G.R. No. L-5033. June 28, 1954

September 2, 1947, Rosa Aldana Francisco petitioned the Court of
First Instance of Rizal summarily to settle the estate of her husband
Jose M. Francisco who had died in 1944. Alleging under oath that they
had three minor children who were his legal heirs, and that the
deceased left a parcel of land with house thereon, and no creditors,
she asked for declaration that the persons entitled to share in his
estate are the said three minor children, with herself as usufructuary.

In connection with her petition she requested for appointment as guardian ad litem of her three minor children, and her request was granted in due course.

After the requisite publication, the petition was heard, and later
approved by an order dated November 29, 1947, declaring “the petitioner
Rosa Aldaha Francisco, and her children Jose Francisco Jr., Thelma
Francisco and Aurelio Francisco as the only heirs of the deceased” and
adjudicating unto the said heirs the above-mentioned property in the
proportion of one-half undivided share to the widow, and the other half
in equal parts, to the said children.

This order was registered in the office of the Register of Deeds,
who issued thereafter (January 15, 1948) a new certificate of title in
the names and in the proportion already stated.

August 4, 1948, Rosa Aldana Francisco mortgaged her share of the
realty to the sisters Fausta Carreon and Catalina Carreon for the sum
of P13,000, and the deed of mortgage was duly registered August 16,
1948. Afterwards, on January 19, 1950 she conveyed by absolute deed of
sale, to the aforesaid creditors, her interest and participation in the
land. This sale was likewise inscribed in the office of the Register of
Deeds.

However, in a motion of March 14, 1950, Tiburcia Magsalin Vda. de
Francisco, mother of the deceased Jose M. Francisco, allegedly in
representation of the minor Jose Francisco y Palumpon, seventeen,
averred that this minor was a recognized natural son of the deceased,
with legal right to participate in his estate, that the previous
proceedings were void because Rosa Aldana Francisco had concealed such
fact, and because she had interests in conflict with those of her three
sons, the truth being that the land was private property of Jose M.
Francisco of which she could not have been awarded a portion in fee
simple.

Tiburcia prayed specifically for the following remedies:

(a) Her appointment as guardian ad litem of Jose Francisco y Palumpon; (b) her appointment as guardian ad litem of the three legitimate children Jose, Thelma and Aurelio, in place of Rosa Aldana Francisco; (c) declaration that Jose Francisco y Palumpon was a recognized natural child of the deceased with the right to inherit; (d)
annulment of the order of November 29, 1947, with the adjudication that
the only heirs of the deceased are the four children already named, the
widow being entitled to usufruct only; (e) annulment of the mortgage and sale executed by Rosa Aldana Francisco in favor of the Carreon sisters; and (f) appropriate instruction to the Register of Deeds.

Oppositions to the motion were presented by Rosa Aldana Francisco
and by the two sisters Fausta and Catalina Carreon. One of the
objectors pointed out that Tiburcia Magsalin could not be named
guardian of the natural and the legitimate children, because she would
then be representing interests in conflict. Wherefore the court chose
to appoint, and did appoint, the natural mother of Jose Francisco y
Palumpon (Macaria Palumpon) as his guardian ad litem, even as it named Tiburcia Magsalin Vda. de Francisco the guardian of the minors, legitimate children Jose Thelma and Aurelio.

Now, when the motion to annul or reopen was called for hearing,
Macaria Palumpon requested in open court the dismissal, without
prejudice, of Jose Francisco y Palumpon’s demand for recognition. Her
request was granted; but the court announced that the three minor
children’s petition for reopening of the order adjudicating one-half to
Rosa Aldana Francisco, with all consequent effects upon the mortgage
and sale, will be taken up later, i.e., on May 5, 1950.

Both Rosa Aldana and the Carreons moved for reconsideration,
contending that, inasmuch as Jose Francisco y Palumpon had withdrawn,
there was no authority to continue, for the matter became a closed
incident.

Thereafter, and probably to meet objections, Tiburcia Magsalin Vda. de Francisco, as guardian ad litem
of the three legitimate, submitted an “amended motion” wherein she made
practically the same allegations of her previous motion and prayed for
identical remedies—except those touching the recognition of Jose
Francisco y Palumpon.

Overruling objections, the court admitted the amended motion, heard
it granting the interested parties opportunity to present their
evidence and arguments, and rendered judgment holding the realty was
private property of the deceased Jose Francisco, who had acquired it
four years before his marriage to Rosa Aldana. Wherefore it revoked the
order of November 29, 1947; it held that the whole property passed to
the ownership of the three legitimate children of the deceased, subject
to usufructuary rights of the widow; it annulled the mortgage and the
sale executed by Rosa Aldana in favor of the Carreon sisters, and then
issued other appropriate instructions to the Register of Deeds.

Rosa Aldana acquiesced in the resolution. Not the Carreon sisters,
who appealed in due time, asserting the court erred: (1) in continuing
to hear the motion for reopening, even after the natural child had
withdrawn from the litigation and (2) in taking cognizance of the
annulment of the mortgage and sale, which it could not validly consider
as a probate court.

Arguing their first assignment of error, the appellants assert that
Jose Francisco y Palumpon was the only one applying for positive
relief—recognition as natural child—and that once his petition for
recognition had been withdrawn, the court had no justification in
ordering the continuance of the hearing in so far as the other heirs
were concerned. The “amended motion”, appellants add, could serve no
purpose, because the motion was not susceptible to any amendment, for
it had ceased to exist. Strictly speaking, and at first blush,
appellants seem to be correct. Yet inasmuch as the original order
granting the widow Rosa Aldana one-half of the property was entirely
erroneous, and she apparently failed to fully protect her children’s
right, their point results in pure technicality on which “scant
consideration” is ordinarily bestowed.^[1] All the more when it serves to promote unfair advantage.

