INTESTATE ESTATE OF PABLO C. LUCE. PIO PORTEA, PETITIONER AND APPELLANT, VS. JACINTO PABELLON ET AL., OPPOSITORS AND APPELLEES.

This is an appeal from a judgment of the Court of First
Instance of Quezon holding that, upon the death of Pablo Luce, “all his
properties were inherited by his legitimate daughter Cristeta Luce who survived
him for at least half an hour, she having died about half an hour after” the
death of her father.

In the notice filed by the petitioner, it was announced that
the appeal was taken from said judgment to the Supreme Court, on the ground that
the question involved is one of law; and in the record on appeal filed by him
and approved by the trial court, it was prayed that the case be certified and
elevated to the Supreme Court, as only a question of law is involved.

Following the decision in Millar vs. Nadres, I Off. Gaz., 975,
cited in Moran’s Comments on the Rules of Court, 2d ed., Vol. I, p. 753, the
appellant cannot now raise any question of fact. Even so, the writer of this
opinion expresses his adherence to his dissent from the majority decision in the
case cited, he being of the conviction that, although the appellant announces
his intention to raise merely questions of law and appeal directly to the
Supreme Court, this Court is bound to certify the case to the Court of Appeals,
where said appellant actually raises questions of fact in his brief. However, in
view of the stand of the majority, the author of this opinion has undertaken to
examine the factual contention of the appellant, in relation to the evidence on
record, with the result that he has come to the conclusion that the appealed
judgment is supported by the proof.

The appellant insists that, since there is no proof as to the
definite time of the death of Pablo Luce and his daughter Cristeta Luce, the law
applicable is section 69, sub-section ii (5), of Rule 123 of the Rules of
Court, under which it is presumed that, in the absence of any showing as to
which of two persons (who have perished in the same calamity) died first, the
person between the ages of 15 and 60 is presumed to have survived the person
under 15 or over 60. In this connection, it is alleged that Pablo Luce was 45
years old, whereas Cristeta Luce was only 13 years of age. In the face of the
factual conclusion of the trial court that Pablo Luce died half an hour before
Cristeta Luce died, which fhding the appellant is now estopped to controvert and
which (in the opinion of the wiiter hereof) is furthermore supported by the
evidence, the rule cited by the appellant regarding the disputable presumption
of survivorship cannot apply.

The appellant also contends that, even assuming that Cristeta
Luce survived her father Pablo Luce, her estate should still be adjudicated to
the appellant who is the nephew of Pablo Luce. Reliance is placed on article 925
of the Civil Code providing that the right of representation shall always take
place in the direct descending line but never in the ascending, and that in the
collateral line it shall take place only in favor of the children of brothers
and sisters, whether they may be of the ishole or half blood. It is intimated
that because the oppositors-appellees are not in the direct descending line, but
are only maternal grandparents of Cristeta Luce, they cannot inherit by
representation. Aside from the fact that the trial court correctly withheld any
adjudication as to the estate of Cristeta Luce, because it is not included in
the intestate proceedings instituted by the petitioner-appellant, said
oppositors-appellees are claiming Inheritance from their grandchild Cristeta
Luce in their own right as ascendants, and not merely by right of
representation, it appearing that the said Cristeta Luce did not leave any
legitimate children or descendants. (Arts. 1935 and 937, Civil Code.)

Wherefore, the appealed judgment is affirmed with costs against
the appellant. So ordered.

Moran, C.J., Ozaeta, Feria, Bengzon, Tuason,
Montemayor, and Reyes, JJ., concur.

PADILLA, J.:

I concur in the result.