TESTATE ESTATE OF ALEJANDRO GONZALES Y TOLENTINO.

Alejandro Gonzales y Tolentino died testate in 1932, leaving as
forced heirs his widow Doña Manuela Ibarra de Gonzales and his five
legitimate children—Alejandro, Jr., Leopoldo, Manuela, Juan, and
Manuel, all surnamed Gonzales. Among the properties he left are several
big parcels of land or haciendas, among which is the Hacienda Toboy,
lot 7646, Asingan cadastre, which now concerns us. His will was
probated on August 27, 1932 in S. P. No. 42412 of the Court of First
Instance of Manila. Under said will, the testator gave the strict
legitime and the 1/3 available for betterment to his aforesaid five
legitimate children, the betterment subject to the usufruct of his
widow. The third portion for free disposal was bequeathed to his seven
illegitimate children, a brother and two sisters-in-law in equal
shares. But long before his death the testator in 1924 had given by way
of donation propter nuptias to his son Manuel Gonzales
(appellee in this case) 1/5 of Hacienda Toboy. It is this 1/5 portion
of said Hacienda and its selection by the donee that motivated the
present proceedings.

Since the probate of the will in 1932, nothing appears to have been
done by the heirs and legatees in the way of partitioning the estate
among them according to the terms of the said instrument until February
24, 1938, when a project of partition was prepared and filed in court
and finally approved by the probate court on July 11, 1942. tinder said
project of partition, 1/5 or 5/25 of Hacienda Toboy was to be set aside
for Manuel Gonzales and his wife Lourdes del Prado as the donation propter nuptias
made in 1924 by the testator. The remaining 4/5 was to be divided among
the five children, Including Manuel Gonzales, so that each child was to
have 4/25 of Hacienda Toboy. The Hacienda Masilsil at Umingan,
Pangasinan would go to the legitimate children, excluding Manuel
Gonzales; Hacienda Carosallsan at Umingan, Pangasinan and Hacienda Bued
would be given to the widow Manuela Ibarra; and Hacienda Evangelist a
at Omingan, Pangasinan was to go to the testator’s brother and two
sisters-in-law and to his seven illegitimate children.

Notwithstanding the project of partition and Its approval by the
court, It seems that no partition was made of the estate. So, on
November 5, 1943, a proposed amicable settlement was presented in
court, wherein the heirs among other things agreed and considered
binding and In full force the project of partition. This amicable
settlement was approved by the lower court on December 2, 1943.

Again, nothing seems to have been done to distribute the property, at least as regards Hacienda Toboy.

Evidently, for the purpose of partitioning Hacienda Toboy, the
legitimate children with the exception of Manuel Gonzales petitioned
the court to allow them or rather their surveyor to enter said Hacienda
in order to make a subdivision survey and plan of the same. Over the
objection of Manuel Gonzales the petition was granted and t he result
of the survey appears to have been embodied in the proposed subdivision
plan, annex X, whereby the whole Hacienda Toboy with the exception of a
portion set aside as the donation propter nuptias to Manuel
Gonzales and his wife, was divided into five equal parts, said to be
equal not only in area but also In value because each one of the five
heirs is supposed to receive the same area of rice land, corn land and
residential land.

Armed with this subdivision plan, annex X, the heirs, excluding
Manuel Gonzales filed a motion in court requesting that the share of
each heir in Hacienda Toboy be designated in accordance with said
subdivision plan.

By order of May 10, 1946, the trial court after hearing the
parties, directed the administrators (1) to deliver to the heirs of the
testator their respective shares in accordance with the project of
partition already approved; and (2) to deliver to the said heirs share
and share alike the remainder of the Hacienda Toboy after Manuel
Gonzales had selected within ten (10) days the portion donated to him.

On May 22, 1946, Manuel Gonzales filed a motion for reconsideration
of the above order asking among other things, for extension to thirty
days of the period of ten days granted to him within which to make the
selection, so as to give him an opportunity to secure the services of a
private surveyor to go over the property.

On July 5, 1946, the other heirs filed an answer to the motion of
Manuel Gonzales claiming that the ten-day period granted to Manuel
Gonzales, even including the thirty days extension requested by him
within which to make his selection, had long expired, and that
consequently, nothing more remained to be done except for the
administrators to distribute the Hacienda among the various heirs. They
asked that “the order of 10th May 1946, be left intact.”

