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VOL. 19, JANUARY 25, 1967 85

Reyes vs. Barretto-Datu

No. L-17818. January 25, 1967.

TIRSO T. REYES, as guardian of the minors Azucena,

Flordelis and Tirso, Jr., all surnamed Reyes y Barretto,
plaintiffs-appellants, vs. LUCIA MILAGROS
BARRETTODATU, defendant-appellee.

Succession; Partition, wherein an instituted heir. who was

later found not to be the decedent’s child, was included, is valid.—
Article 1081 of the Old Civil Code, which provides that “a
partition made with the inclusion of a person believed to be an
heir, but who is not, shall be void,” does not apply to a case where
the partition was made between two persons instituted as heirs in
a will but it was found out later that one of them was not the
testator’s child. The reason is obvious. The heir, who was not the
testator’s child, was admittedly instituted as an heir in the will,
and was not merely a person who was erroneously believed to be
an heir (See Reyes vs. Datu, 94 Phil. 446; Reyes vs. Barretto, 98
Phil. 996). Article 1081 does not speak of children or descendants
but of heirs (without distinction between forced, voluntary or
intestate ones), and the fact that the person in question was not
the testator’s daughter does not preclude her from being one of
the heirs expressly named in the testament, for the testator was
at liberty to assign the f ree portion of his estate to

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86 SUPREME COURT REPORTS ANNOTATED

Reyes vs. Barretto-Datu

whomsover he chose. The fact that the one-half share assigned to

the said person encroached upon the legitime of the other
instituted heir, who was a real daughter of the testator, did not
preclude that person from becoming a testamentary heir of the
decedent.

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Same; Diminution of legitime of forced heir does not constitute

preterition.—Where the testator allotted in his will to his
legitimate daughter a share less than her legitime, such
circumstance would not invalidate the institution of a stranger as
an heir, since there was no preterition or total omission of a forced
heir. The ruling in Neri vs. Akutin, 72 Phil. 322 is not applicable
to the case.
Same; Partition not amounting to a compromise on civil
status.—Where a partition was made between two persons
instituted as heirs in the will, and one of them was found out later
not to be the testator’s daughter, while the other was really his
daughter, it cannot be said that the partition was a void
compromise on the civil status of the person who was not the
testator’s daughter. At the time of the partition, the civil status of
that person was not being questioned. There can be no
compromise on a matter that was not in issue, While the law
outlaws a compromise over civil status, it does not forbid a
settlement by the parties regarding the share that should
correspond to the claimant to the hereditary estate.
Same; When partition decreed by the court is res judicata.—A
project of partition is merely a proposal for the distribution of the
hereditary estate which the court may accept or reject. It is the
court alone that makes the distribution of the estate and
determines the persons entitled thereto (Camia de Reyes vs.
Reyes de Ilano, 63 Phil. 629; Sec. 750, Act 190; Rule 90, Old Rules
of Court; Rule 91, Revised Rules of Court). It is that final judicial
decree of distribution that vests title in the distributees. If the
decree was erroneous, it should have been corrected by opportune
appeal; but once it had become final, its binding effect is like that
of any other judgment in rem, unless properly set aside for lack of
jurisdiction or fraud. Where the court has validly issued a decree
of distribution and the same has become final, the validity or
invalidity of the project of partition becomes irrelevant.
Same; When consummated partition cannot be set aside.—A
partition agreement that was ratified by the court’s decree of
distribution and was actually consummated by delivery of the
shares to the distributees cannot be set aside after a long lapse of
time. The rule in Saminiada vs. Mata, 92 Phil. 426 does not apply
to that case.
Same; Distribution according to the will should be respected;
The minority of the distributee does not affect court’s jurisdiction.
—A distribution in the decedent’s will, made according to

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VOL. 19, JANUARY 25, 1967 87

