FAUSTINA UDARBE ET AL., PLAINTIFFS AND APPELLANTS, VS. MARCIANA JURADO ET AL., DEFENDANTS AND APPELLEES.

The plaintiffs herein brought this action in the Court of First
Instance of Ilocos Sur to obtain the partition of 38 parcels of land
situated in the said province, and to compel the defendants as well as
those persons who are similarly situated, to bring to collation the
lands which they received from their predecessor in interest in the
form of donations inter vivos and propter nuptias, together with the proceeds thereof.

The aforesaid plaintiffs appealed from the judgment rendered therein, the dispositive part of which reads as follows:

“Wherefore, the court renders judgment holding:

“(1)
That the properties described in Nos. 23, 24, 25, 26, 27, 28, 29, 30,
31, 32, 33, 34, 35 and 36 of paragraph 8 of the amended complaint
should be divided among the plaintiffs and the defendants Udarbe in the
following manner: One-half of the said properties corresponds in equal
parts to the children of the first marriage, named Primitivo Udarbe,
Luciana Udarbe, Monica Udarbe, Clemente Udarbe and Faustina Udarbe, and
the other half corresponds in equal parts to the aforesaid children of
the first marriage and those of the second marriage, named Inocencio
Udarbe, Fernando Udarbe, Faustino Udarbe and Carlos Udarbe.

“(2)
That the properties described in Nos. 15, 21 and 22 of paragraph 8 of
the amended complaint belong absolutely to the defendants Marciana
Jurado and her children. Wherefore, they are absolved from the
complaint with respect to the said properties.

“(3) That
the defendant Ignacia Battad is the owner of the lands described in
Nos. 37 and 38 of paragraph 8 of the amended complaint, and therefore,
she is absolved from the complaint with respect to the said properties.

“(4) Without special pronouncement as to the costs of the suit.

“(5) If within thirty days, the parties do not come to an agreement
regarding the partition and distribution of the properties subject to
division in accordance with this decision, the court shall appoint
partition commissioners whose salary and other expenses incurred in
connection therewith, shall be paid pro rata by the parties in interest. So ordered.”

The plaintiffs and the defendants are descendants of the deceased
Agustin Udarbe who contracted marriage twice and died on February 2,
1925, leaving various parcels of land, among which are the 38 parcels
described in paragraph 8 of the amended complaint. His widow is the
codefendant herein, Ignacia Battad. During his lifetime, he made
donations consisting in some of the aforesaid properties to his
children, on the occasion of their marriage. Said children, together
with their respective spouses, then took possession of the lands
donated to them and ever since have enjoyed the fruits thereof to the
exclusion of their co-heirs. The lands designated in the complaint with
Nos. 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36 remained
undivided at the death of the said deceased and belonged to the
conjugal partnership formed by him and his first wife. Therefore,
one-half thereof corresponds to the children by the first marriage, and
the other half to ail the children by both marriages. Such was the
conclusion reached by the trial court, which conclusion is not only
supported by the evidence but admitted by the parties as well.

The difficulty arose by reason of the trial court’s denial of the
plaintiffs’ motion to the effect that all the children who received
donations inter vivos submit an accounting of the portions
they had so received in order that they might be collated, together
with the value of the fruits obtained therefrom. The plaintiffs contend
that it was the duty of the court to compel the defendants to such
collation and that it erred in denying the remedy sought and in not
ordering that the complaint be amended so as its allegations may
conform to the facts found, in accordance with the provisions of
section 109 of the Code of Civil Procedure.

We are of the
opinion that this contention is untenable. In accordance with the
provisions of article 1035 of the Civil Code, it was the duty of the
plaintiffs to allege and prove that the donations received by the
defendants were inofficious in whole or in part and prejudiced the
legitime or hereditary portion to which they are entitled. In the
absence of evidence to that effect, the collation sought is untenable
for lack of ground or basis therefor. The records show that, aside from
the lands donated and those subject to distribution, there are 18
parcels more not included in the amended complaint, which are subject
to partition among the co-heirs. This circumstance constitutes an
indication strong enough to justify the belief that perhaps the
donations inter vivos in question are not inofficious, nor do
they prejudice the plaintiffs. Commenting on the significance” of the
article cited above, the commentator Manresa says the following:

“Having
established this basis, which we believe is beyond question, as well as
the fact that donations are collationable only when the heirs of the
deceased are forced heirs and when it is proven that it prejudices
their legitime, let us now find out what-amount of the estate will
serve as a basis to determine whether or not the donation in question
is inofficious, and when and how such heirs are to be reimbursed if
such an excess exists. Inasmuch as collationable as well as
non-collationable donations are governed on this point by different
rules, we shall examine them separately.” (7 Manresa Civil Code, p.
499, 1900 edition.)

“Therefore, after the donor’s death and
not before, his forced heirs shall be entitled, at their discretion, to
exercise such right, if they cannot come to an agreement, by filing an
ordinary complaint t for the amount of their respective claims.
Inasmuch as this amount can not be determined nor estimated accurately
without first liquidating the hereditary estate, hence the necessity
or, at least, the convenience of making a previous liquidation of the
inheritance, which has to serve as a basis for the complaint.” (Id., p. 502.)

We have carefully considered all the assignments of error herein and
are convinced that the judgment rendered by the trial court is in
accordance with the law, at least, the result thereof. We have
deliberately abstained from deciding the question of prescription
raised in the issue, with the full conviction that it is unnecessary to
decide this point in view of the aforestated result.

The judgment appealed from is hereby affirmed, with the costs of this instance against the appellants. So ordered.

Avanceña, C. J., Malcolm, Villa-Real, and Hull, JJ., concur.