s well-being, not that of the guardian. It is intended to preserve the ward’s property, as well as to render any assistance that the ward may personally require. It has been stated that while custody involves immediate care and control, guardianship indicates not only those responsibilities, but those of one in loco parentis as well.11

In a guardianship proceeding, a court may appoint a qualified guardian if the prospective ward is proven to be a minor or an incompetent.

A reading of Section 2, Rule 92 of the Rules of Court tells us that persons who, though of sound mind but by reason of age, disease, weak mind or other similar causes, are incapable of taking care of themselves and their property without outside aid are considered as incompetents who may properly be placed under guardianship. The full text of the said provision reads:

Sec. 2. Meaning of the word "incompetent." – Under this rule, the word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.

We have held in the past that a "finding that a person is incompetent should be anchored on clear, positive and definite evidence."12 We consider that evidentiary standard unchanged and, thus, must be applied in the case at bar.

In support of his contention that respondent is incompetent and, therefore, should be placed in guardianship, petitioner raises in his Memorandum13 the following factual matters:

a. Respondent has been afflicted with several maladies and has been sickly for over ten (10) years already;

b. During the time that respondent was hospitalized at the St. Luke’s Medical Center after his stroke, he purportedly requested one of his former colleagues who was visiting him to file a loan application with the Armed Forces of the Philippines Savings and Loan Association, Inc. (AFPSLAI) for payment of his hospital bills, when, as far as his children knew, he had substantial amounts of money in various banks sufficient to cover his medical expenses;

c. Respondent’s residence allegedly has been left dilapidated due to lack of care and management;

d. The realty taxes for respondent’s various properties remain unpaid and therefore petitioner and his sister were supposedly compelled to pay the necessary taxes;

e. Respondent allegedly instructed petitioner to sell his Nissan Exalta car for the reason that the former would be purchasing another vehicle, but when the car had been sold, respondent did not procure another vehicle and refused to account for the money earned from the sale of the old car;

f. Respondent withdrew at least $75,000.00 from a joint account under his name and his daughter’s without the latter’s knowledge or consent;

g. There was purportedly one occasion where respondent took a kitchen knife to stab himself upon the "orders" of his girlfriend during one of their fights;

h. Respondent continuously allows his girlfriend to ransack his house of groceries and furniture, despite protests from his children.14

Respondent denied the allegations made by petitioner and cited petitioner’s lack of material evidence to support his claims. According to respondent, petitioner did not present any relevant documentary or testimonial evidence that would attest to the veracity of his assertion that respondent is incompetent largely due to his alleged deteriorating medical and mental condition. In fact, respondent points out that the only medical document presented by petitioner proves that he is indeed competent to run his personal affairs and administer his properties. Portions of the said document, entitled "Report of Neuropsychological Screening,"15 were quoted by respondent in his Memorandum16 to illustrate that said report in fact favored respondent’s claim of competence, to wit:

General Oropesa spoke fluently in English and Filipino, he enjoyed and participated meaningfully in conversations and could be quite elaborate in his responses on many of the test items. He spoke in a clear voice and his articulation was generally comprehensible. x x x.

x x x x

General Oropesa performed in the average range on most of the domains that were tested. He was able to correctly perform mental calculations and keep track of number sequences on a task of attention. He did BEST in visuo-constructional tasks where he had to copy geometrical designs using tiles. Likewise, he was able to render and read the correct time on the Clock Drawing Test. x x x.

x x x x

x x x Reasoning abilities were generally intact as he was able to suggest effective solutions to problem situations. x x x.17

With the failure of petitioner to formally offer his documentary evidence, his proof of his father’s incompetence consisted purely of testimonies given by himself and his sister (who were claiming interest in their father’s real and personal properties) and their father’s former caregiver (who admitted to be acting under their direction). These testimonies, which did not include any expert medical testimony, were insufficient to convince the trial court of petitioner’s cause of action and instead lead it to grant the demurrer to evidence that was filed by respondent.

Even if we were to overlook petitioner’s procedural lapse in failing to make a formal offer of evidence, his documentary proof were comprised mainly of certificates of title over real properties registered in his, his father’s and his sister’s names as co-owners, tax declarations, and receipts showing payment of real estate taxes on their co-owned properties, which do not in any way relate to his father’s alleged incapacity to make decisions for himself. The only medical document on record is the aforementioned "Report of Neuropsychological Screening" which was attached to the petition for guardianship but was never identified by any witness nor offered as evidence. In any event, the said report, as mentioned earlier, was ambivalent at best, for although the report had negative findings regarding memory lapses on the part of respondent, it also contained findings that supported the view that respondent on the average was indeed competent.

