G.R. No. 20098. September 21, 1923

The question at issue in this appeal is about an order of the Court of First
Instance of Rizal, entered May 18, 1922, approving a plan of partition submitted
by Basilia Solapco, which order is assailed by Felisa Diaz, the administratrix
of the estate involved in this proceeding.

The errors assigned to such an order are made to consist in the failure of
the trial court to make findings of fact in said order; in preferring the plan
of partition approved without the parties having presented any proof pro or con;
in appointing a committee of partition; in fixing the usufruct of the widow; in
approving the aforesaid plan of partition; in not taking into consideration the
final account of the administratrix already approved by that court; and in
entering the order appealed from.

Pending this proceeding for the administration of the estate of the deceased
Felix Enriquez, of whom the administratrix Felisa Diaz is the surviving spouse,
the latter and the relatives of the deceased, his legal heirs, namely, Basilia
Solapco, Santos Solapco, and Brigida Juanjuangco, presented different plans of
partition of the said estate, of which plans, that submitted by the latter,
found on pages 22-34 of the bill of exceptions, is the one that met with the
approval of the court, as above stated.

There is no question but the widow Felisa Diaz, as well as the aforesaid
relatives of the deceased, has a right to share in the above-mentioned
inheritance. What is disputed by the parties is the individual allotment of
determinate property to the one or the other, for the solution of which
controversy the procedure provided by section 762 of the Code of Civil Procedure
must be followed, after adjudicating to each coheir his undivided portion in
accordance with section 753 of the said Code.

It does not appear that the court has adjudicated to each of the heirs his
undivided portion, nor that the procedure provided by section 762 of the said
Code was followed.

For the purposes of this decision, it is unnecessary to discuss in detail the
errors assigned.

The order appealed from is reversed, without special pronouncement as to
costs, and it is ordered that the trial court proceed to the distribution of the
inheritance in accordance with sections 753 and 762 and others in harmony
therewith of the Code of Civil Procedure. So ordered.

Araullo, C.J.,
Johnson, Street, Malcolm, Avanceña, Villamor, and Johns, JJ.,
concur.

---

October 19, 1923.

ROMUALDEZ, J.:

We have considered the motion for reconsideration dated October 5, 1923, and
the supplementary motion under date of October 9, 1923, presented by the
opponent-appellee, who in the former motion prays for a reconsideration of the
decision rendered herein, and in the latter petition that, should it not be
possible to reinstate the order appealed from, the decision of this court
revoking said order be at least modified so as to make clear the dispositive
part of our decision; and we now find:

That in cases like the one before us, wherein a controversy arises between
the persons entitled to the inheritance as to the portions to be allotted to
each, it is necessary that the different proceedings provided by sections 753
and 762 of the Code of Civil Procedure be clearly, specifically and orderly
followed so as to prevent unnecessary questions. The trial court, before
approving the plan of partition and allotting the properties according to said
plan, as it did, it should have satisfied itself that “the debts, funeral
charges, and expenses of administration, and the allowances, if any, made for
the expense of maintenance of the family of the deceased” were paid, as provided
by sections 753 and 754 of the aforecited Code. And it can be implied from the
order appealed from that certain debts and taxes were not paid, for it closes by
saying, “as soon as the expenses of administration and the inheritance tax
imposed by the law are paid.”

Without the inheritance having been totally liquidated, and it not appearing
that the bond required by section 754 aforecited was given, said order approves
the plan of partition in question and then assigns to the widow in usufruct
different properties from those assigned to her as such in the plan of
partition. Then it directs the sale of certain properties, appoints a committee
to partition the real properties and orders the delivery to Basilia Solapco of
properties specifically assigned to the heirs of Apolinaria Solapco.

The different proceedings separately provided by sections 753 and 763 of the
aforesaid Code are accumulated and confounded in this case, and what is worse,
it approves the allotment of certain real properties’ to the respective heirs
when on account of the controversy as to the allotment of specific realties,
they should have been adjudicated in undivided portions to the parties
interested as to which portions there should be a community which would subsist
until they arrive at an extrajudicial agreement, or should come into court for
the purpose of partitioning them, and should obtain said partition.

The proper course to be followed in this case, once the inheritance is
liquidated, is to enter an order determining the persons having a right to
inherit and the undivided portions of the inheritance to which each is entitled
under the provision of section 753 of the Code of Civil Procedure, without
adjudicating to any particular heir any specific property, but leaving the
parties interested to come to an extrajudicial agreement as to the distribution
of the real properties of the inheritance adjudicated pro indiviso, or,
if that is not possible, to come to court for the purpose of partitioning them
in accordance with section 762 of the Code of Civil Procedure, and only then
will there be occasion to appoint a committee to make the partition.

Now the lower court may, from the plans of partition submitted to it, adopt
such points as, without having any reference to specific adjudication of real
properties, would appear to be the most adequate determination under the law of
the undivided portions that pertain to each of the persons having a right to the
inheritance.

This is implied in the order contained in our decision, in which we did not
deem it necessary to go into details, as we do now, inasmuch as the language of
the law is clear.

Having made this explanation, the motion for reconsideration is denied. So
ordered.

Johnson, Street, Malcolm, Avanceña, Villamor, and Johns,
JJ., concur.