IN RE INTERSTATE ESTATE OF THE DECEASED FRANCISCO TORDILLA. GAUDENCIA TORDILLA, PETITIONER AND APPELLEE, VS. MOISES TORDILLA, OPPONENT AND APPELLANT.

HULL, J.:


This is an appeal from a decision of the Court of
First Instance of Camarines Sur providing for the distribution of the
estate of one Francisco Tordilla, who died interstate in Naga,
Camarines Sur, on December 18, 1925, leaving as his only heirs his
widow, legitimate son, the defendant and appellant, and a recognized
natural daughter, petitioner and appellee.

It might be said by way of introduction that the
record is voluminous and that many questions of fact could have been
clearly established by direct means rather than to leave the question
in doubt by presenting only circumstantial evidence. This is especially
true as to the first and second assignments of error which read:

“I. In including in the patition that residential
lot containing 3352 square meters and more fully described as parcel
(2) in the decision (69-70 R. A.).

“II. In including ten (10) carabaos and six (6)
cattle (Item 8 and 9 in Dec. at pp. 70-71 R. A.) among the properties
partitioned and in not holding that said animals do not exist and never
came to the possession of the estate.”

In a prior proceeding between the deceased and a
third party, the third party was given a right to repurchase the land
there in question. But the fact, standing alone, does not remove the
lot from the properties left by the deceased. The fact is whether or
not the third party had exercised his option to repurchased. The fact
is whether or not the third party had exercised his option to
repurchase. The fact was well known to appellant and was easily
susceptible of definite and accurate proof. He has seen fit to leave
the record in doubt and, therefore, the finding of the trial court will
not be disturbed.

The same remarks are true as to the number of carabaos and cattle that the deceased had at the time of his death.

The contention of appellant in the third assignment
of error is that, where a certain value is stated in a deed of
donation, the value cannot be questioned when the properties are
brought into collation. This is incorrect, as article 1045 of the Civil
Code provides for the assessment of the property at its actual
valuation at the time of donation. The rectial in the deed cannot
therefore be controlling. The actual value at the time of the donation
is a question of fact which must be established by proof the same as
any other fact.

The fourth assignment of error is not well taken.
The original testimony was taken by a commissioner, and the report of
the commissioner with the evidence was stricken from the files on motion
of appellant. Thereafter the parties agreed to submit the case for the
decision of the trial court on the evidence taken by the commissioner.
Such a procedure waived the erroneous ruling on evidence by the
commissioner. The appellant should have reserved the right to introduce
additional evidence and should have reserved the right to introduce
additional evidence and should have tendered the proper evidence in the
trial court. The trial court, with much experience, and after study of
the evidence produced, held that the actual value of one of the
properties was greater than that recited in the deed of donation, and
also fixed the fruits and interest produced by property subject to
collation must be ascertained under article 1094 of the Civil Code. (See Guinguing vs.
Abuton and Abuton, 48 Phil., 144.) There is some doubt in our mind as
to the income from the donated properties. But we cannot state from the
fragmentary evidence which has been brought to our attention that the
opinion of the trial court is contrary to the weight of the evidence,
and, in case those figures are incorrect, what are the correct figures.

On the question of fact dealt with in the fifth and
sixth assignments of error, after due consideration, we have determined
to be guided by the judgment of the trial court.

The seventh, eight, and ninth assignments of error
refer to the validity of Exhibit H, a contract entered into between the
appellee and the appellant in another case and signed shortly before
the death of their father. The contract is in the nature of a
compromise and convered two items, namely, first, the support of the
natural daughter which the brother agreed to assume for one year and,
second, a proposed division of their future inheritance upon the death
of their father. It assumed that appellant has complied with his terms
of the contract, and the father died before the obligation of the
brother terminated. The second portion of the contract Exhibit H
clearly related to the anticipated future inheritance and, therefore,
is null and void under the provisions of article 1271 of the Civil Code
which reads: