LUZ HERMOSA, AS ADMINISTRATRIX OF THE INTESTATE ESTATE OF FERNANDO HERMOSA, SR., AND FERNANDO HERMOSA, JR., PETITIONERS, VS. EPIFANIO M. LONGARA, RESPONDENT.

This is an appeal by way of certiorari against a decision of the Court
of Appeals, fourth division, approving certain claims presented by
Epifanio M. Longara against the intestate estate of Fernando Hermosa,
Sr. The claims are of three kinds, namely, P2,341.41 representing
credit advances made to the intestate from 1932 to 1944, P12,924.12
made to his son Francisco Hermosa, and P3,772 made to his grandson,
Fernando Hermosa, Jr. from 1945 to 1947, after the death of the
intestate, which occurred in December, 1944. The claimant presented
evidence and the Court of Appeals found, in accordance therewith, that
the intestate had asked for the said credit advances for himself and
for the members of his family “on condition that their payment should
be made by Fernando Hermosa Sr. as soon as he receive funds derived
from the sale of his property in Spain. Claimant had testified without
opposition that the credit advances were to be “payable as soon as
Fernando Hermosa, Sr.’s property in Spain was sold and he received
money derived from the sale.” The Court of Appeals held that the
advances did not become due until the administratrix received the sum
of P20,000 from the buyer of the property. Upon authorization of the
probate court in October, 1947, the administratrix sold the property in
November, 1947, and the same was paid for subsequently. The claim was
filed on October 2, 1948.

It is contended on this appeal
that the obligation contracted by the intestate was subject to a
condition exclusively dependent upon the will of the debtor (a condicion potestativa) and therefore null and void, in accordance with Article 1115 of the old Civil Code. The case of Osmeña vs.
Rama, (14 Phil. 99) is cited to support appellants contention. In this
case, this court seems to have filed that a promise to pay an
indebtedness “if a house of strong materials is sold” is an obligation
the performance of which depended on the will of the debtor. We have
examined this case and we find that the supposed ruling was merely an
assumptions and the same was not the actual ruling of the case.

A careful consideration of the condition upon which the payment of the
sums advanced was made to depend, i. e., “as soon as he (intestate)
receive funds derived from the sale of his property in Spain,”
discloses the fact that the condition in question does not depend
exclusively upon the will of the debtor, but also upon other
circumstances beyond his power or control. If the condition were “if he
decides to sell his house,” or “if he likes to pay the sums advanced,”
or any other condition of similar import implying that upon him (the
debtor) alone payment would depend, the condition would be potestativa,
dependent exclusively upon his will or discretion. In the form that the
condition was found by the Court of Appeals, however, the condition
implies that the intestate had already decided to sell his house, or at
least that he had made his creditors believe that he had done so, and
that all that was needed to make his obligation (to pay his
indebtedness) demand- able is that the sale be consummated and the
price thereof remitted to the islands. Note that if the intestate would
prevent or would have prevented the consummation of the sale
voluntarily, the condition would be or would have been deemed or
considered complied with (Article 1119, old Civil Code). The will to
sell on the part of the intestate was, therefore, present in fact, or
presumed legally to exist, although the price and other conditions
thereof were still within his discretion and final approval. But in
addition to this acceptability of the price and other conditions of the
sale to him (the intestate-vendor), there were still other conditions
that had to occur to effect the sale, mainly that of the presence of a
buyer, ready, able and willing to purchase the property under the
conditions demanded by the intestate. Without such a buyer the sale
could not be carried out or the proceeds thereof sent to the islands.
It is evident, therefore, that the condition of the obligation was not
a purely potestative one, depending exclusively upon the will of the
intestate, but a mixed one, depending partly upon the will of the
intestate and partly upon chance, i. e., the presence of a buyer of the
property for the price and under the conditions the intestate. The
obligation is clearly governed by the second sentence of Article 1115
of the old Civil Code (8 Manresa 126). The condition is, besides, a
suspensive condition, upon the happening of which the obligation to pay
is made dependent. And upon the happening of the condition, the debt
became immediately due and demandable. (Article 1114, old Civil Code; 8
Manresa 119.)

One other point needs to be considered, and
this is the fact that the sale was not effected in the lifetime of the
debtor (the intestate), but after his death and by his administrator,
the very wife of the claimant. On this last circumstance we must bear
in mind that the Court of Appeals found no evidence to show that the
claim was the product of a collusion or connivance between the
administratrix and the claimant. That there was really a promise made
by the intestate to pay for the credit advances may be implied from the
fact that the receipts thereof had been preserved. Regularity of the
advances and the close relationship between the intestate and the
claimant also support this conclusion.

As to the fact that
the suspensive condition took place after the death of the debtor, and
that advances were made more than ten years before the sale, we are
supported in our conclusion that the same is immaterial by Sanchez
Roman, who says, among other things, as to conditional obligations:

1.ª La obligacion contractual afectada por condicion suspensiva, no es exigible hasta que se cumpla la condicion, * * *.

2.ª El cumplimiento de la condicion suspensiva retrotrae los efectos del acto juridico originario de la obligacion a que aquella afecta, al tiempo de la celebracion de este; * * *.

3.ª La referida retroaccion, no
solo tiene lugar cuando el cumplimiento de la condicion se verifica en
vida de los contrayentes, si que tambien se produce cuando aquel se
realiza despues de la muerte de estos. (4 Sanchez Roman, p. 122) (Italics supplied.)

As the obligation retroacts to the date when the contract was entered
into, all amounts advanced from the time of the agreement became due,
upon the happening of the suspensive condition. As the obligation to
pay became due and demandable only when the house was sold and the
proceeds received in the islands, the action to recover the same only
accrued, within the meaning of the statute of limitations, on the date
the money became available here, hence the action to recover the
advances has not yet prescribed.

The above considerations
dispose of the most important question raised on this appeal. It is
also contended that the third group of claims, i. e., credits furnished
the intestate’s grandson after his (intestate’s) death in 1944, should
not have been allowed. We find merit in this contention. Even if
authorization to furnish necessaries to his grandson may have been
given, this authorization could not be made to extend after his death,
for two obvious reasons. First becuase the obligation to furnish
support is personal and is extinguished upon the death of the person
obliged to give support (article 150, old Civil Code), and second
because upon the death of a principal (the intestate in this case), his
agent’s authority or authorization is deemed terminated (article 1732,
old Civil Code). The part of the decision allowing this group of
claims, amounting to P3,772, should be reversed.

One last
contention of the appellant is that the claims are barred by the
statute of non-claims. It does not appear from the record that this
question was ever raised in any of the courts below. We are, therefore,
without authority under our rules to consider this issue at this stage
of the proceedings.

The judgment appealed from is hereby
affirmed in so far as it approves the claims of appellee in the amounts
of P2,341 and P12,942.12, and reversed as to that of P3,772. Without
costs.

Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo, and Bautista Angelo, JJ., concur.

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CONCURRING AND DISSENTING

PARAS, C.J.:

I
concur in the majority decision insofar as it reverses the appealed
judgment allowing the claim for P3,772, but dissent therefrom insofar
as it affirms the appealed judgment approving appellee’s other claims.

The principal question is whether the stipulation to pay the advances
“on condition that their payment should be made by Fernando Hermosa,
Sr. as soon as he receives funds derived from the sale of his property
in Spain”, and making said advances “payable as soon as Fernando
Hermosa, Sr.’s property in Spain was sold and he received money derived
from the sale,” is a condicion potestiva and therefore null and
void in accordance with article 1115 of the old Civil Code. My answer
is in the affirmative, because it is very obvious that the matter of
the sale of the house rested on the sole will of the debtor, unaffected
by any outside consideration or influence. The majority admit that if
the condition were “if he decides to sell his house” or “if he likes to
pay the sums advanced,” the same would be potestive. I think a mere
play of words is invoked, as I cannot see any substantial difference.
Under the condition imposed by Fernando Hermosa, Sr., it is immaterial
whether or not he had already decided to sell his house, since there is
no pretence that acceptable conditions of the sale had been made the
subject of an agreement, such that if such conditions presented
themselves the debtor would be bound to proceed with the sale. In the
case at bar, the terms are still subject to the sole judgment—if not
whims and caprice—of Fernando Hermosa, Sr. In fact no sale was effected
during his lifetime.

As the condition above referred to is
null and void, the debt resulting from the advances made to Fernando
Hermosa, Sr. became either immediately demandable or payable within a
term to be fixed by the court. In both cases the action has prescribed
after the lapse of ten years. In the case of Gonzales vs. De Jose (66 Phil., 369, 371), this court already held as follows:

“We
hold that the two promissory notes are governed by article 1128 because
under the terms thereof the plaintiff intended to grant the defendant a
period within which to pay his debts. As the promissory notes do not
fix this period, it is for the court to fix the same. (Citing cases.)
The action to ask the court to fix the period has already prescribed in
accordance with section 43 (1) of the code of Civil Procedure. This
period of prescription is ten years, which has already elapsed from the
execution of the promissory notes until the filing of the action on
June 1, 1934. The action which should be brought in accordance with
article 1128 is different from the action for the recovery of the
amount of the notes, although the effects of both are the same, being,
like other civil actions, subject to the rules of prescription.”

The majority also contend that the condition in question depended on
other factors than the sole will of the debtor, and cite the presence
of a buyer, ready, able and willing to purchase the property. This is
of no moment, because, as already stated, in the absence of any
contract setting forth the minimum or maximum terms which should be
acceptable to the debtor, nobody could legally compel Fernando Hermosa,
Sr. to make any sale.