By order of September 21, 1946 (this order is involved in the
present appeal), the trial court gave Manuel Gonzales thirty days
within which to select the portion of Hacienda Toboy donated to him and
directed the administrators to deliver to the heirs their respective
portions in the said Hacienda after Manuel had made his selection of
the donation. This order of September 21, 1946, was appealed by the
four co-heirs of Manuel Gonzales to the Supreme Court where it was
docketed under G.R. No. L-1254, On May 21, 1948, this Court affirmed
said order with costs against appellants, at the same time instructing
the parties and the lower court to take steps for the prompt
termination of the testate proceedings of Alejandro Gonzales y
Tolentino.

On October 9, 1946, Manuel Gonzales filed a motion in the trial
court informing said tribunal that pursuant to its order of September
21, 1946, he had selected lots 5 and 8 (contiguous lots) of the
subdivision plan of Hacienda Toboy (Annex X), submitted by his
eo-heirsj that since the combined area of said two lots was 420,849
square meters, there was an excess of 21,659,6 square meters, over the
donation of 1/5 of the Hacienda which 1/5 is equivalent to 399,189A
square meters, but that this excess may be deducted from his additional
1/5 share of the remaining portion as one of the five heirs, which 1/5
share is equivalent to 319,351.52 square meters. He asked that said two
lots 5 and 8 selected by him be adjudicated to him and that the
administrators be ordered to deliver them to him, Including his 1/5
share in the remainder of Hacienda Toboy.

On October 23, 1946, the other heirs filed a written opposition to
Manuel’s motion objecting to it on the ground that Manuel Gonzales had
allowed the ten-day period granted to him by order of the court of May
10, 1946 within which to make his selection to elapse; that the final
accounts of Manuel Gonzales as administrator of the estate from August,
1942 till May, 1946 had not yet been submitted in court, and that if
lots 5 and 8 (Hacienda Toboy) were adjudicated to him as he requested,
his co-heirs would be deprived of the means to enforce their claims
against/ and finally, that inasmuch as the court order of September 21,
1946 had been appealed, matters should be maintained in status quo
until the validity of the order appealed from was decided.

No court action seems to have been taken on that particular issue.

On November 29, 1946, Manuel Gonzales filed a motion wherein he
stated among other things that as a donee of the 1/5 portion of
Hacienda Toboy he was entitled to about 40 hectares, and that as a
co-heir he had a right to about 32 hectares, or a total area of about
72 hectares; that while the widow and the legatees and other heirs had
been enjoying the other properties of the estate since 1943, he, on the
other hand had not shared in any property of the estate of any
substantial value. So, he insisted that the administrators be ordered
to immediately deliver to him lots 5 and 8.

On December 4, 1946, the other heirs filed written opposition to
the last motion of Manuel Gonzales stating among other grounds that
said Manuel Gonzales had not filed his last account as administrator of
the estate; that he owed the estate a substantial sum which is more
than his share in the estate as heir; that because of the fault of said
Manuel Gonzales when he was administrator, the estate is still indebted
to various persons and the products of the Hacienda Toboy could not be
distributed until said debts were paid, and that inasmuch as the order
of the court of September 21, 1946 was pending appeal, the
administrators should retain any share of Manuel Gonzales In the estate
in order to satisfy any claim of his co-heirs in the event that the
order appealed from was eventually reversed by the Supreme Court.

On January 21, 1947 (this order is also involved in the present
appeal), the trial court acting upon the motion of Manuel Gonzales of
November 29, 1946 and finding it well founded despite the written
opposition of his co-heirs of December 4 1946, ordered the two
administrators to deliver said lots 5 and 8 of Hacienda Toboy to Manuel
Gonzales.

A copy of the said order of January 21, 1947 was received by counsel for the appellants and co-heirs on January 24, 1947.

On March 13, 1947, Manuel Gonzales filed a motion in the trial
court, seeking among other things to compel the two administrators to
comply with the order of January 21, 1947 ordering them to deliver lots
5 and 8 of Hacienda Toboy to him.

