IN THE MATTER OF THE INTESTATE ESTATE OF VICENTE TAD-Y, DECEASED. JOSE E. TAD-Y, REPRESENTED BY HIS GUARDIAN AD LITEM JUAN JAMORA, APPELLANT, MARIA TAD-Y, WITH HER HUSBAND CASIM…

AVANCEÑA, C.J.:


On December 26, 1922, Vicente Tad-Y died in the municipality of Iloilo,
Province of Iloilo, leaving his widow Rosario Esler, a legitimated son Jose
Tad-Y, and an acknowledged natural daughter Maria Tad-Y, who are declared in the
judgment appealed from as his only legal heirs. In said judgment there was
adjudicated to Rosario Esler the usufruct of the third available for betterment,
to Jose Tad-Y the third, constituting the short legitime, in full ownership, and
the naked ownership of the third available for betterment, and to Maria Tad-Y
the free third in full ownership.

This allotment made by the lower court is against the law. The acknowledged
natural child is entitled only to one-half of the portion pertaining to each of
the legitimate children not bettered (art. 849, Civil Code). As in the instant
case there is only one legitimate child who inherits together with the widow, he
is entitled to the third constituting the short legitime in full ownership and
only to the naked ownership of the third available for betterment, since the
usufruct of this third belongs to the widow. According to the allotment made by
the trial court, the natural child would, in this case, receive not one-half,
but a portion equal to that of the legitimate child. It is true that the latter
has in addition the third available for betterment, but that is only in naked
ownership. The hereditary portion of the natural child, which the law fixes at
one-half of the share pertaining to the legitimate child not bettered, must be
one-half in quality and quantity.

The decision of this court in Chico vs. Viola and Reyes (40 Phil., 316),
followed by the lower court, is not applicable in this case. In that case there
was but one legitimate daughter and one natural son, and the daughter got in
full ownership the two-thirds of the inheritance, while in the instant case
there is a widow who is entitled to the usufruct of the third available for
betterment, thus lessening in quality the portion that without the widow the
legitimate child would get.

The attorney for the appellant Jose Tad-Y presented a tentative partition in
the Court of First Instance, proposing the allotment to the legitimate son Jose
Tad-Y of four- ninths (4/9) in full ownership and two-ninths 2/9) in naked
ownership; to the natural daughter, Maria Tad-Y, two- ninths (2/9) in full
ownership and one-ninth (1/9) in naked ownership; and to the widow Rosario Esler
the usufruct of three-ninths (3/9). Apparently this tentative partition is in
accordance with law, for it gives the natural daughter exactly one-half of what
pertains to the legitimate son in quality and quantity. But it is still against
the law in so far as it takes the usufruct of the widow from the free third,
when article 835 of the Civil Code provides that it shall be taken from the
third available for betterment.

Attorney Gregorio Araneta, who appeared on behalf of the appellant Jose Tad-Y
at the oral argument, proposes another way of distribution, with which we agree,
finding as we do, that the same is in accordance with the law.

To determine the share that pertains to the natural child which is but
one-half of the portion that in quality and quantity belongs to the legitimate
child not bettered, the latter’s portion must first be ascertained. If a widow
shares in the inheritance, together with only one legitimate child, as in the
instant case, the child gets, according to the law, the third constituting the
legitime in full ownership, and the third available for betterment in naked
ownership, the usufruct of which goes to the widow. Then the natural child must
get one-half of the free third in full ownership and the other half of this
third in naked ownership, from which third his portion must be taken, so far as
possible, after deducting the funeral and burial expenses. An excess would
result consisting in the usufruct of the surplus remaining of the other half of
this third, which for lack of testamentary provision must go to the legitimate
child. As upon the death of the widow, the usufruct of the third available for
betterment will pass to the legitimate child, in order to maintain this
proportion established by the law, the natural child must in turn get the
usufruct of the surplus of this half of the free third. An error is assigned
also to the action of the trial court in not having declared collationable the
sum of P11,500 alleged to have been received by Maria Tad-Y from her deceased
father in his lifetime as a gift or by lucrative title. This point, however, was
not raised in the lower court, nor considered or decided at any time by the
trial court; and therefore cannot be the subject of any pronouncement of this
court in this appeal. This sum of P11,500 is mentioned as collationable in a
tentative partition attached by the appellant to his motion for reconsideration
of the judgment rendered by the trial court, but that motion has reference only
to the proportionate share the heirs must have in the inheritance and the ruling
of the trial court covers this point only. It is held that no pronouncement can
be made on this assignment of error, without prejudice to the question being
submitted for decision to the lower court upon the making of the partition in
accordance herewith.

The judgment appealed from is reversed and it is adjudged that the portion to
be allotted to Jose Tad-Y is the third constituting the short legitime in full
ownership, and the other third available for betterment in naked ownership; to
Maria Tad-Y, one-half of the free third in full ownership and the other half of
this third in naked ownership, after deducting the burial and funeral expenses;
to Rosario Esler, the usufruct of the third available for betterment; to Jose
Tad-Y the usufruct of the remaining one- half of the free third, which upon the
death of Rosario Esler shall pass to Maria Tad-Y. No special finding is made as
to costs. So ordered.

Johnson, Street, Malcolm, Villamor, Ostrand, and Romualdez,
JJ., concur.