In an analogous guardianship case wherein the soundness of mind of the proposed ward was at issue, we had the occasion to rule that "where the sanity of a person is at issue, expert opinion is not

necessary [and that] the observations of the trial judge coupled with evidence establishing the person’s state of mental sanity will suffice."18

Thus, it is significant that in its Order dated November 14, 2006 which denied petitioner’s motion for reconsideration on the trial court’s unfavorable September 27, 2006 ruling, the trial court highlighted the fatal role that petitioner’s own documentary evidence played in disproving its case and, likewise, the trial court made known its own observation of respondent’s physical and mental state, to wit:

The Court noted the absence of any testimony of a medical expert which states that Gen. Cirilo O. Oropesa does not have the mental, emotional, and physical capacity to manage his own affairs. On the contrary, Oppositor’s evidence includes a Neuropsychological Screening Report which states that Gen. Oropesa, (1) performs on the average range in most of the domains that were tested; (2) is capable of mental calculations; and (3) can provide solutions to problem situations. The Report concludes that Gen. Oropesa possesses intact cognitive functioning, except for mildly impaired abilities in memory, reasoning and orientation. It is the observation of the Court that oppositor is still sharp, alert and able.19 (Citation omitted; emphasis supplied.)

It is axiomatic that, as a general rule, "only questions of law may be raised in a petition for review on certiorari because the Court is not a trier of facts."20 We only take cognizance of questions of fact in certain exceptional circumstances;21 however, we find them to be absent in the instant case. It is also long settled that "factual findings of the trial court, when affirmed by the Court of Appeals, will not be disturbed by this Court. As a rule, such findings by the lower courts are entitled to great weight and respect, and are deemed final and conclusive on this Court when supported by the evidence on record."22 We therefore adopt the factual findings of the lower court and the Court of Appeals and rule that the grant of respondent’s demurrer to evidence was proper under the circumstances obtaining in the case at bar.

Section 1, Rule 33 of the Rules of Court provides:

Section 1. Demurrer to evidence. – After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence.

A demurrer to evidence is defined as "an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue."23 We have also held that a demurrer to evidence "authorizes a

judgment on the merits of the case without the defendant having to submit evidence on his part, as he would ordinarily have to do, if plaintiff’s evidence shows that he is not entitled to the relief sought."241âwphi1

There was no error on the part of the trial court when it dismissed the petition for guardianship without first requiring respondent to present his evidence precisely because the effect of granting a demurrer to evidence other than dismissing a cause of action is, evidently, to preclude a defendant from presenting his evidence since, upon the facts and the law, the plaintiff has shown no right to relief.

WHEREFORE, premises considered, the petition is hereby DENIED. The assailed Decision dated February 29, 2008 as well as the Resolution dated September 16, 2008 of the Court of Appeals in CA-G.R. CV No. 88449 are AFFIRMED.

SO ORDERED.

FIRST DIVISION

NELSON CABALES and G.R. No. 162421

RITO CABALES,

Petitioners,

Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,

- versus - CORONA,

AZCUNA, and

GARCIA, JJ.

COURT OF APPEALS, Promulgated:

JESUS FELIANO and

ANUNCIACION FELIANO,

Respondents. August 31, 2007

x-----------------------------------------------------------------------------------------x

D E C I S I O N

PUNO, C.J.:

This is a petition for review on certiorari seeking the reversal of the decision[1] of the Court of Appeals dated October 27, 2003, in CA-G.R. CV No. 68319 entitled “Nelson Cabales and Rito Cabales v. Jesus Feliano and Anunciacion Feliano,” which affirmed with modification the decision[2] of the Regional Trial Court of Maasin, Southern Leyte, Branch 25, dated August 11, 2000, in Civil Case No. R-2878. The resolution of the Court of Appeals dated February 23, 2004, which denied petitioners’ motion for

reconsideration, is likewise herein assailed.

The facts as found by the trial court and the appellate court are well established.

Rufino Cabales died on July 4, 1966 and left a 5,714-square meter parcel of land located in Brgy. Rizal, Sogod, Southern Leyte, covered by Tax Declaration No. 17270 to his surviving wife Saturnina and children Bonifacio, Albino, Francisco, Leonora, Alberto and petitioner Rito.

On July 26, 1971, brothers and co-owners Bonifacio, Albino and Alberto sold the subject property to Dr. Cayetano Corrompido for P2,000.00, with right to repurchase within eight (8) years. The three (3) siblings divided the proceeds of the sale among themselves, each getting a share of P666.66.

The following month or on August 18, 1971, Alberto secured a note (“vale”) from Dr. Corrompido in the amount of P300.00.

In 1972, Alberto died leaving his wife and son, petitioner Nelson.

On December 18, 1975, within the eight-year redemption period, Bonifacio and Albino tendered their payment of P666.66 each to Dr. Corrompido. But Dr. Corrompido only released the document of sale with pacto de retro after Saturnina paid for the share of her deceased son, Alberto, including his “vale” of P300.00.

