JUAN GUTING, ADMINISTRATOR OF THE ESTATE OF THE DECEASED NARCISO GUTING, PETITIONER AND APPELLANT, VS. JULIAN RAMBOA ET AL., OPPONENTS AND APPELLEES.

This action was instituted in the Court of First Instance of the Province of
Tarlac. Its purpose was to obtain a settlement and division of the estate among
the heirs of Narciso Guting, who died in the month of January, 1915.

To a division of the estate among the heirs of Narciso Guting, the defendants
presented their opposition claiming one-half of said estate. The defendants
claim that all of the property in question is ganancial property
acquired during the marriage of Narciso Guting with Margarita Dancel; that they
are the only legitimate heirs of Margarita Dancel and are therefore entitled to
one-half of said estate.

An examination of the record discloses certain facts which are
undisputed:

(1) That Narciso Guting and Margarita Dancel were legally married in the
month of April, 1858, and continued to live together as man and wife until the
year 1900. (Exhibit B, page 46; Exhibit C, pages 46-47.)

(2) That Margarita Dancel died October 11, 1900 (Exhibits B and C), without
leaving any children.

(3) That in the month of November, 1901, Narciso Guting was legally married
to Antonia Guiang (Exhibit 4, page 44).

(4) That Narciso Guting died in the month of January, 1915.

(5) That Margarita Dancel had two sisters arid one brother who were Juana
Dancel, Andrea Dancel, and Pablo Dancel; that said sisters and brother had died
and that the defendants are their children; that the defendants Julian Rombaoa,
Miguel Rombaoa, and Apolonia Rombaoa are the children of Juana Dancel; that
Matias Pagarigan is the son of Andrea Dancel; that Jorge Dancel, Isaac Dancel,
Gerarda Dancel, Teodorico Dancel, Petra Dancel, and Apolonia Dancel are the
children of Pablo Dancel.

(6) That none of the property in question was acquired after the marriage of
Narciso Guting and Antonia Guiang, except, perhaps, the land mentioned in the
proyecto de liquidacion marked with the letter L (H of the inventory;
Exhibit 2); and the land described in the Torrens title, Exhibit 3.

The only disputed fact between the appellant and the appellees was whether or
not the property described in the proyecto de liquidacion had been
acquired during the existence of the marriage relation between Narciso Guting
and Margarita Dancel between the years 1858 and 1900, except the parcels
above-mentioned (parcel L and Exhibit 3).

The lower court, after hearing the evidence adduced during the trial of the
cause, reached the conclusion that all of said property, with said exceptions,
was ganancial property; that one-half of the same belonged to the heirs
of Margarita Dancel and the other half to the heirs of Narciso Guting (article
1426 of the Civil Code). Upon that conclusion the lower court rendered the
following judgment, after a discussion of such questions of law as were raised
by the parties in the court below:

“By reason of the aforesaid records the court orders the executor Juan Guting
within 15 days to produce before the Court of First Instance of Tarlac an
adjustment of the estate of both spouses in accordance with the terms set fourth
in the instrument, setting forth clearly and specifically the property or
portions thereof that constitute the ganancial half for the heirs of
Margarita Dancel. So ordered.”

An examination of the dispositive part of said judgment clearly discloses the
fact that it is not a final judgment and, of course, is therefore not
appealable. (Ron vs. Mojica, 8 Phil. Rep., 328; Montemayor vs.
Cunanan, 14 Phil. Rep., 454.)

Said judgment leaves many things yet to be done:

(1) The Administrator is ordered to make a list or description of the
property to be divided:

(2) To indicate the portions, or parts, or parcels which constitute the
one-half of said property which belongs to the defendants.

In making a description or division of the various parcels of property
involved many difficulties may arise, and it is not at all certain that all and
each of the different properties or parcels of land, in question are capable of
a physical division. Some of them may be too small to profitably divide. It may
be necessary, in some cases, to sell certain parcels for the reason that they
cannot be physically divided and to divide the proceeds of such sale among the
respective claimants. And, moreover, it is not at all certain that the
defendants, and perhaps even the heirs of the deceased, will be satisfied with
the division made by the Administrator; in which case, they will be entitled to
be heard by the court upon the question of the equitable division of the
property and to present proof in support of their claim.

Thus it is seen that the questions involved in the present litigation have
not yet been settled and the judgment is therefore not final.

Without, at this time, discussing the questions raised by the appellant, and
for the reasons above given, the appeal is hereby dismissed and it is hereby
ordered and decreed that the record be returned to the court from whence it
came, for such further proceedings in the premises as may be necessary to
finally conclude the questions presented to the trial court. In the further
proceedings in the court below, it will not be necessary to retake any of the
evidence already adduced, and without finding as to costs, so ordered.

Torres, Malcolm, and Avanceña, JJ., concur.

Fisher, J., with whom concurs Street, J., concurring and
dissenting in part.

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CONCURRING AND DISSENTING OPINION

FISHER, J., concurring and dissenting:

I concur in the remanding of the case to the lower court, inasmuch as the
judgment appealed from is not final, but I dissent from the resolution contained
in the majority opinion, with respect to the partition of the property. If the
parties do not expressly ask the partition of the inheritance (Act No. 190, sec.
762) the court must adjudicate the inheritance pro indiviso,
designating the aliquot parts corresponding to each of the interested parties.
(Act No. 190, sec. 753.) Moreover, I believe that, in this decision, we can not
decide definitely the disputed questions, and consequently, the parties are not
prevented from again bringing the same questions in this appeal before the Court
of First Instance and before this court in case of appeal.