PASCUAL - v - PASCUAL, ET AL.
[EN
BANC, G.R. No. L-48140, May 4, 1942 MORAN, J.]
Facts:
1.
On
September 14, 1940, while the proceedings for the probate of the will of the
deceased Eduarda de los Santos were
pending in the Court of First Instance of Rizal plaintiff, Sinforoso
Pascual, instituted in the Court of First Instance of Pampanga against Ponciano
S. Pascual and others, an action for the annulment
of a contract of sale of a fishpond situated in Lubao, Pampanga,
supposedly executed without consideration by said deceased in her lifetime in
favor of the defendants.
2.
The
complaint alleges that plaintiff and defendants are all residents of Malabon,
Rizal, and are legitimate children of the testratix, Eduarda de los Santos.
4.
The trial court granted the motion on the
ground that the action should have been brought by the executor or
administrator of the estate left by the deceased, and directed the plaintiff to
amend his complaint within five days.
5.
Plaintiff
filed an amended complaint, which read “the
defendant Miguel S. Pascual has been appointed by the Court of First Instance
of Rizal testamentary executor of the property of the late Eduarda de los
Santos. In the matter of the testamentary of said deceased. [English
translation]”
6.
The trial
court declaring that such amendment did not cure the insufficiency of the
complaint, dismissed the action.
7.
It is from
this order of dismissal that plaintiff interposed his appeal.
Issue: Whether or not the trial court erred in
declaring the complaint insufficient despite its amendment.
Held: Yes. Order is reversed, and the case is remanded
the trial court for further proceedings.
Ruling:
Under Rule
86, section 1, of the new Rules of Court, actions for the recovery or
protection of the property or rights of the deceased for causes which survive
may be prosecuted or defended by his executor or administrator. Upon the
commencement of the testate or intestate proceedings the heirs have no standing
in court in actions of the above character, except when the executor or
administrator is unwilling or fails or refuses to act, in which event to heirs
may act in his place.
Here, the fictitious sale is alleged to have been
made to the defendants, one of them, Miguel S. Pascual, being the executor
appointed by the probate court. Such executor naturally would not bring an
action against himself for recovery of the fishpond. His refusal to act may, therefore, be implied. And this brings the
case under the exception. It should be noted that in the complaint the
prayer is that the fishpond be delivered not to the plaintiff but to the
executor, thus indicating that the action is brought in behalf of the estate of
the deceased.
Appellees contend that there is here a
wrong venue.
It appearing that the sale is alleged to be
fictitious, with absolutely no consideration, it should be regarded as a
non-existent, not merely null, contract. The action brought cannot thus be for
annulment of contract, but is one for recovery of a fishpond, a real action
that should be, as it has been, brought in Pampanga, where the property is
located.
Appellees argue that the question
involved therein is one that may properly raised and decided in the probate
proceedings.
The
general rule is that questions as to title to property cannot be passed upon in
testate proceedings. But when
as in the instant case, the parties
interested are all heirs of the deceased claiming title under him, the question
as to whether the transfer made by the latter to the former is or is not
fictitious, may properly be brought by motion in the testate or intestate
proceedings on or before the distribution of the estate among the heirs.
This procedure is optional to the parties concerned who may choose to bring a separate action as a matter of convenience
in the preparation or presentation of evidence, and accordingly, the action brought
by the appellant is not improper.