On even date, Saturnina and her four (4) children Bonifacio, Albino, Francisco and Leonora sold the subject parcel of land to respondents-spouses Jesus and Anunciacion Feliano for P8,000.00. The Deed of Sale provided in its last paragraph, thus:

It is hereby declared and understood that the amount of TWO THOUSAND TWO HUNDRED EIGHTY SIX PESOS (P2,286.00) corresponding and belonging to the Heirs of Alberto Cabales and to Rito Cabales who are still minors upon the execution of this instrument are held

in trust by the VENDEE and to be paid and delivered only to them upon reaching the age of 21.

On December 17, 1985, the Register of Deeds of Southern Leyte issued Original Certificate of Title No. 17035 over the purchased land in the names of respondents-spouses.

On December 30, 1985, Saturnina and her four (4) children executed an affidavit to the effect that petitioner Nelson would only receive the amount of P176.34 from respondents-spouses when he reaches the age of 21 considering that Saturnina paid Dr. Corrompido P966.66 for the obligation of petitioner Nelson’s late father Alberto, i.e., P666.66 for his share in the redemption of the sale with pacto de retro as well as his “vale” of P300.00.

On July 24, 1986, 24-year old petitioner Rito Cabales acknowledged receipt of the sum of P1,143.00 from respondent Jesus Feliano, representing the former’s share in the proceeds of the sale of subject property.

In 1988, Saturnina died. Petitioner Nelson, then residing in Manila, went back to his father’s hometown in Southern Leyte. That same year, he learned from his uncle, petitioner Rito, of the sale of subject property. In 1993, he signified his intention to redeem the subject land during a barangay conciliation process that he initiated.

On January 12, 1995, contending that they could not have sold their respective shares in subject property when they were minors, petitioners filed before the Regional Trial Court of Maasin, Southern Leyte, a complaint for redemption of the subject land plus damages.

In their answer, respondents-spouses maintained that petitioners were estopped from claiming any right over subject property considering that (1) petitioner Rito had already received the amount corresponding to his share of the proceeds of the sale of subject property, and (2) that petitioner Nelson failed to consign to the court the total amount of the redemption price necessary for legal redemption. They prayed for the dismissal of the case on the grounds of laches and prescription.

No amicable settlement was reached at pre-trial. Trial ensued and on August 11, 2000, the trial court ruled against petitioners. It held that (1) Alberto or, by his death, any of his heirs including petitioner Nelson lost their right to subject land when not one of them repurchased it from Dr. Corrompido; (2) Saturnina was effectively subrogated to the rights and interests of Alberto when she paid for Alberto’s share as well as his obligation to Dr. Corrompido; and (3) petitioner Rito had no more right to redeem his share to subject property as the sale by Saturnina, his legal guardian pursuant to Section 7, Rule 93 of the Rules of Court, was perfectly valid; and it was shown that he received his share of the proceeds of the sale on July 24, 1986, when he was 24 years old.

On appeal, the Court of Appeals modified the decision of the trial court. It held that the sale by Saturnina of petitioner Rito’s undivided share to the property was unenforceable for lack of authority or legal representation but that the contract was effectively ratified by petitioner Rito’s receipt of the proceeds on July 24, 1986. The appellate court also ruled that petitioner Nelson is co-owner to the extent of one-seventh (1/7) of subject property as Saturnina was not subrogated to Alberto’s rights when she repurchased his share to the property. It further directed petitioner Nelson to pay the estate of the late Saturnina Cabales the amount of P966.66, representing the amount which the latter paid for the obligation of petitioner Nelson’s late father Alberto. Finally, however, it denied petitioner Nelson’s claim for redemption for his failure to tender or consign in court the redemption money within the period prescribed by law.

In this petition for review on certiorari, petitioners contend that the Court of Appeals erred in (1) recognizing petitioner Nelson Cabales as co-owner of subject land but denied him the right of legal redemption, and (2) not recognizing petitioner Rito Cabales as co-owner of subject land with similar right of legal redemption.

First, we shall delineate the rights of petitioners to subject land.

When Rufino Cabales died intestate, his wife Saturnina and his six (6) children, Bonifacio, Albino, Francisco, Leonora, Alberto and petitioner Rito, survived and succeeded him. Article 996 of the New Civil Code provides that “[i]f a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.” Verily, the seven

(7) heirs inherited equally on subject property. Petitioner Rito and Alberto, petitioner Nelson’s father, inherited in their own rights and with equal shares as the others.

But before partition of subject land was effected, Alberto died. By operation of law, his rights and obligations to one-seventh of subject land were transferred to his legal heirs – his wife and his son petitioner Nelson.

We shall now discuss the effects of the two (2) sales of subject land to the rights of the parties.

