IN RE INTESTATE ESTATE OF THE LATE PIO DURAN, CIPRIANO DURAN AND MIGUEL DURAN, PETITIONERS AND APPELLANTS, VS. JOSEFINA B. DURAN, MOVANT-OPPOSITOR AND APPELLEE.

Pio Duran died without testament on
February 28, 1961 in Guinobatan, Albay.  Among his alleged heirs are Josefina Duran, as surviving spouse; several brothers
and sisters; nephews and nieces.

Subsequent to his death, on June 2, 1962, Cipriano Duran, one of the
surviving brothers, executed a public instrument assigning and renouncing his
hereditary rights to the decedent’s estate in favor of Josefina Duran, for the
consideration of P2,500.00.

A year later, on June 8, 1963, Cipriano
Duran filed in the Court of First Instance of Albay a
petition for intestate proceedings to settle Pio
Duran’s estate, fur­ther asking that he be named the administrator.  An ex parte motion to be appointed special administrator was also filed by
him.

Against said petition, Josefina Duran filed on Au­gust 9, 1963 an opposition, praying for its
dismissal upon the ground that the petitioner is not an “interested
person” in the estate, in view of the deed of transfer and renunciation
afore-stated, attaching a copy of the same;
in the alternative, she asked to be appointed administratrix.

Replying to this, Cipriano alleged, on
September 11, 1963, in his
opposition to the motion to dismiss, that
Josefina Duran was not the decedent’s
wife.  Anent the deed of
assignment, he contended that the same was
procured thru fraud, with gross inadequacy of price and vitiated by lesion.

Still later, another brother of the decedent, Mi­guel Duran,
filed on September 14, 1963, a
petition to be joined as co-petitioner of Cipriano.  Josefina Duran moved to strike out said
petition as an improper attempt to intervene in the case.  She also filed a reply to Cipriano’s
opposition to her motion to dismiss.  In
turn, Miguel filed an opposition to Josefina’s motion to strike out.

Acting on said motions, on June 5, 1964, the Court of First Instance issued an order dismissing
the petition of Cipriano for his lack of interest in
the estate.  Said lack of interest was
premised on the deed of transfer executed by Cipriano,
regarding which the court declared itself without power to examine in said
proceedings, col­laterally, the alleged fraud, inadequacy of price and le­sion
that would render it rescissible or voidable.  And with
the petition’s dismissal, Miguel’s petition to be joined as co-petitioner was deemed without
leg to stand on.

Appeal to Us directly, on questions of law, was ta­ken by Cipriano and Miguel Duran.

The Rules of Court provides that a petition for administration
and settlement of an estate must be filed by an “interested person”
(Sec. 2, Rule 79).  Appellants contend
that the deed of assignment executed by Cipriano did
not operate to render him a person without interest in the estate.  Relying on In Re Irene Santos, L-11848,
May 31, 1962, they argue that an assignment by one heir of his share in the
estate to a co-heir amounts to
a par­tition needing approval by the settlement court to be ef­fective; and
that the assigning heir does not lose his status as a person interested in the
estate, even after said assignment is approved by the court.

The situation in the Santos case involves an assign­ment between
co-heirs pendente lite,
during the course of settlement proceedings, properly and validly
commenced.  At the time of said
assignment, therefore, the settlement court had already acquired jurisdiction
over the proper­ties of the estate.  As a
result, any assignment regard­ing the same had to be approved by said
court.  And since the approval of the
court is not deemed final until the estate is closed, the assigning heir
remains an interes­ted person in the proceedings even after said approval,
which can be vacated, is given.

In the present case, however, the assignment took place when no
settlement proceedings was pending.  The properties subject matter of the
assignment were not un­der the jurisdiction of a
settlement court.  Allowing that the
assignment must be deemed a partition as bet­ween the assignor and assignee,
the same does not need court approval to be effective as between the parties.  An extrajudicial partition is valid as
between the par­ticipants even if the requisites of Sec. 1, Rule 74 for
extrajudicial partition are not followed, since said re­quisites are for
purposes of binding creditors and non­participating heirs only (Hernandez v. Andal, 78 Phil. 196).  Should it be contended that said
partition was attended with fraud, lesion or inadequacy of price, the remedy is
to rescind or to annul the same in an action for that purpose.  And in the meanwhile, the assigning heir
cannot initiate a settlement proceedings, for until the deed of assignment is
annulled or rescinded, it is deemed valid and effective against him, so that he
is left without that “interest” in the estate required to petition for
settlement proceedings.

Anent appellant Miguel Duran, he sought in his pe­tition below to
“join petitioner Cipriano Duran as co-petitioner
in the latter’s petition x x x and incorpo­rates herein by adoption all the
allegations made in said petition.” (Record on Appeal,
pp. 45-46).  The same, therefore,
amounted to a petition to intervene in the settlement proceedings.  As aptly ruled by the court a quo, since there was
really no settlement proceedings in
the first place, the petition to intervene must be denied.

Finally, altho Josefina Duran prayed to
be appointed administratrix, her doing so did not admit
to ratifica­tion of the petition for settlement under the ruling in Eusebio v. Valmores, 97 Phil.
163, since she did so mere­ly by way of an alternative prayer, should her
motion to dismiss fail.  And said motion
to dismiss was properly sustained.

WHEREFORE, the dismissal order appealed from is hereby
affirmed, with costs against appellants.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, and
Ruiz Castro, JJ.,
concur.