INTESTATE ESTATE OF MARIA BORROMEO, DECEASED. PILAR TELL, PETITIONER AND APPELLEE, VS. CARMEN TELL AND MERCEDES DIAZ TELL, OPPONENTS AND APPELLANTS.

On
September 27, 1920, Pilar Tell, the appellee, filed a petition with the
Court of First Instance of Albay, alleging that on September 10, 1920,
Dña. Maria Borromeo died in the municipality of Ligao, Province of
Albay, leaving money, jewels and personal and real property, situated
in the municipalities of Ligao, Oas, Polangui and Daraga, of the
approximate value of P20,000. The petitioner also alleged that the
deceased Dña. Maria Borromeo had not executed any will, and prayed that
she be appointed special administratrix of the estate of the deceased
Dña. Maria Borromeo, upon the giving of the proper bond, and that after
the usual publications and proceedings, she be appointed regular
administratrix of the estate of the deceased Dña. Maria Borromeo.

The appointment of the petitioner Pilar Tell was opposed by Carmen Tell
and her niece Mercedes Diaz Tell, legitimate daughter and
granddaughter, respectively, of the deceased Dña. Maria Borromeo. And
for the reasons set forth in their motion dated October 29, 1920, they
prayed for the appointment of another person from among the parties,
other than Carmen Tell, and also for the appointment of a guardian for
the minor Mercedes Diaz Tell.

By an order dated October 27,
1920, the court, at the proposal and by agreement of both parties,
appointed Jesus Alsua as special administrator of the estate left by
Dña. Maria Borromeo, fixing his bond at the sum of P2,000.

After the lapse of about two years, that is to say, on August 12, 1922,
the court in view of the evidence introduced by the parties declared
Pilar and Carmen Tell, both of age, the only heirs of the deceased Dña.
Maria Borromeo, together with the minor Mercedes Diaz Tell in
representation of her deceased mother Mercedes Tell, who was also a
daughter of Dña. Maria Borromeo, and entitled to inherit share and
share alike the property left by the deceased; and upon the suggestion
of the attorneys of the parties in interest, Attorney Ambrosio E.
Calleja was appointed distributing commissioner, having presented a
tentative partition on September 20, 1922.

For the reasons
set forth in her motion dated February 13, 1923, Pilar Tell opposed the
approval of the tentative partition, and prayed that after the filing
by the administrator of a new and complete inventory of the property of
the deceased, new commissioners be appointed in accordance with
sections 753 and 762 of the Code of Civil Procedure to make the
partition.

On the other hand, Carmen Tell, for herself and
in behalf of the minor Mercedes Diaz Tell, insisted on the approval of
the tentative partition filed by the commissioner Mr. Ambrosio E.
Calleja, praying that after the delivery of the property to each of the
interested parties, this proceeding be held terminated.

On
August 11, 1923, and as proposed by the parties, the lower court
appointed new commissioners to make the partition, namely, Messrs.
Macario Loveria, Leopoldo Aquende and Bernardino Reniva, whom it
instructed about the manner in which they should proceed with the
distribution of the property of the deceased. In the order, the court,
in giving instructions to said commissioners, says:

“After
having been sworn, they shall proceed to make the division of the
estate left by the deceased Dña. Maria Borromeo, according to the new
inventory filed by the administrator, Mr. Jesus Alsua, on March 5,
1928, with respect to the realties; as to the cattle and money, if
there is any, in accordance with the inventory dated December 14, 1920,
which partition shall be made in three lots equitably equal, not only
as to their area, but also as to their present assessed value; and as
to the personal properties, according to the value fixed by the
commissioners of appraisal in their report of March 24, 1922. Provided
that after making the division of the estate into three parts, the
partitioning committee should not award any part to any of the three
heirs, as said awarding shall be made by lot in open court, pursuant to
the agreement of the parties. Provided, further, that said
commissioners shall file their report with the court within 30 days
from this date, and they are required to qualify as such commissioners
within 5 days from receipt hereof.”

As
shown on page 58 of the bill of exceptions, the partitioning
commissioner, Leopoldo Aquende proposed by Carmen Tell, resigned from
his office, without said heir having found another person to substitute
him. On the other hand, the partitioning commissioner Macario Loveria,
proposed by Pilar Tell, also declined the office, and in his place this
heiress proposed Cipriano Viterio. The new commissioners filed a new
tentative partition. Carmen Tell in her own behalf and that of her ward
Mercedes Diaz Tell moved for the disapproval of the new proposed
partition, and that in lieu thereof the tentative partition presented
by the commissioner Mr. Celleja be approved.