The first sale with pacto de retro to Dr. Corrompido by the brothers and co-owners Bonifacio, Albino and Alberto was valid but only as to their pro-indiviso shares to the land. When Alberto died prior to repurchasing his share, his rights and obligations were transferred to and assumed by his heirs, namely his wife and his son, petitioner Nelson. But the records show that it was Saturnina, Alberto’s mother, and not his heirs, who repurchased for him. As correctly ruled by the Court of Appeals, Saturnina was not subrogated to Alberto’s or his heirs’ rights to the property when she repurchased the share.

In Paulmitan v. Court of Appeals,[3] we held that a co-owner who redeemed the property in its entirety did not make her the owner of all of it. The property remained in a condition of co-ownership as the redemption did not provide for a mode of terminating a co-ownership.[4] But the one who redeemed had the right to be reimbursed for the redemption price and until reimbursed, holds a lien upon the subject property for the amount due.[5] Necessarily, when Saturnina redeemed for Alberto’s heirs who had then acquired his pro-indiviso share in subject property, it did not vest in her ownership over the pro-indiviso share she redeemed. But she had the right to be reimbursed for the redemption price and held a lien upon the property for the amount due until reimbursement. The result is that the heirs of Alberto, i.e., his wife and his son petitioner Nelson, retained ownership over their pro-indiviso share.

Upon redemption from Dr. Corrompido, the subject property was resold to respondents-spouses by the co-owners. Petitioners Rito and Nelson were then minors and as indicated in the Deed of Sale, their shares in the proceeds were held in trust by respondents-spouses to be paid and delivered to them upon reaching the age of majority.

As to petitioner Rito, the contract of sale was unenforceable as correctly held by the Court of Appeals. Articles 320 and 326 of the New Civil Code[6] state that:

Art. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance.

Art. 326. When the property of the child is worth more than two thousand pesos, the father or mother shall be considered a guardian of the child’s property, subject to the duties and obligations of guardians under the Rules of Court.

In other words, the father, or, in his absence, the mother, is considered legal administrator of the property pertaining to the child under his or her parental authority without need of giving a bond in case the amount of the property of the child does not exceed two thousand pesos.[7] Corollary to this, Rule 93, Section 7 of the Revised Rules of Court of 1964, applicable to this case, automatically designates the parent as legal guardian of the child without need of any judicial appointment in case the latter’s property does not exceed two thousand pesos,[8] thus:

Sec. 7. Parents as guardians. – When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian x x x x[9]

Saturnina was clearly petitioner Rito’s legal guardian without necessity of court appointment considering that the amount of his property or one-seventh of subject property was P1,143.00, which is less than two thousand pesos. However, Rule 96, Sec. 1[10] provides that:

Section 1. To what guardianship shall extend. – A guardian appointed shall have the care and custody of the person of his ward, and the management of his estate, or the management of the estate only, as the case may be. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship.

Indeed, the legal guardian only has the plenary power of administration of the minor’s property. It does not include the power of alienation which needs judicial authority.[11] Thus, when Saturnina, as legal guardian of petitioner Rito, sold the latter’s pro-indiviso share in subject land, she did not have the legal authority to do so.

Article 1403 of the New Civil Code provides, thus:

Art. 1403. The following contracts are unenforceable, unless they are ratified:

(1) Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers;

x x x x

Accordingly, the contract of sale as to the pro-indiviso share of petitioner Rito was unenforceable. However, when he acknowledged receipt of the proceeds of the sale on July 24, 1986, petitioner Rito effectively ratified it. This act of ratification rendered the sale valid and binding as to him.

With respect to petitioner Nelson, on the other hand, the contract of sale was void. He was a minor at the time of the sale. Saturnina or any and all the other co-owners were not his legal guardians with judicial authority to alienate or encumber his property. It was his mother who was his legal guardian and, if duly authorized by the courts, could validly sell his undivided share to the property. She did not. Necessarily, when Saturnina and the others sold the subject property in its entirety to respondents-spouses, they only sold and transferred title to their pro-indiviso shares and not that part which pertained to petitioner Nelson and his mother. Consequently, petitioner Nelson and his mother retained ownership over their undivided share of subject property.[12]

But may petitioners redeem the subject land from respondents-spouses? Articles 1088 and 1623 of the New Civil Code are pertinent:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor.

Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of adjoining owners.

Clearly, legal redemption may only be exercised by the co-owner or co-owners who did not part with his or their pro-indiviso share in the property held in common. As demonstrated, the sale as to the undivided share of petitioner Rito became valid and binding upon his ratification on July 24, 1986. As a result, he lost his right to redeem subject property.