Reyes vs. Barretto-Datu

his will, should be respected. The fact that one of the distributees
was a minor at the time the court issued the decree of distribution
does not imply that the court had no jurisdiction to enter the
decree of distribution. The proceeding for the settlement of a
decedent’s estate is a proceeding in rem (Ramos vs. Ortuzar, 89
Phil. 741). It is binding on the distributee who was represented by
her mother as guardian.
Same; Relief on the ground of fraud.—Where in a partition
between two instituted heirs, one of them did not know that she
was not really the child of the testator, it cannot be said that she
def rauded the other heir who was the testator’s daughter. At any
rate, relief on the ground of fraud must be obtained within four
years from its discovery. Where the person allegedly defrauded
was only sixteen years old in 1939, when the fraud was allegedly
perpetrated, and she became of age in 1944, and became aware of
the fraud in 1946, her action in 1956 to set aside the partition was
clearly barred.
Guardianship; Guardian cannot waive rights of the ward.—
An abdicative waiver of rights by a guardian is an act of
disposition. It cannot bind his ward, being null and void as to the
ward unless duly authorized by the proper court (Ledesma
Hermanos vs. Castro, 55 Phil. 136, 142).

APPEAL from a judgment of the Court of First Instance of

Bulacan.

The facts are stated in the opinion of the Court.

     Recto Law Offices for plaintiff-appellant.
          Deogracias T. Reyes and Associates for
defendantappellee.

REYES, J.B.L., J.:

Direct appeal from a judgment of the Court of First

Instance of Bulacan, in its Civil Case No. 1084, dismissing
the complaint of appellant Tirso T. Reyes and ordering the
same to deliver to the defendant-appellee, Lucia Milagros
Barretto-Datu, the properties received by his deceased wife
under the terms of the will of the late Bibiano Barretto,
consisting of lots in Manila, Rizal, Pampanga and Bulacan,
valued at more than P200,000.
The decision appealed from sets the antecedents of the
case to be as follows:

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“‘This is an action to recover one-half share in the fishpond,

located in the barrio of San Roque, Hagonoy, Bulacan, covered by
Transfer Certificate of Title No. T-13734 of the Land Records of
this Province, being the share of plaintiff’s wards

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Reyes vs. Barretto-Datu

as minor heirs of the deceased Salud Barretto, widow of plaintiff

Tirso Reyes, guardian of said minors.
It appears that Bibiano Barretto was married to Maria
Gerardo. During their lifetime they acquired a vast estate,
consisting of real properties in Manila, Pampanga, and Bulacan,
covered by Transfer Certificates of Title Nos. 41423, 22443, 8858,
32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and
12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City
of Manila, he left his share of these properties in a will to Salud
Barretto, mother of plaintiff’s wards, and Lucia Milagros Barretto
and a small portion as legacies to his two sisters Rosa Barretto
and Felisa Barretto and his nephew and nieces. The usufruct of
the fishpond situated in barrio San Roque, Hagohoy, Bulacan,
above-mentioned, however, was reserved for his widow, Maria
Gerardo. In the meantime, Maria Gerardo was appointed
administratrix, By virtue thereof, she prepared a project of
partition, which was signed by her in her own behalf and as
guardian of the minor Milagros Barretto. Said project of partition
was approved by the Court of First Instance of Manila on
November 22, 1939. The distribution of the estate and the
delivery of the shares of the heirs followed forthwith. As a
consequence, Salud Barretto took immediate possession of her
share and secured the cancellation of the original certif ficates of
title and the issuance of new titles in her own name.
Everything went well since then. Nobody was heard to
complain of any irregularity in the distribution of the said estate
until the widow, Maria Gerardo died on March 5, 1948. Upon her
death, it was discovered that she had executed two wills, in the
first of which, she instituted Salud and Milagros, both surnamed
Barretto, as her heirs; and, in the second, she revoked the same
and left all her properties in favor of Milagros Barretto alone.
Thus, the later will’ was allowed and the first rejected. In
rejecting the first will presented by Tirso Reyes, as guardian of
the children of Salud Barretto, the lower court held that Salud
was not the daughter of the decedent Maria Gerardo by her
husband Bibiano Barretto. This ruling1 was appealed to the
Supreme Court, which affirmed the same.
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Having thus lost this fight for a share in the estate of Maria
Gerardo, as a legitimate heir of Maria Gerardo, plaintiff now falls
back upon the remnant of the estate of the deceased Bibiano
Barretto, which was given in usufruct to his widow Maria
Gerardo. Hence, this action for the recovery of onehalf portion,
thereof.
This action afforded the defendant an opportunity to set up her
right of ownership, not only of the fishpond under

