ESPERANZA DIMALIWAT, CANDIDA MORENO, AND MANUEL MORENO, APPLICANTS AND APPELLANTS, VS. DOMINGA ASUNCION ET AL., OPPONENTS. VICENTA DIMALIWAT, APPELLANT.

This is an appeal by both parties from a
decision of the Court of First Instance of Nueva Ecija, the dispositive
part of which is as follows:

“In accordance with the conclusions hereinbefore stated, the court:

“1. Orders the party-applicant to amend the plan of lot No. 3, Psu No. 18817, sheet No. 1, by segregating therefrom (a)
the portion marked with the words ‘conflict with lot No. 1, II-Heirs of
Valeriano Moreno’, which portion has been finally decided and decreed
as part of a piece of land belonging to the herein applicant, and (b)
another portion marked with the words ‘conflict with lot No. 2,
11-11119, Cipriano Bocoboc’ as to which Juana Dimaliwat filed an
opposition, which is hereby sustained in part.

“2. Orders, likewise, that after the segregation of the two
portions mentioned in the preceding paragraph, the amended plan of lot
No. 3 to be submitted, be subdivided into three (3) portions, to be
marked Nos. 3-A, 3-B and 3-C, as follows: the northeast portion of lot
No. 3, purchased by the applicant from Luisa Carballo, to be designated
as lot No. 3-A; the portion situated on the southwest of said lot No.
3, purchased from Alejandra Lavandan and from the Soro family, as lot
No. 3-B; and the remaining portion of 139 hectares, 80 ares and 46
centares, more or less, in area and situated between lots Nos. 3-A and
3-B, as lot No. 3-C.

“3. Decrees the registration of the property mentioned in the
preceding paragraph as follows: Lot No. 3-A in favor of Esperanza
Dimaliwat, widow; the undivided one-half of lot No. 3-B in favor of
Esperanza Dimaliwat, widow, and the remaining undivided one-half in
equal shares in favor of her children, Candida Moreno and Manuel
Moreno, both single and of age; one-half of lot No. 3-C in favor of
Esperanza Dimaliwat, widow, and the other half in favor of the estate
of the deceased Eustacio Dimaliwat, represented by the judicial
administratrix, Vicenta Dimaliwat, the whole of lot No. 3-C subject to
a mortgage lien in favor of the opponent, Lucia Matias, viuda de Tinio,
in the sum of P9,000, with interest thereon at the rate of 12 per cent
per annum from July 30, 1930, payable on April 30, 1932; the undivided
half of lots Nos. 4, 5 and 6 of plan Psu No. 18817, sheet No. 1, in
favor of Esperanza Dimaliwat, widow, and the other undivided one-half
in equal shares in favor of her children, Candida Moreno and Manuel
Moreno, both single and of legal age; the undivided half of lot No. 8
of plan Psu No. 18817, sheet No. 2, together with the improvements
thereon in favor of Esperanza Dimaliwat, widow, and the other undivided
one-half with the improvements thereon in favor of the estate of the
deceased Eustacio Dimaliwat, represented by the judicial
administratrix, Vicenta Dimaliwat.

“When this judgment has become final and the amended plan of lot
No. 3 has been presented, as herein ordered, let the final decrees be
issued in accordance with the law.”

The petitioners make the following assignments of error:

“I. The trial court erred in not declaring the
question of the authenticity of the signature of the priest Teofilo
Dimaliwat in Exhibit 2 as res judicata by reason of the judgment rendered by this court in the case of Vicenta Dimaliwat vs.
Esperanza Dimaliwat, G. R. No. 33590, which sustained the validity of
the assignment of lot No. 3-C in question by said priest in favor of
the appellant Esperanza Dimaliwat;

“II. The trial court
erred in not holding the afore-mentioned judgment of this court as a
conclusive adjudication of the rights of the parties therein, who are
also the same parties in this case, with respect to lot No. 3-C; and

“III. The trial court erred in not declaring the applicant and
appellant Esperanza Dimaliwat the lawful heiress to lot No. 3-C in
question regardless of the deed of assignment Exhibit 2 made in her
favor of said lot.”

Vicenta Dimaliwat, one of the opponents and administratrix of the estate of Eustacio Dimaliwat, assigns the following errors:

“I. The lower court erred in holding that the
one-half of lot 3-C decreed in favor of the testate estate of the
deceased Eustacio Dimaliwat represented by his judicial administratrix
Vicenta Dimaliwat be subject to the mortgage encumbrance in favor of
Lucia Matias, widow of Tinio, in the sum of P9,000 with 12 per cent
interest from July 30, 1930 to April 30, 1932.