However, as likewise established, the sale as to the undivided share of petitioner Nelson and his mother was not valid such that they were not divested of their ownership thereto. Necessarily, they may redeem the subject property from respondents-spouses. But they must do so within thirty days from notice in writing of the sale by their co-owners vendors. In reckoning this period, we held in Alonzo v. Intermediate Appellate Court,[13] thus:

x x x we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. x x x x

x x x x While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to “the letter that killeth” but to “the spirit that vivifieth,” to give effect to the lawmaker’s will.

In requiring written notice, Article 1088 (and Article 1623 for that matter)[14] seeks to ensure that the redemptioner is properly notified of the sale and to indicate the date of such notice as the starting time of the 30-day period of redemption. Considering the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise date it is supposed to begin, to obviate the problem of alleged delays, sometimes consisting of only a day or two.

In the instant case, the right of redemption was invoked not days but years after the sale was made in 1978. We are not unmindful of the fact that petitioner Nelson was a minor when the sale was perfected. Nevertheless, the records show that in 1988, petitioner Nelson, then of majority age, was informed of the sale of subject property. Moreover, it was noted by the appellate court that petitioner Nelson was likewise informed thereof in 1993 and he signified his intention to redeem subject property during a barangay conciliation process. But he only filed the complaint for legal redemption and damages on January 12, 1995, certainly more than thirty days from learning about the sale.

In the face of the established facts, petitioner Nelson cannot feign ignorance of the sale of subject property in 1978. To require strict proof of written notice of the sale would be to countenance an obvious false claim of lack of knowledge thereof, thus commending the letter of the law over its purpose, i.e., the notification of redemptioners.

The Court is satisfied that there was sufficient notice of the sale to petitioner Nelson. The thirty-day redemption period commenced in 1993, after petitioner Nelson sought the barangay conciliation process to redeem his property. By January 12, 1995, when petitioner Nelson filed a complaint for legal redemption and damages, it is clear that the thirty-day period had already expired.

As in Alonzo, the Court, after due consideration of the facts of the instant case, hereby interprets the law in a way that will render justice.[15]

Petitioner Nelson, as correctly held by the Court of Appeals, can no longer redeem subject property. But he and his mother remain co-owners thereof with respondents-spouses. Accordingly, title to subject property must include them.

IN VIEW WHEREOF, the petition is DENIED. The assailed decision and resolution of the Court of Appeals of October 27, 2003 and February 23, 2004 are AFFIRMED WITH MODIFICATION. The Register of Deeds of Southern Leyte is ORDERED to cancel Original Certificate of Title No. 17035 and to issue in lieu thereof a new certificate of title in the name of respondents-spouses Jesus and Anunciacion Feliano for the 6/7 portion, and petitioner Nelson Cabales and his mother for the remaining 1/7 portion, pro indiviso.

SO ORDERED.

THIRD DIVISION

G.R. No. 132223 June 19, 2001

BONIFACIA P. VANCIL, petitioner,

vs.

HELEN G. BELMES, respondent.

SANDOVAL-GUTIERREZ, J.:

Petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. CV No. 45650, "In the Matter of Guardianship of Minors Valerie Vancil and Vincent Vancil – Bonifacia P. Vancil, Petitioner-Appellee, vs. Helen G. Belmes, Oppositor-Appellant," promulgated on July 29, 1997, and its Resolution dated December 18, 1997 denying the motion for reconsideration of the said Decision.

The facts of the case as summarized by the Court of Appeals in its Decision are:

"Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy serviceman of the United States of America who died in the said country on December 22, 1986. During his lifetime, Reeder had two (2) children named Valerie and Vincent by his common-law wife, Helen G. Belmes.

"Sometime in May of 1987, Bonifacia Vancil commenced before the Regional Trial Court of Cebu City a guardianship proceedings over the persons and properties of minors Valerie and Vincent docketed as Special Proceedings No. 1618-CEB. At the time, Valerie was only 6 years old while Vincent was a 2-year old child. It is claimed in the petition that the minors are residents of Cebu City, Philippines and have an estate consisting of proceeds from their father’s death pension benefits with a probable value of P100,000.00.

"Finding sufficiency in form and in substance, the case was set for hearing after a 3-consecutive-weekly publications with the Sunstar Daily.

"On July 15, 1987, petitioner, Bonifacia Vancil was appointed legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr.

"On August 13, 1987, the natural mother of the minors, Helen Belmes, submitted an opposition to the subject guardianship proceedings asseverating that she had already filed a similar petition for guardianship under Special Proceedings No. 2819 before the Regional Trial Court of Pagadian City.

"Thereafter, on June 27, 1988, Helen Belmes followed her opposition with a motion for the Removal of Guardian and Appointment of a New One, asserting that she is the natural mother in actual custody of and exercising parental authority over the subject minors at Maralag, Dumingag, Zamboanga del Sur where they are permanently residing; that the petition was filed under an improper venue; and that at the time the petition was filed Bonifacia Vancil was a resident of 140 Hurliman Court, Canon City, Colorado, U.S.A. being a naturalized American citizen.

