IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED CRISPULO JAVILLO. ROSARIO OFTAS, OPPOSITOR AND APPELLANT, VS. CONSOLACION JAVILLO ET AL., PETITIONERS AND APPELLEES.

This is an appeal from an order of the Court
of First Instance of Capiz approving a project of partition of the
property belonging to the estate of the deceased Crispulo Javillo
valued at P16,000 more or less.

Crispulo Javillo died intestate on the 18th of May, 1927, in
the municipality of Sigma, Province of Capiz, Philippine Islands. On
the 25th day of July, 1927, a petition was filed in the Court of First
Instance of that province praying that an administrator of this estate
be appointed, and after hearing Santiago Andrada was named
administrator. He submitted two projects of partition. The first was
disapproved by the lower court and from that order some of the heirs
appealed to this court which appeal was dismissed.^[1] The second project of partition dated September 9, 1931, is the one now on appeal in this case.

Crispulo Javillo contracted two marriages. The first, with Ramona
Levis. To this marriage five children were born, to wit, Consolacion,
Mercedes, Caridad, Soledad and Jose Javillo, the appellees in this
case. After the death of Ramona Levis, Crispulo Javillo married Rosario
Onas. To this marriage four children were born, to wit, Joaquin, Ana,
Bernardo and Porillana. Rosario Onas is the appellant in this case.

The parties entered into the following agreement as to the property acquired during the first and second marriages:

“CONVENIO: Ambas partes convienen que los terrenos
designados como parcelas 1ª , 2. ª, 3.ª , 4.ª, 5.ª, 6.ª, 7.ª, 8.ª, 9.ª,
10.ª, y 11.ª del inventario de los comisionados de avaltio y
reclamaciones obrantes a folios 40 al 43 del expediente han sido
encontrados durante la vida marital de Crispulo Javillo con su primera
esposa, madre de Consolation, Mercedes, Caridad, Soledad y Jose
Javillo; y que las parcelas 12.ª, 13.ª, 14.ª, 15.ª, 16.ª, 17.ª, 18.ª,
19.ª, 20, 21, 22 , 23, 24, 25, 26, 27, 28, 29, 30 y 31 de dicho
inventario fueron comprados o encontrados durante la vida marital de
Crispulo Javillo con Rosario Onas. Que durante el primer matrimonio
fueron adquiridos cinco carabaos y el resto de los carabaos as! como
los vacunos fueron encontrados durante el matrimonio de Crispulo
Javillo con Rosario Onas.”

The appellant alleges that the lower court committed the following errors:

“I. The lower court erred in holding that all the
properties acquired during the second marriage of Crispulo Javillo with
Rosario Onas were acquired with the products of the properties of the
first marriage of said Crispulo Javillo with Ramona Levis, and in
approving the manner of distributing the estates among the heirs of the
first and second marriages, as indicated in the project of partition
now in question.

“II. The lower court erred in approving the
second project of partition dated September 9, 1931, notwithstanding
that the same did not include all the properties of the deceased
Crispulo Javillo.”

The first assignment of error is well taken. Crispulo Javillo lived
for about twenty years after his second marriage and during that
marriage acquired twenty parcels of land. Only eleven parcels were
acquired during the first marriage. It would take a person with a very
vivid imagination to believe that the product of eleven parcels of land
acquired during the first marriage supplied all of the capital used in
acquiring the twenty parcels of the second marriage. Such a claim is
preposterous.

“Some Spanish commentators have suggested that upon
the death of the husband or wife, the community continues between the
survivor and the heirs of the deceased until partition has actually
taken place, and that the latter are entitled to share in its
acquisitions during its continuance. * * * But this view was never
generally accepted by the Spanish jurists1, and an examination of the
provisions of the Civil Code makes it clear that the authors of that
body of laws did not contemplate any such extension of the life of the
community. Gutierrez adopting the views of Matienzo says:

”
‘The community partnership being as permanent as the state that
produces it, there can be no doubt that the same causes influence it as
marriage. The first of them is death. Some have believed that the
community might continue to exist between the surviving spouse and the
heirs of the deceased husband or wife; but, in the opinion of Matienzo,
which appears to us to be well-founded, there are reasons for believing
otherwise, to wit: (1) When the marriage is dissolved, the cause that
brought about the community ceases, for the principles of an ordinary
partnership are not applicable to this community, which is governed by
special rules. (2) In the absence of the reasons that induced the
legislator to establish it, the provisions of law governing the subject
should cease to have any effect for the community of property is
admissible and proper in so far as it conforms to unity of life, to the
mutual affection between husband and wife, and serves as a recompense
for the care of preserving and increasing the property; all of which
terminates by the death of one of the partners. (3) The partnership
having been created by law, it has no object and it is unsafe to extend
it on pretext of tacit consent/ (Gutierrez, 3d ed., vol. 1, p. 579.)

“Manresa, discussing the status of the community (sociedad) after dissolution of the conjugal relations makes the following comment:

“* * * The community terminates when the marriage is dissolved or
annulled, or when during the marriage an agreement is entered into to
divide the conjugal property. The conjugal partnership exists therefore
so long as the spouses are legally united; the important thing is not
exactly the bond, the tie formed by the marriage, but, the existence in
the eyes of the law of the life in common. It is this life in common
that creates common necessities and represents common efforts, the
result of which should be that both partners should share in the
profits.

” ‘When, for any cause, the conjugal partnership
established upon the basis of the system of community property is
dissolved, all the provisions of articles 1401 to 1416, based upon the
existence of that partnership, cease to apply.

”
‘Consequently, whatever is acquired by the surviving spouse on the
dissolution of the partnership by death or presumption of death, or by
either of the spouse on termination of the partnership for other
reasons and when this latter no longer exists, whether the acquisition
be made by his or her labor or industry, or whether by onerous or by
lucrative title, it forms a part of his or her own capital, in which
the other consort, or his or her heirs, can claim no share. The fruits,
as an accessory, follow the property; the buildings, the soil; the
plantings’, the land—all according to the general rules of accession,'”
(Nable Jose vs. Nable Jose, 41 Phil., 713, 717-719.)

“* * * it may fairly be deduced that prior to the liquidation, the
interest of the wife, and in case of her death, of her heirs, is an
interest inchoate, a mere expectancy, which constitutes neither a legal
nor an equitable estate, and does not ripen into title until it appears
that there are assets in the community as a result of the liquidation
and settlement. * * *” (Nable Jose vs. Nable Jose, supra.)

In this case it does not appear that there was a liquidation of the
partnership property of the first marriage nor does it appear that they
asked for such a liquidation.

The project of partition approved by the lower court is based on
the above-mentioned absurd claim and furthermore is not in conformity
to law. One-half of all the conjugal property of both marriages
corresponds to the deceased Crispulo Javillo and must be divided share
and share alike among all the children of both marriages. One-half of
the conjugal property pertaining to the first marriage should be
divided share and share alike among the five children of that marriage.
One-half of the conjugal property of the second marriage must be
adjudicated to the widow Rosario Onas and furthermore she has a right
of usufruct over the property of her deceased husband equal to
one-ninth of the two-thirds of that property which constitutes the
legitime of the children of both marriages which is two-twenty-sevenths
of the property corresponding to her husband. This usufruct should be
taken from the property pertaining to the second marriage.

The property corresponding to the first marriage consists of
parcels 1 to 11, inclusive, and 5 carabaos. The property of the second
marriage consists of parcels 12 to 31, inclusive, and the remainder of
the carabaos and large cattle mentioned in the agreement copied above.

If it is true as alleged by the appellant that there are houses on
any of these parcels of land, it is to be presumed that they were
included in the valuation made by the committee on claims and appraisal
and therefore they would belong to the person to whom the land, upon
which they are built, is adjudicated.

The judgment of the lower court is reversed and this case is
remanded for further proceedings in conformity with this decision
without pronouncement as to costs.

Malcolm, Villa-Real, Hull, and Imperial, JJ., concur.

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^[1] 54 Phil., 602.