On March 17, 1947, the other heirs filed a petition in the trial
court to set aside the order of January 21, 1947on the ground that
Hacienda Toboy consists of rice land, corn land and portions which are
poor, sterile or barren, only good for residential purposes, and that
to do justice to each of the five heirs, after excluding the portion
donated to Manuel Gonzales, the remainder was divided into five
portions approximating each other in value, giving to each of the five
heirs the same area of rice land, corn land and residential land as
appears in the subdivision plan, annex X; that the two lots 5 and 8
selected by Manuel Gonzales as his donation are both rice lands and
besides exceeding in area 1/5 of the total area of the Hacienda, they
also exceeded the value of said 1/5 portion, besides disrupting the
whole scheme of the proposed subdivision; that as a matter of fact, the
subdivision plan, annex X, had not yet been approved by the court and
consequently, Manuel Gonzales had no right to make his selection of
lots therefrom; that although the order of January 21, 1947 was
received by counsel for the movants on January 24, 1947, in his office,
at the time, said counsel was in his home, sick, and that thereafter on
various days in the month of January and the following month of
February he had court trials or hearings and had no opportunity to be
informed of the said order until March 12, 1947. He reiterates his
prayer that the order of January 21, 1947 be set aside, and that an
order be issued approving the proposed subdivision or partition of
Hacienda Toboy, annex X, and fixing a period within which the heirs
could select their shares.

On March 29, 1947, Manuel Gonzales filed a long written opposition
and motion enumerating and describing in detail the court proceedings
since the will was first presented for probate, and emphasizing the
long delay in the distribution of the property, especially to him as
donee and as heir, and the prejudice caused to him by such delay. He
asked that the petition of March 17, 1947 be denied, and that the two
administrators be cited for contempt of court for Refusing to deliver
to him the two lots 5 and 8 of Hacienda Toboy, and that the Provincial
Sheriff of Pangasinan be ordered to deliver to him these two lots.

On September 25, 1947, the trial court Issued an order reviewing in
detail as did Manuel Gonzales in his last motion the proceedings had in
court from the beginning, stating among other things that the co-heirs
of Manuel Gonzales did not appeal from the order of May 10, 1946 which
had ordered the administrators to deliver to the heirs share and share
alike the remainder of Hacienda Toboy after Manuel Gonzales had
selected the portion donated to him; that the court by its order of
September 21, 1946, reiterated the right of Manuel Gonzales to make his
selection of the portion donated to him, and that although the heirs
and widow appealed from said order of September 21, 1946, the appeal
did not affect the final character of t he order of May 10, 1946; that
the selection made by Manuel Gonzales of lots 5 and 8 was in accordance
with the orders of the court of September 21, 1946 and of January 21,
1947 which were already final and executory, and it ordered that lots 5
and 8 be delivered to Manuel Gonzales. Ihe court denied the motion of
the widow and the other heirs dated March 17, 1947 and maintained its
order of January 21, 1947 for having become final and executory.

A motion for reconsideration filed by the other heirs having been
denied for lack of merit, said heirs filed this appeal making the
following assignment of errors:

I

“The lower court erred in holding that the order dated 21st September, 1946, which is on appeal, is final and executory.

II

“The
lower court erred in allowing oppositors and appellees to select their
share contrary to the proposed project of partitions.”

The question involved in the first error assigned has become moot.
As already stated at the beginning of this decision, appeal was taken
by the same petitioners-appellants in the present case from that order
of the trial court of September 21, 1946, to this Court under G.R. No.
L-1254, and that said order was affirmed in our decision promulgated on
May 21, 1948. Moreover, the issue involved in the appeal taken from
said order of September 21, 1946, did not affect in any manner
whatsoever the question raised in the present appeal, namely, the right
of Manuel Gonzales to select the 1/5 portion of Hacienda Toboy donated
to him by his father.

Going to the second error assigned, we find that It is now too late
for the appellants to raise the point of the propriety of allowing
Manuel Gonzales to select his share contrary to the proposed project of
partition. What was really done by the trial court was to allow him to
select not his share as an heir but his 1/5 portion as a donation
propter nuptias. We repeat that it is now too late to raise this point.
This right of selection was first granted Manuel Gonzales in the order
of the court of May 10, 1946, It was not questioned by the appellants.
On the contrary, the appellants in their pleading of July 5, 1946,
called the attention of t he court that inasmuch as the ten-day period
granted to Manuel Gonzalas within which to make his selection had
already elapsed, appellants prayed that the order of May 10, 1946 be
held intact. In other words, the propriety and correctness of giving
Manuel Gonzales the right or privilege to select his 1/5 portion as
donation propter nuptias was never questioned. It was
acquiesced in by the appellants. As a matter of fact, counsel for
appellants in his brief, pages 21-22, as well observed by counsel for
appellee, states that “the only right acquiesced to by the heirs was
for him (Manuel Gonzales) to choose his 1/5 portion as donation propter nuptias.”
This right of selection granted by the trial court in its order of May
10, 1946 was reiterated in the order of September 21, 1946, and on
appeal this order of September 21, 1946, was affirmed by the Supreme
Court.