“II. The
lower court also erred in adjudging lots 4, 5 and 6 of plan Psu-No,
18817 to petitioners Esperanza Dimaliwat and Candida Moreno and Manuel
Moreno in equal parts between the former and the two last named
persons; and in not holding that said lots 4, 5 and 6 of plan Psu-No.
18817 are the property of oppositor, testate estate of the deceased
Eustacio Dimaliwat represented by her administratrix Vicenta Dimaliwat.

“III.
The lower court further erred in giving more weight and credit to the
testimony of petitioners’ witnesses rather than that of oppositor
administratrix Vicenta Dimaliwat’s witnesses and her exhibits.”

The appeal of the petitioners is confined to lot No. 3-C, which the
lower court ordered to be registered in favor of the estate of the
deceased Eustacio Dimaliwat, subject together with lots Nos. 3-A and
3-B to a mortgage in favor of Lucia Matias, viuda de Tinio, for the sum
of P9,000, with interest at 12 per cent a year from July 30, 1930
payable April 30, 1932. The appeal of Vicenta Dimaliwat respecting lot
No. 3-C relates only to that part of the decision which subjects this
lot to the mortgage in favor of Lucia Matias.

After considering the arguments of counsel, we are of the opinion
that the petitioners’ third assignment of error is well taken. Eustacio
Dimaliwat, the former owner of lot No. 3-C, was married three times.
The children by his first wife were Esperanza Dimaliwat and Teofilo
Dimaliwat. He had no children by his second wife. Vicenta Dimaliwat,
Vicentica Dimaliwat, and Josefina Dimaliwat are the children of
Eustacio Dimaliwat by his third wife.

Esperanza Dimaliwat and Teofilo Dimaliwat, the children of the
first marriage, acquired title to lot No. 3-C by adverse possession.
One-half of this lot belonged to Teofilo Dimaliwat. He died before his
father and without leaving any descendants. One-half of lot No. 3-C was
therefore inherited by Eustacio Dimaliwat from Teofilo Dimaliwat, but
when Eustacio Dimaliwat remarried this property became subject to a
reservation in favor of the children of the first marriage in
accordance with the following provisions of the Civil Code:

(“ART. 968. Ademas de la reserva impuesta en el
articulo 811, el viudo o viuda que pase a segundo matrimonio estara
obligado a reservar a los hijos y descendientes del primero la
propiedad de todos los bienes que haya adquirido de su difunto consorte
por testamento, por sucesion intestada, donacion u otro cualquier
titulo lucrativo, pero no su mitad de ganancias.”)

“ART.
968. Eeside the reservation imposed by article 811, any widower or
widow who contracts a second marriage shall be obliged to reserve for
the children and descendants of the former marriage the ownership of
all the property he or she may have acquired from the deceased spouse
by will, intestate succession, gift, or by any other gratuitous title,
but not his or her half of the profits of the conjugal partnership.”

(“ART. 969. La disposicion del articulo anterior es aplicable a los
bienes que, por los titulos en el expresados, haya adquirido el viudo o
viuda de cualquiera de los hijos de su primer matrimonio, y los que
haya habido de los parientes del difunto por consideracion a este.”)

“ART. 969. The provisions of the next preceding article shall be
applicable to any property which may have been acquired in any of the
manners mentioned therein by the widower or widow from any of the
children of the first marriage or which any relative of the deceased
spouse may have given such widow or widower out of consideration for
the former.”

As Esperanza Dimaliwat was the only remaining child of the first
marriage, Eustacio Dimaliwat was obliged to reserve for her the
ownership of the property now in question which he had inherited from
her brother, Teofilo Dimaliwat.

“Que la obligacitfn de reservar impuesta en los articulos 968 y 969
del Codigo Civil, al viudo o viuda que pase a segundas nupcias en los
casos que expresa, es absoluta, sin distincion alguna, por lo tocante
al momento en que el sobreviviente haya adquirido los bienes objeto de
tal gravamen, puesto que por su sola procedencia estan sometidos al
mismo, sin que cese tal obligacion mas que cuando se dan las
circunstancias de los articulos 970 y 971 del propio Cuerpo legal,
tanto mas cuanto que nada indica que aquellos se hayan propuesto
reformar, en cuanto a ese particular, nuestra legislacion tradicional y
la jurisprudencia a su tenor establecida.” (Decision of the Supreme
Court of Spain of February 25, 1914.)

