IN RE WILL OF IGNACIO ABUTON Y PONCOL, DECEASED. TEODORA GUINGUING, PETITIONER AND APPELLEE, VS. AGAPITO ABUTON AND CALIXTO ABUTON, OPPONENTS AND APPELLANTS.

In the course of the administration of the estate of Ignacio Abuton,
deceased, resident of Oroquieta, Province of Misamis, it appeared that
the deceased died testate on March 8, 1916, leaving two sets of
children by two different wives, the first of whom was Dionisia Olarte,
who died about twenty years ago, and by whom the deceased had twelve
children, three of whom died without issue. The second wife was Teodora
Guinguing, to whom the testator was married on July 14, 1906, and by
whom he had four children, all still living. A will of the testator,
executed on November 25, 1914, was probated in court and allowed on
October 9, 1917 (Exhibit A); and one Gabriel Binaoro was appointed
administrator. In due course of proceeding Binaoro submitted to the
court an inventory of the properties belonging to the deceased at the
time of his death. In this inventory he included only the lands which
the testator had devised to the children of the second marriage,
omitting other lands possessed by him at the time of his death and
which were claimed by the children of the first marriage as having been
derived from, their mother. Accordingly, on March 14, 1922, Teodora
Guinguing, in representation of herself and her four minor children,
presented a motion in court, asking that the administrator be required
to amend his inventory and to include therein all property pertaining
to the conjugal partnership of Ignacio Abuton and Dionisia Olarte,
including property actually in the hands of his children by her which
(the motion alleged) had been delivered to said children as an
advancement. The purpose of the motion was to force the first set of
children to bring into collation the properties that had been received
by them, in conformity with article 1035 of the Civil Code; and the
motion was based partly on the supposition that Ignacio Abuton had
never in fact effected a liquidation of the conjugal property
pertaining to himself and Dionisia Olarte. This motion was formally
opposed by two of the children of the first marriage, namely, Agapito
and Calixto Abuton y Olarte.

Upon hearing the proof the
trial judge found that no property had been acquired by the testator
during his second marriage and that the administration was concerned
only with property that had been acquired before the death of the first
wife. The trial judge further found that after the death of the first
wife the testator had liquidated the ganancial estate pertaining to
them and had divided among the first set of children all of the
property that pertained to the first wife in the division, with the
exception of the home-place in the poblacion, in which the
testator had continued to reside till death. The share pertaining to
the testator in said division was, so the court found, retained in his
own hands; and this property constituted the proper subject matter of
the present administration proceedings. Accordingly an order was
entered to the effect that the administrator should include in the
inventory of the estate of Agapito Abuton all of the property of which
the testator was possessed at the time of his death. From this order
the two opponents of the motion appealed.

We entertain
serious doubts as to whether the order in question here was really such
a final order as to be appealable under Section 783 of the Code of
Civil Procedure, since the making of the inventory is necessarily of a
preliminary and provisional nature, and the improper inclusion of
property therein or the improper omission of property therefrom is not
absolutely decisive of the rights of persons in interest. But, passing
this point without decision, we proceed to consider whether there is
any merit in the errors assigned to the order which is the subject of
the appeal.

The contention made in the first assignment of
error, to the effect that an order of the character of that appealed
from cannot be made by a court without formal notice being given to all
persons in interest, in the same manner as if a new action had been
begun, is clearly untenable, since all the heirs are already virtually
represented in the administration and are bound by all proper orders
made therein, so far and so far only as such orders have legal effect.
This is not inconsistent with the proposition that contested claims of
ownership between the administrator and third persons should be tried
in separate proceedings, which is entirely true. The question here is
merely between some of the heirs and the administrator, as
representative of all persons in interest. Besides, it should be
pointed out, the inclusion of a property in the inventory does not
deprive the occupant of possession; and if it is finally determined
that the property has been properly included in the estate, the
occupant heir is liable for the fruits and interest only from the date
when the succession was opened (art. 1049, Civ. Code). The provisions
of the Civil Code with reference to collation clearly contemplate that
disputes between heirs with respect to the obligation to collate may be
determined in the course of the administration proceedings.

The second and third assignments are directed to the supposed errors of
the court in having based its findings as to the property belonging to
the estate of Agapito Abuton in part upon the recitals of his legalized
will (Exhibit A) and in part upon the recitals of a previous will
(Exhibit 1), which had been superseded by the last. This older will
appears to have been produced by the representatives of the first set
of children in the proceedings for the probate of the will which was
admitted, and was attached to that expediente. It is said in appellants’ brief that this document was not introduced in evidence at the hearing of the present controversy.

It was not error, in our opinion, for the trial court to look to the
recitals of the legalized will for the purpose of determining prima facie
whether a certain piece of property should or should not be included in
the inventory without prejudice of course to any person who may have an
adverse title to dispute the point of ownership. The use made of the
superseded will (Exhibit 1) in the appealed order is of more
questionable propriety, but we are of the opinion that the facts stated
by the court can be sufficiently made out from the other evidence
submitted at the hearing.

As we gather from the record, the
crux of the controversy consists in the fact that among the properties
remaining in possession of Ignacio Abuton at the time of his death was
a piece of land covered by a composition title No. 11658, issued in
1894 in the name of Dionisia Olarte. At the same time that this title
was issued, Agapito Abuton procured two other titles, Nos. 11651 and
11654, covering adjacent properties to be issued in his own name. From
the circumstance that title No. 11658 was issued in the name of
Dionisia Olarte the opponents appear to believe that this land was her
particular property and should now vest exclusively in her heirs. This
conclusion is erroneous. There is nothing to show that the land covered
by title No. 11658 was not acquired by the spouses during their
marriage, and the circumstance that the title was taken in the name of
the wife does not defeat its presumed character as ganancial property.
Therefore, in liquidating the ganancial property of the first marriage
it was within the power of the surviving husband “to assign other
property to the first set of children as their participation in the
estate of their mother and to retain in his own hands the property for
which a composition title had been issued in the name of the wife.

Upon the whole we are unable to discover any reversible error in the
appealed order, and the same is accordingly affirmed, with costs. So
ordered.

Avanceña, C. J., Malcolm, Villamor, Ostrand, Johns, and Villa-Real, JJ., concur.

Romualdez, J., concurring: I concur, without prejudice to the right of the appellants over the properties in question.