"On October 12, 1988, after due proceedings, the trial court rejected and denied Belmes’ motion to remove and/or to disqualify Bonifacia as guardian of Valerie and Vincent Jr. and instead ordered petitioner Bonifacia Vancil to enter the office and perform her duties as such guardian upon the posting of a bond of P50,000.00. The subsequent attempt for a reconsideration was likewise dismissed in an Order dated November 24, 1988."1

On appeal, the Court of Appeals rendered its assailed Decision reversing the RTC order of October 12, 1988 and dismissing Special Proceedings No. 1618-CEB.

The Court of Appeals held:

"Stress should likewise be made that our Civil Code considers parents, the father, or in the absence, the mother, as natural guardian of her minor children. The law on parental authority under the Civil Code or P.D. 603 and now the New Family Code, (Article 225 of the Family Code) ascribe to the same legal pronouncements. Section 7 of Rule 93 of the Revised Rules of Court confirms the designation of the parents as ipso facto guardian of their minor children without need of a court appointment and only for good reason may another person be named. Ironically, for the petitioner, there is nothing on record of any reason at all why Helen Belmes, the biological mother, should be deprived of her legal rights as natural guardian of her minor children. To give away such privilege from Helen would be an abdication and grave violation of the very basic fundamental tenets in civil law and the constitution on family solidarity."2

On March 10, 1998, Bonifacia Vancil filed with this Court the present petition, raising the following "legal points":

"1. The Court of Appeals gravely erred in ruling that the preferential right of a parent to be appointed guardian over the persons and estate of the minors is absolute, contrary to existing jurisprudence.

"2. The Court of Appeals gravely erred in ruling that Oppositor Helen G. Belmes, the biological mother, should be appointed the guardian of the minors despite the undisputed proof that under her custody, her daughter minor Valerie Vancil was raped seven times by Oppositor’s live-in partner.

"3. The respondent (sic) Court of Appeals gravely erred when it disqualified petitioner Bonifacia P. Vancil to be appointed as judicial guardian over the persons and estate of subject minors despite the fact that she has all the qualifications and none of the disqualifications as judicial guardian, merely on the basis of her U.S. citizenship which is clearly not a statutory requirement to become guardian."

At the outset, let it be stressed that in her "Manifestation/Motion," dated September 15, 1998, respondent Helen Belmes stated that her daughter Valerie turned eighteen on September 2, 1998 as shown by her Birth Certificate.3 Respondent thus prayed that this case be dismissed with respect to Valerie, she being no longer a proper subject of guardianship proceedings. The said "Manifestation/Motion" was noted by this Court in its Resolution dated November 11, 1998.

Considering that Valerie is already of major age, this petition has become moot with respect to her. Thus, only the first and third "legal points" raised by petitioner should be resolved.

The basic issue for our resolution is who between the mother and grandmother of minor Vincent should be his guardian.

We agree with the ruling of the Court of Appeals that respondent, being the natural mother of the minor, has the preferential right over that of petitioner to be his guardian. This ruling finds support in Article 211 of the Family Code which provides:

"Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary. xxx."

Indeed, being the natural mother of minor Vincent, respondent has the corresponding natural and legal right to his custody. In Sagala-Eslao vs. Court of Appeals,4 this Court held:

"Of considerable importance is the rule long accepted by the courts that ‘the right of parents to the custody of their minor children is one of the natural rights incident to parenthood,’ a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental relationship."

Petitioner contends that she is more qualified as guardian of Vincent.

Petitioner’s claim to be the guardian of said minor can only be realized by way of substitute parental authority pursuant to Article 214 of the Family Code, thus:

"Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. xxx."

In Santos, Sr. vs. Court of Appeals,5 this Court ruled:

"The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the parent present shall continue exercising parental authority. Only in case of the parents’ death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent."

Petitioner, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or unsuitability of respondent. Considering that respondent is very much alive and has exercised continuously parental authority over Vincent, petitioner has to prove, in asserting her right to be the minor’s guardian, respondent’s unsuitability. Petitioner, however, has not proffered convincing evidence showing that respondent is not suited to be the guardian of Vincent. Petitioner merely insists that respondent is morally unfit as guardian of Valerie considering that her (respondent’s) live-in partner raped Valerie several times. But Valerie, being now of major age, is no longer a subject of this guardianship proceeding.

Even assuming that respondent is unfit as guardian of minor Vincent, still petitioner cannot qualify as a substitute guardian. It bears stressing that she is an American citizen and a resident of Colorado. Obviously, she will not be able to perform the responsibilities and obligations required of a guardian. In fact, in her petition, she admitted the difficulty of discharging the duties of a guardian by an expatriate, like her. To be sure, she will merely delegate those duties to someone else who may not also qualify as a guardian.