It only remains for. us to determine the propriety and correctness
of tie appellee’s selection of lots 5 and 8 of the subdivision plan,
annex X, of his 1/5 portion as donation propter nuptias. We
see the point of the appellants that these two lots are both rice lands
and besides the fact that their total area exceeds 1/5 of t he
Hacienda, they do not include any of the poorer portions of the
Hacienda such as corn land or the sterile land good only for
residential purposes. We should remember however, that the right
accorded Manuel Gonzales to make his selection was unqualified. Of
course, he should not have been allowed to abuse that right. But he
could not very well be expected to select any one of the subdivision
made by the appellants in their subdivision plan, annex X, In fact,
said plan gave no choice nor contemplated any selection whatsoever.
Appellants arbitrarily set aside without consulting the appellee the
portion supposed to represent his donation. In the first place, that
portion set aside with an area of 297,969 square meters is much less
than 1/5 or 5/25 of the whole Hacienda, which should correspond to the
donation according to the very project of partition previously prepared
and filed by the appellants themselves and approved by the court. It is
even less than 1/5 of the remaining 4/5 or 4/25 of the Hacienda, that
should correspond to one of the five heirs, both in area and in value
according to the very computations and valuations given by the
appellants in their subdivision plan, annex X. For instance, rice land
is supposed to be the most valuable portion of the Hacienda, While each
heir according to said subdivision plan gets about 21 hectares of rice
land as part of his ty25 portion, the appellee who as donee has a
bigger portion because he has 5/25 is assigned only 18-1/2 hectares of
rice land. In other words, the whole scheme of the subdivision plan
(Annex X) was wrong. It is contrary to and violates the basic project
of partition agreed to by the parties and approved by the court. What
should have been done was to divide the whole hacienda into five
portions, even according to the theory of the appellants, equal both in
area and In value, and then let the appellee select any one of those
five portions as his donation. After his selection the four remaining
portions should again be consolidated and divided into five equal parts
to be assigned to the five heirs either by lottery or in some other
manner agreeable to them. But this was not done.

It is true that the selection made by the appellee is rather unjust
to his co-heirs but as his counsel states in his brief, there might be
some reasons behind this seeming injustice which may have prompted the
lower court in letting Manuel Gonzales select his donated portion in
the first place, and later on sanctioning his selection. Although the
donation was made way back in 1924, the donee does not seem to have
ever received or occupied the land donated or enjoyed its fruits.
Again, as stated in his motion of November 29, 1946, and not disputed
or denied by the appellants in their subsequent pleadings, although his
co-heirs had enjoyed other properties of the estate of their deceased
father since 1943, he, on the other hand, had not had that enjoyment or
benefit. Then, according to the project of partition prepared by the
heirs and approved by the court, the whole Hacienda of Masilsil at
Umingan, Pangasinan, was given to the appellants to the exclusion of
the appellee.

But we note a flaw in the computation of the appellee of the area
which he claims as his donation of 1/5 of the Hacienda, He bases his
computation on the total area of 1,995,947 square meters. From this
should be deducted 9,482 square meters covered by roads, leaving a net
area of 1,986,465 square meters. One-fifth of this net area will
constitute the extension of the donation for purposes of computing the
excess of the total of the two lots 5 and 8.

In conclusion, we find that the right given by the trial court to
Manuel Gonzales to select his 1/5 portion of Hacienda Toboy as his
donation propter nuptias was not only not objected to but was
also acquiesced in by the appellants and it is now too late to raise
the point; that his selection of lots 5 and 8 of subdivision plan,
annex X, has been approved by the trial court and any error or
impropriety committed, was in part due to the fault of t he appellants
in having prepared and presented in court a plan which did not conform
to the scheme and theory of the project of partition approved by the
court; and that furthermore, the appellants did not question in time
the approval by the court of his selection of lots 5 and 8.

In view of the foregoing, the order appealed from is hereby
affirmed. To do Justice to the appellants, and to carry out as much as
possible the scheme of t he project of partition, after separating lots
5 and 8, a new subdivision plan of the Hacienda may be made so as to
divide it into five portions among the five heirs, the four portions
corresponding to each of the appellants to be each equal in area as
well as in value, and the fifth portion to correspond to the appellee
to be less in extension because of t he excess incurred in by him in
selecting lots 5 and 8 and, possibly, also less in value to make up for
the fact that his selected lots 5 and 8 are supposed to comprise the
most valuable portions of the Hacienda. No pronouncement as to costs.

Ozaeta, Paras, Feria, Pablo, Bengzon, Tuason, and Reyes, JJ., concur.