On August 23, 1924, the lower court entered the following order:

“When
this case was called for hearing upon the report of the partitioning
committee of July 5, 1924, wherein is set forth the proposed physical
division of the two parcels of land known as ‘tax No. 7936’ and ‘tax
No. 14481,’ and the adjudication by lot among the heirs of the parts
into which the said two parcels were divided in accordance with the
order of this court of April 30, 1924, the heiress Pilar Tell appeared
with her attorneys Messrs. Domingo Imperial and Mariano Locsin, Carmen
Tell not having appeared for herself and as guardian ad litem
of the other minor heir, Mercedes Diaz Tell, either personally or
through an attorney to represent them. Thereupon Attorney Domingo
Imperial after making it of record that said heirs, Carmen Tell and
Mercedes Diaz Tell, had been duly notified of the day of this hearing,
asked the court to proceed with the hearing upon the additional report
presented by the partitioning committee for its due approval, as well
as the awarding by lot of the portions mentioned in said report;

“It
appearing from the record that the heirs, Carmen Tell and Mercedes Diaz
Tell, the latter duly represented by the former in her capacity as
guardian ad litem, were duly notified of the day of this hearing without having appeared either personally or through counsel;

“It
also appearing from the record that under the date of August 22, 1924,
the attorney, Mr. Vicente Roco, on behalf of the heirs Carmen Tell and
Mercedes Diaz Tell, filed an opposition to the report of said
partitioning committee, now under the consideration of this court, in
the last paragraph of which they expressed in advance their exception
to, and intention to appeal to the Supreme Court from, any order that
might be rendered upon the result of the new drawing of lots and the
approval of said additional report, which fact evidently shows the
intention of said heirs, Carmen Tell and Mercedes Tell, not to appear
at the hearing of today; and it also appearing that the physical
division of the two parcels aforementioned, contained in the report of
July 5, 1924, filed by the partitioning committee, was made in
accordance with the instructions of this court in the order dated April
30, 1924, and said physical division appearing to be equitable as
graphically outlined in the two sketches which form a part of said
report;

“Said report is hereby approved with the proposed
physical division of the aforesaid two parcels ‘tax No. 7936’ and ‘tax
No. 14481’ of the inventory, and it is ordered that said three portions
mentioned in said report be awarded by lot among the heirs, Carmen
Tell, Pilar Tell and Mercedes Diaz Tell, and to that end Messrs.
Doroteo Amador and Simeon Loria, provincial fiscal and provincial
deputy sheriff, respectively, are designated to perform the drawing of
lots, and the clerk is directed to prepare six equal slips of paper in
three of which the names of the three heirs are to be written, and in
the other three the numbers 1, 2 and 3, which represent respectively
the three lots described in the report.

“The drawing of
lots haying been made in open court, the result was that lot No. 3 went
to the heir Carmen Tell, lot No. 2 to the heir Mercedes Diaz Tell, and
lot No. 1 to the heir Pilar Tell.

“For the foregoing, lot
No. 3 of the report of July 5, 1924, now under the consideration of the
court, is awarded to the heir Carmen Tell, lot No. 2 to the minor
Mercedes Diaz Tell, and lot No. 1 to the heir Pilar Tell.

“It
is ordered that the administrator deliver to each heiress all the
property pertaining to her, according to the order of this court dated
April 30, 1924, in connection herewith.

“It is, further,
ordered that the administrator render a final account of the cash
pertaining to the estate that is in his possession and of all the
products of the property Of the estate that are not included in the
partition made, as weir as of all the expenses he may have incurred in
the administration and which are not included in the preceding
accounts, stating also the amount or amounts he may have paid to any
heir by order of this court on account of her share, in order that the
same may properly be settled.

“Let the exception of the heiress, Carmen Tell, for herself and as guardian ad litem
of the minor Mercedes Diaz Tell, to this order be noted in the record,
as well as her notice of appeal to the Supreme Court, for which appeal
the bond to be filed by her is fixed at P200.”

The heirs, Carmen Tell and Mercedes Diaz Tell, entered an exception to
all the proceedings in the lower court and took an appeal by bill of
exceptions.