Vicenta Dimaliwat contends that Esperanza Dimaliwat has no right to
claim the ownership of the property in question to the exclusion of the
children of the third marriage, under the foregoing provisions of the
Civil Code, because the case was not tried on that theory in the lower
court. We find no merit in that contention. The decisions cited are not
in point Articles 968 and 969 of the Civil Code are rules of
substantive law, and if they are applicable to the facts of this case
they must be given effect. The attorneys for Vicenta Dimaliwat
maintain, however, that even if Esperanza Dimaliwat is not estopped
from now invoking the benefit of said articles, the facts of the case
take it out of the principle of the reserva viudal for the
following reasons: Lot No. 3-C was donated by Eustacio Dimaliwat to
Esperanza and Teofilo Dimaliwat in equal shares in 1905; Eustacio
Dimaliwat executed a deed of sale in favor of Teofilo Dimaliwat on June
16, 1914 (Exhibit 3) ; Teofilo Dimaliwat conveyed the land to
Esperanza, Vicenta, Vicentica, and Josefina Dimaliwat on June 13, 1927
(Exhibit 4); the same land, together with other parcels, was the
subject of the will of Eustacio Dimaliwat, dated October 27, 1928,
which was probated (Exhibit 16); and Esperanza Dimaliwat renounced
whatever right she had to claim the land under the doctrine of the
reserva vivdal by means of Exhibit 18, or the offer made by her to the
children of the third marriage in August, 1928.

Let us examine the reasons advanced in support of the contention
that the facts of the case render articles 968 and 969 inapplicable.

As we have already stated, Esperanza and Teofilo Dimaliwat acquired
title to lot No. 3-C by adverse possession. That was settled by the
decision in case No. 5070 of the Court of First Instance of Nueva
Ecija, which was affirmed by this court (Dimaliwat vs.
Dimaliwat, 55 Phil., 673). Esperanza Dimaliwat claimed in her answer to
be the owner of the land through adverse possession, and both the lower
court and this court found that Esperanza and Teofilo Dimaliwat had
acquired title to the land by acquisitive prescription. This court
said: “They therefore acquired the land by prescription if not by the
donation because of the alleged lack of formal acceptance, although
under the circumstances surrounding this donation, we think that the
formality of acceptance is not necessary for its validity. (Article 622
of the Civil Code).”

It is true that in the decision of this court the opinion is
expressed that the donation was valid, notwithstanding the fact that it
was not accepted in the manner prescribed by law, but that was not the
issue raised by Esperanza Dimaliwat’s answer. She claimed the land
through adverse possession, both in her original and her amended answer.

Furthermore, if Teofilo Dimaliwat had acquired title to the
property now in question by donation from his father, Eustacio
Dimaliwat, the attorneys for Vicenta Dimaliwat have cited no authority
to sustain their contention that in that case Eustacio Dimaliwat was
not obliged to reserve the property for the children of the first
marriage.

On the other hand, Manresa, referring to the articles in question, says:

“El Codigo, en evitacion de toda duda, habla en el articulo 968 de
lo adquirido por testamento, sucesion intestada, donacion u otro
cualquier titulo lucrativo; en el 969, al referirse a bienes
procedentes de log hijos, lo hace a los mismos titulos expresados en el
articulo anterior, y al referirse a los parientes del difunto, a los
bienes que el viuda o viuda haya habido de los mismos, por
consideracion al cOnyuge difunto.

“En la frase haya habido, debemos ver, como nemos expuesto
en otro lugar, una repetition de lo dispuesto anteriormente en dichos
articulos. No es todo lo adquirido o habido de los parientes, sino solo
lo que se adquiera por titulo lucrativo, y precisamente por consideracion al difunto.

“Han desaparecido las multiples cuestiones que existian en lo
antiguo sobre esta materia. Verifiquese la adquisicion por voluntad del
transmitente o por ministerio de la ley, y sea la que fuere la
procedencia anterior de los bienes, el conyuge viudo ha de reservar
cuanto hubiese adquirido por titulo lucrativo de sus hijos del primer
matrimonio, del conyuge premuerto, o de los parientes de este y por
consideracion al mismo. Solo se atiende a que el viudo disfruta bienes
que eran de su esposa o de sus hijos y los disfruta gratuitamente, por
lo que es mas justo que vuelvan a esos hijos, que no que pasen a log
descendientes de otra union, pues la ley supone que tal debio ser la
voluntad del transmitente.

“Son, pues, reservables los bienes adquiridos por titulo de
legitima, lo mismo que los dejados como herencia o legado de la parte
de libre disposicion, y los adquiridos por donation relacionada o no
con el matrimonio, siempre que se trate de propias donaciones, teniendo
solo en cuenta en las remuneratorias o en las en que se impusiere
alguna carga, la parte en que excediere el beneficio al servicio o
gravamen. Y son reservables los bienes procedentes de una vinculacion,
como ya declaro, antes1 de regir el Codigo, la sentencia de 26 de
octubre de 1858, y los procedentes de un modo remoto o indirecto del
mismo c6nyuge obligado a la reserva, tales como los que hubiese donado
o entregado al hijo de quien despues directamente los adquiere por
titulo lucrativo, y, por tanto, los que so devuelven al ascendiente en
el caso del articulo 812. Es lucrativo todo acto aparente- mente
oneroso que se pruebe que fue en realidad gratuito.” (Vol. 7, pp.
259-261, 5th edition.)