Moreover, we observe that respondent’s allegation that petitioner has not set foot in the Philippines since 1987 has not been controverted by her. Besides, petitioner’s old age and her conviction of libel by the Regional Trial Court, Branch 6, Cebu City in Criminal Case No. CBU-168846 filed by one Danilo R. Deen, will give her a second thought of staying here. Indeed, her coming back to this country just to fulfill the duties of a guardian to Vincent for only two years is not certain.

Significantly, this Court has held that courts should not appoint persons as guardians who are not within the jurisdiction of our courts for they will find it difficult to protect the wards. In Guerrero vs. Teran,7 this Court held:

"Doña Maria Muñoz y Gomez was, as above indicated, removed upon the theory that her appointment was void because she did not reside in the Philippine Islands. There is nothing in the law which requires the courts to appoint residents only as administrators or guardians. However, notwithstanding the fact that there are no statutory requirements upon this question, the courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should

not consent to the appointment of persons as administrators and guardians who are not personally subject to the jurisdiction of our courts here."

WHEREFORE, the appealed Decision is hereby AFFIRMED, with modification in the sense that Valerie, who has attained the age of majority, will no longer be under the guardianship of respondent Helen Belmes.

Costs against petitioner.

SO ORDERED.

Melo, (Chairman), Panganiban, and Gonzaga-Reyes, JJ., concur.

Vitug, J., see concurring opinion.

THIRD DIVISION

G.R. No. 110427 February 24, 1997

The Incompetent, CARMEN CAÑIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner,

vs.

COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents.

NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, a spinster, a retired pharmacist, and former professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by judgment 1 of the Regional Trial Court of Quezon City, Branch 107, 2 in a guardianship proceeding instituted by her niece, Amparo A. Evangelista. 3 She was so adjudged because of her advanced age and physical infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate.

Cañiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises. 4 The complaint was later amended to identify the incompetent Cañiza as plaintiff, suing through her legal guardian, Amparo Evangelista.

The amended Complaint 5 pertinently alleged that plaintiff Cañiza was the absolute owner of the property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Cañiza already had urgent need of the house on account of her advanced age and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical treatment;" that through her guardian, Cañiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in question, they . . (were) enriching themselves at the expense of the incompetent, because, while they . . (were) saving money by not paying any rent for the house, the incompetent . . (was) losing much money as her house could not be rented by others." Also alleged was that the complaint was "filed within one (1) year from the date of of first letter of demand dated February 3, 1990."

In their Answer with Counterclaim, the defendants declared that they had been living in Cañiza's house since the 1960's; that in consideration of their faithful service they had been considered by Cañiza as her own family, and the latter had in fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question.

Judgment was rendered by the MetroTC on April 13, 1992 in Cañiza's favor, 6 the Estradas being ordered to vacate the premises and pay Cañiza P5,000.00 by way of attorney's fees.

But on appeal, 8 the decision was reversed by the Quezon City Regional Trial Court, Branch 96. 9 By judgment rendered on October 21, 1992, 10 the RTC held that the "action by which the issue of defendants' possession should be resolved is accion publiciana, the obtaining factual and legal situation . . demanding adjudication by such plenary action for recovery of possession cognizable in the first instance by the Regional Trial Court."

Cañiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision 11 promulgated on June 2, 1993, the Appellate Court 12 affirmed the RTC's judgment in toto. It ruled that (a) the proper remedy for Cañiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family of Carmen Cañiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while "said will, unless and until it has passed probate by the proper court, could not be the basis of defendants' claim to the property, . . it is indicative of intent and desire on the part of Carmen Cañiza that defendants are to remain and are to continue in their occupancy and possession, so much so that Cañiza's supervening incompetency can not be said to have vested in her guardian the right or authority to drive the defendants out." 13

Through her guardian, Cañiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this case." 14

In the responsive pleading filed by them on this Court's requirement, 15 the Estradas insist that the case against them was really not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by any "contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere demand (and hence never became unlawful) within the context of the law." Neither could the suit against them be deemed one of forcible entry, they add, because they had been occupying the property with the prior consent of the "real owner," Carmen Cañiza, which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Cañiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Cañiza's legal guardian to oust them from the disputed premises.

Carmen Cañiza died on March 19, 1994, 16 and her heirs — the aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew, respectively — were by this Court's leave, substituted for her. 17

Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for recovery of possession of the property in dispute; (b) assuming desahucio to be proper, whether or not Evangelista, as Cañiza's legal guardian had authority to bring said action; and (c) assuming an affirmative answer to both questions, whether or not Evangelista may continue to represent Cañiza after the latter's death.