At the hearing of this case Attorney Felipe
Canillas presented oral argument in behalf of the appellants and the
only important question raised in his argument has reference to the
nullity of the proceedings for lack of legal representation of the
minor Mercedes Diaz Tell.

We have examined the record before
us and have found that the appellant Carmen Tell, in all the various
pleadings filed by her in the court below, has appeared as tutor or
guardian ad litem of the minor Mercedes Diaz Tell, and in the
order of the court dated April 30, 1924, it appears that Carmen Tell
was appointed guardian of the minor Mercedes Diaz Tell and as such was
authorized by the court to withdraw from the Postal Savings Bank the
sum of P500 to defray the expenses of the education of said minor in a
college. And in the same order dated August 23, 1924, it also appears
that Mercedes Diaz Tell was duly represented by Carmen Tell in her
capacity as tutor or guardian ad litem. In view of the facts
appearing from the record, we are persuaded that the minor heiress,
Mercedes Diaz Tell, was legally represented in this proceeding. And
while it is true that the bill of exceptions contains no copy of the
appointment of Carmen Tell as tutor or guardian ad litem, yet there can be no doubt that the court below has regarded Carmen Tell as tutor or guardian ad litem of the minor Mercedes Diaz Tell in this proceeding.

In the brief filed by appellants’ counsel, error is assigned to the
failure of the court to proceed in accordance with section 187 of the
Code of Civil Procedure. This section refers to the sale of the
property in case it is shown that it cannot be divided without serious
inconvenience to the interested parties. But in the instant case there
is no question but that the property could not have been divided
without serious inconvenience to the parties. The objection of the
appellants is based chiefly on the manner in which the property was
divided. As stated in the record, the partitioning commissioners were
instructed as to how they should divide into three lots equitably equal
the estate of the deceased. The personal and real property and cattle
of the estate having been divided into three lots equitably equal, the
parties agreed, as appears in the order of the lower court, dated
August 11, 1923, that the awarding of said portions should be made by
lot in open court.

If the parties have agreed to this manner
of awarding, as is the fact, we cannot see how the lower court could
have committed any error in approving said agreement, which probably
had been adopted to avoid possible difficulties in the selection of the
specific lot for each determinate heir. Counsel for appellants intimate
in his brief that there was no such agreement; but it appears in the
order of August 11, 1923, that the parties have agreed upon the manner
in which the awarding should be made.

Section 184 of the
Code of Civil Procedure provides that when the interested parties
cannot agree upon the partition, the court shall appoint three
judicious and disinterested landowners as commissioners to make the
partition. This section is among those relating to the partition of
real property in an action of partition, but as a rule of procedure, we
think that it is equally applicable to a case of partition between
coheirs. Indeed, section 762 of the Code of Civil Procedure provides
that upon the filing of a petition for partition, the court shall
appoint a committee to make the partition; and the latter’s
proceedings, as well as those of the court, after said committee has
filed its report, shall be those provided by this Code for the
partition of real property by action, that is, the partition of real
property provided in section 181 and the following of the same Code of
Civil Procedure.

As to the orders of the lower court
assigned as errors in the brief of the appellants, suffice it to say
that it was within the discretion of the court to make the orders it
deemed fit in connection with the appointment of commissioners of
partition, and as no abuse of discretion has been shown, said orders
cannot be altered on appeal.

Another of the errors assigned
by the appellants is that the trial court failed to order the parties
to introduce evidence in support of or against the second proposed
partition. This assignment of error is of no importance, for it appears
from the order of May 2, 1924, that the attorneys for both parties have
agreed that the new commissioners of partition should be instructed by
the court (and it was so stated in the order of August 11, 1923) to
proceed with the partition of the real property according to the new
inventory, containing an estimate of the property, presented by the
administrator, Mr. Jesus Alsua, and dated March 5, 1923; and of the
cattle and money, according to the inventory of December 14, 1920, the
value of the real property to be taken into account being that fixed by
the committee of appraisal in their report of March 24, 1922.

If the tentative partition, submitted to the court for approval, was
made in conformity with the agreement of the parties and the
instructions of the court, is in fact it was, according to the
aforesaid order of March 2, 1924, there was no need of any evidence,
inasmuch as the appellants do not claim that the partition was effected
in violation of the agreement of the parties and the instructions of
the court.

For all of the foregoing, the order of the lower
court approving the partition and award to the parties in interest made
by the commissioners must be, as is hereby affirmed with the costs
against the appellants. So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.