Nevertheless, let us carefully examine the motion of March 14, 1950.
It is signed by Tiburcia Magsalin. In it she asked for appointment as
guardian ad litem for the natural child and for the three legitimate children. She asked for remedial measures beneficial to the four
children. Hence, the motion may be regarded in a spirit of liberality,
as interposed on behalf of the said four children—not only a motion of
the natural child. It is true that the motion begins, “Comparece el
menor Jose Francisco y Palumpon, quien en este caso sera representado
por su curadora-ad litem etc.”; but that did not necessarily exclude
the other children for whom relief was prayed. Precisely, because the
complaint also prayed for relief beneficial to the three legitimate
children—contrary to the interests of the natural child as hereinbefore
related—the court declined to permit Tiburcia Magsalin to represent the
four children, but allowed her to act for three only. At any rate
“parties may be dropped or added by order of the court on motion of any
party or of its own initiatives at any stage of the action and on such terms as are just”.^[2] And in line with this precept, the court’s position may equitably be upheld.

Again, supposing the original motion of March 14 did not afford
legal standing to the three legitimate children, and that it could not
be “amended”, as contended by appellants, we perceive no reason to
prevent the court below from considering such amended motion as a new
and independent petition in the expediente, filed expressly on behalf of the three minor children.^[3]
The matter of time might conceivably be material in regard to
considering the “amended” motion as “original” motion; but in this case
it happens to be immaterial, because under section 5 of Rule 74 such
motion may be lodged with the court within one year after the minors
have reached majority; and they are still minors now. Incidentally this
section 5 fully answers appellants’ contention that Tiburcia’s moves
should have been initiated within two years after November 8, 1947.

Appellants may not justly complain that they thought such petition
for readjustment or reopening could take place only within two years as
prescribed by section 4 of Rule 74 and as annotated in the certificate
of title; because they are conclusively presumed to know the existence
and provisions of section 5, Rule 74. As the trial judge correctly
observed:

“But the whole trouble is that they accepted the
mortgage with the encumbrance annotated; and while it referred to Rule
74, Section 4, and did not specifically mention section 5, the fact
that section 4, Rule 74 was therein noted should have been sufficient
warning to them that the title was subject to the interest of persons
unduly prejudiced hereby. We take judicial notice of the fact that in
the adjudication in summary settlements more often than not, the order
merely says that the sale shall be subject to the provisions of section
4, Rule 74. This is the case because the Court can not foresee whether
the movant would be affected; but section 5 being an imposition of the
law, and being a mere sequence to the provisions of Section 4; we hold
that where the title on its face shows that it was subject to the
provisions of Rule 74, section 4, a third person who accepts it must
take notice that he is running the risk of interfering with the rights
of minors as provided under section 5, Rule 74.”

Contrary to appellants’ claim, relief for the minors cannot be
directed against the bond which, according to appellants, should have
been demanded under section 3, Rule 3 Amendments favored and liberally
construed; Diaz, et al., vs. De la Rama, 40 Off. Gaz., (No. 12) p.
2464. 74; because that section applies where personal property is
distributed—not where, as here, realty is the subject of partition.

Last stand of appellants is the proposition that the court of first
instance of Rizal, acting as probate court, had no jurisdiction to act
on the petition, which should have been the subject of a separate
action. And the case of Mendiola vs. Mendiola 7 Phil., p. 71 is cited;
but such precedent is inapplicable, because there a partition by
contract was signed by the parties who were all of age.

Of course, several decisions hold that “If during the summary
proceeding some of the heirs claim, by title adverse to that of the
decedent, some parcels of land, the probate court has no jurisdiction to pass upon the issue which must be decided in a separate suit”.^[4]
But here there is no question that the realty belonged to the decedent;
and a separate suit was unnecessary, specially remembering that in
these summary settlements the judge is expected to “proceed summarily”
and “without delay” “to determine who are the persons legally entitled
to participate in the estate, and to apportion and divide it among
them.”^[5]

The resolution under review apportions property admittedly belonging
to the decedent among his legal heirs. It is no objection that it
affects the herein appellants. They knew or ought to know the rule
permitting such to re-apportionment even after two years, and they have
been given every chance to be heard, having been by their own petition,
regarded as parties to the entire proceedings. And section 4, Rule 74
(which must be deemed extensible to situations covered by section 5,
Rule 74) expressly authorizes the court to give to every heir his
lawful participation in the real estate “notwithstanding any transfers
of such real estate” and to “issue execution” thereon. All this implies
that, when within the amendatory period the realty has been alienated,
the court in re-dividing it among the heirs has authority to direct
cancellation of such alienation in the same estate proceedings,
whenever it becomes necessary to do so. To require the institution of a
separate action for such annulment would run counter to the letter of
the above rule and the spirit of these summary settlements.

From the foregoing, the conclusion follows that no prejudicial error
was committed by the lower court, whose order is, consequently, affirmed with costs.

Paras, C. J., Pablo, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador and Concepcion, JJ., concur.

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^[1] Chua King vs. Whitaker, 46 Phil., 578, 583.

^[2] Section 11 Rule 3, Rules of Court cf. Alonso vs. Villamor, 16
Phil., 315; Chua King vs. Whitaker, supra.


^[3] Amendments favored and liberally construed; Diaz, et al., vs. Dela Rama, 40 Off. Gaz., (No. 12) p. 2464.

^[4] Guzman vs. Anog, 37 Phil. 61. 8 Rule 74 sect. 4.

^[5] Rule 74 sect. 4.