I

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and the character of the relief sought. 18 An inquiry into the averments of the amended complaint in the Court of origin is thus in order. 19

The amended Complaint alleges: 20

6. That the plaintiff Carmen Cañiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this complaint;

xxx xxx xxx

9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff Carmen Cañiza, for free, out of her kindness;

10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the two (2) letters of demand were ignored and the defendants refused to vacate the same. . .

11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was negative and no settlement was reached. A photocopy of the Certification to File Action dated July 4, 1990, issued by said Barangay Captain is attached, marked Annex "D" and made an integral part hereof;

12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate the premises, and they are up to this time residing in the said place;

13. That this complaint is filed within one (1) year from the date of first letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian — Amparo Evangelista;

14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they are enriching themselves at the expense of the incompetent plaintiff because, while they are saving money by not paying any rent for the house, the plaintiff is losing much money as her house could not be rented by others;

15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for her support, maintenance and medical treatment;

16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to spend P10,000.00 as attorney's fees.

Its prayer 21 is quoted below:

WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cañiza, represented by her legal guardian, Amparo Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against the defendants as follows:

1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the house and premises at No. 6 1 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff Carmen Cañiza; and

2. To pay attorney's fees in the amount of P10,000.00;

3. To pay the costs of the suit.

In essence, the amended complaint states:

1) that the Estradas were occupying Cañiza's house by tolerance — having been "allowed to live temporarily . . (therein) for free, out of . . (Cañiza's) kindness;"

2) that Cañiza needed the house "urgently" because her "health . . (was) failing and she . . (needed) funds . . to meet her expenses for her support, maintenance and medical treatment;"

3) that through her general guardian, Cañiza requested the Estradas several times, orally and in writing, to give back possession of the house;

4) that the Estradas refused and continue to refuse to give back the house to Cañiza, to her continuing prejudice; and

5) that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, 22 and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law. 23

The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend that since they did not acquire possession of the property in question "by virtue of any contract, express or implied" — they having been, to repeat, "allowed to live temporarily . . (therein) for free, out of . . (Cañiza's) kindness" — in no sense could there be an "expiration or termination of . . (their) right to hold possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie against them, since there is no claim that they had "deprived (Cañiza) of the possession of . . (her property) by force, intimidation, threat, strategy, or stealth.

The argument is arrant sophistry. Cañiza's act of allowing the Estradas to occupy her house, rent-free, did not create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of fairness clearly require that that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning the house to Cañiza

upon her demand. More than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. 24 The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate. 25 In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is required to leave. 26 Thus, in Asset Privatization Trust vs. Court of Appeals, 27 where a company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, . . (its) continuing possession . . became illegal and the complaint for unlawful detainer filed by the

. . (plant's owner) was its proper remedy.

It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand, 28 the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises. 29 Now, the complaint filed by Cañiza's guardian alleges that the same was "filed within one (1) year from the date of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in fact a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint was actually filed on September 17, 1990, well within one year from the second (last) written demand to vacate.

The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Cañiza had executed a will bequeathing the disputed property to the Estradas; that circumstance did not give them the right to stay in the premises after demand to vacate on the theory that they might in future become owners thereof, that right of ownership being at best inchoate, no transfer of ownership being possible unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance; that had been legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them — an event which still has to take place; in other words, prior to the probate of the will, any assertion of possession by them would be premature and inefficacious.

In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Cañiza is not ejectment but accion publiciana, a plenary action in the RTC or an action that is one for recovery of the right to possession de jure.

II

The Estradas insist that the devise of the house to them by Cañiza clearly denotes her intention that they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster would be inconsistent with the ward's will.

A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; 30 and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, id.). 31 An owner's intention to confer title in the future to persons possessing property by his tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income from the house on account of the physical infirmities afflicting her, arising from her extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Cañiza. Her Letters of Guardianship 32 dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent CARMEN CANIZA with full authority to take possession of the property of said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the management of her properties . . " 33 By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. 34 It also became her right and duty to get possession of, and exercise control over, Cañiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during her incompetency. 35 That right to manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it, 36 and bring and defend such actions as may be needful for this purpose. 37

Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:

Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. — A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such maintenance.

Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve "the issue of ownership . . only to determine the issue of possession." 38

III

As already stated, Carmen Cañiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing that Cañiza's death automatically terminated the guardianship, Amaparo Evangelista lost all authority as her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit.

While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward, 39 the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Cañiza, is one of the latter's only two (2) surviving heirs, the other being Cañiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this Court 40 of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 41

Sec. 18. Death of a party. — After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs.

To be sure, an ejectment case survives the death of a party. Cañiza's demise did not extinguish the desahucio suit instituted by her through her guardian. 42 That action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 — affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari — is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.