The other reasons advanced for holding that the property in
question is not subject to articles 968 and 969 of the Civil Code are
clearly without merit. If Teofilo Dimaliwat had acquired title to the
land by adverse possession from 1905 or by reason of the donation made
by his father in that year, his title to the land was unaffected by the
deed of sale executed by Eustacio Dimaliwat in 1914 or by his will made
in 1928.

With respect to the deed of sale (Exhibit 4) executed by Teofilo
Dimaliwat on June 13, 1927 in favor of Esperanza, Vicenta, Vicentica,
and Josefina Dimaliwat, we are of the opinion that this instrument
never became effective, and cannot now be invoked by Vicenta Dimaliwat
and the other heirs of the third marriage. In the first place, this
instrument purports to convey the whole property to the vendees, when
as a matter of fact Teofilo Dimaliwat was the owner of only one-half of
it. In the second place it is a conditional conveyance. The vendees
were to assume the debt of P8,000 or P9,000, for which the land had
been mortgaged to Casimiro Tinio. It does not appear, however, that any
of the vendees accepted the conveyance. Two of them, Vicentica and
Josefina, were minors at that time. This document was not presented by
Vicenta Dimaliwat in the trial of case No. 5070. It was of course
entirely inconsistent with her contention in that case, and it is
likewise incompatible with her theory in the present case, which is
that the property was inherited by Eustacio Dimaliwat from Teofilo
Dimaliwat, and now forms a part of the estate left by him.

As to Exhibit 18, which, it is contended, amounts to a waiver by
Esperanza Dimaliwat of her rights to the reservation of the property in
question, it is sufficient to say that this proposed partition was
never accepted by the parties. No fact has been adduced that brings the
case within the provisions of article 970, which is as follows:

“The obligation to reserve shall cease when the children of the
former marriage who may have a right to such property shall expressly
renounce it on coming of age, or when such property has been given or
left by the children to their father or mother, with the knowledge that
he or she had married a second time.” Our conclusion is that Eustacio
Dimaliwat was obliged to reserve the land in question for Esperanza
Dimaliwat, the only surviving child of the first marriage; that she did
not renounce her right thereto, but became the owner of said property
by operation of law to the exclusion of the children of the third
marriage. This finding makes it unnecessary for us to consider the
other assignments of error as to lot No. 3-C.

As to Vicenta Dimaliwat’s assignments of error respecting lots Nos.
4, 5, and 6, which raise only questions of fact depending chiefly on
the credibility of the witnesses, we perceive no reason for disturbing
the following conclusions of the lower court:

“Vicenta Dimaliwat, in the capacity in which she appeared at the
trial, also objects with respect to lots Nos. 4, 5, and 6, on the
ground that said lots belonged to Eustacio Dimaliwat, presenting as a
part of her evidence the possessory information, Exhibit 17-Vicenta
Dimaliwat, said land being designated therein as the second parcel. The
description of this second parcel does not agree with that of lots Nos.
4, 5, and 6, even considering them as a single parcel of land. In said
possessory information, Exhibit 17, it appears that this land is
bounded on the north by Cabancalan creek and on the south by Corriente
creek. Lots Nos. 4, 5 and 6 are not bounded by Cabancalan creek.
Corriente creek is not to the south of these lots, but directly north
of them. To the south of these lots is the Jueves creek, which is not
mentioned in the description stated in the possessory information,
Exhibit 17. Furthermore, it is proved that Esperanza Dimaliwat has been
in possession of these lots even during the lifetime of Eustacio
Dimaliwat, enjoying exclusively the products thereof.

“If it is true that said lands belonged to Eustacio Dimaliwat, it
is not understood why said Eustacio Dimaliwat did not include them in
civil case No. 5070, in which he was the plaintiff and Esperanza
Dimaliwat the defendant.

“On the other hand, the applicant has proved conclusively that she
bought these lands from Florentino Bocoboc, years before the revolution
of 1896, and since then has possessed them as the owner thereof.

“The opposition, therefore, of Vicenta Dimaliwat with respect to lots Nos. 4, 5, and 6 should be denied.”

Esperanza Dimaliwat and her witnesses impress us as being entitled
to more credit than the witnesses for the opponent-appellant, some of
whom at least were not in a position to know the facts as to which they
testified. The evidence in our opinion sustains the findings of the
trial judge. If Esperanza Dimaliwat did not purchase the lots in
question, she acquired title to them by adverse, possession. The
contention that she was merely administering the land for her father is
not proved.

For the foregoing reasons, the decision appealed from is reversed
as to lot No. 3-C, and it is ordered that said lot be registered in the
name of Esperanza Dimaliwat. In all other respects the decision of the
lower court is affirmed, with the costs of this instance against the
opponent-appellant.

Street, Abad Santos, Butte, and Diaz, JJ., concur.