________________

1 Reyes vs. Barretto, G.R. No. L-5831, Jan. 31, 1956.

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VOL. 19, JANUARY 25, 1967 89

Reyes vs. Barretto-Datu

litigation, but of all the other properties willed and delivered to

Salud Barretto, for being a spurious heir, and not entitled to any
share in the estate of Bibiano Barretto, thereby directly attacking
the validity, not only of the project of partition, but of the decision
of the court based thereon as well.
The defendant contends that the Project of Partition from
which Salud acquired the fishpond in question is void ab initio
and Salud Barretto did not acquire any valid title thereto, and
that the court did not acquire any jurisdiction of the person of the
defendant, who was then a minor.’ "

Finding for the defendant (now appellee), Milagros

Barretto, the lower court declared the project of partition
submitted in the proceedings f or the settlement of the
estate of Bibiano Barretto (Civil Case No. 49629 of the
Court of First Instance of Manila) to be null and void ab
initio (not merely voidable) because the distributee, Salud
Barretto, predecessor of plaintiffs (now appellants), was not
a daughter of the spouses Bibiano Barretto and Maria
Gerardo. The nullity of the project of partition was decreed
on the basis of Article 1081 of the Civil Code of 1889 (then
in force) providing as follows:

“A partition in which a person was believed to be an heir, without

being so, has been included, shall be null and void.”

The court a quo further rejected the contention advanced

by plaintiffs that since Bibiano Barretto was free to dispose
of one-third (1/3) of his estate under the old Civil Code, his
will was valid in favor of Salud Barretto (nee Lim Boco) to
the extent, at least, of such free part. And it concluded that,
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as defendant Milagros was the only true heir of Bibiano

Barretto, she was entitled to recover from Salud, and from
the latter’s children and successors, all the properties
received by her from Bibiano’s estate, in view of the
provisions of Article 1456 of the new Civil Code of the
Philippines establishing that property acquired by fraud or
mistake is held by its acquirer in implied trust for the real
owner. Hence, as stated at the beginning of this opinion,
the Court a quo not only dismissed the plaintiffs’ complaint
but ordered them to return the properties received under
the project of partition previously mentioned as prayed for
in defendant Milagros Barretto’s counterclaim. However, it
denied defendant’s prayer for damages. Hence, this appeal
interposed by both plaintiffs and defendant
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Reyes vs. Barretto-Datu

Plaintiffs-appellants correctly point out that Article 1081 of

the old Civil Code has been misapplied to the present case
by the court below. The reason is obvious: Salud Barretto
admittedly had been instituted heir in the late Bibiano
Barretto’s last will and testament together with defendant
Milagros; hence, the partition had between them could not
be one such had with a party who was believed to be an
heir without really being one, and was not null and void
under said article. The legal precept (Article 1081) does not
speak of children, or descendants, but of heirs (without
distinction between forced, voluntary or intestate ones),
and the fact that Salud happened not to be a daughter of
the testator does not preclude her being one of the heirs
expressly named in his testament; for Bibiano Barretto was
at liberty to assign the free portion of his estate to
whomsoever he chose. While the share (1/2) assigned to
Salud impinged on the legitime of Milagros, Salud did not
for that reason cease to be a testamentary heir of Bibiano
Barretto.
Nor does the fact that Milagros was allotted in her
father’s will a share smaller than her legitime invalidate
the institution of Salud as heir, since there was here no
preterition, or total omission, of a forced heir. For this
reason, Neri vs. Akutin, 72 Phil. 322, invoked by appellee,
is not at all applicable, that case involving an instance of
preterition or omission of children of the testator’s former
marriage.

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Appellee contends that the partition in question was

void as a compromise on the civil status of Salud in
violation of Article 1814 of the old Civil Code. This view is
erroneous, since a compromise presupposes the settlement
of a controversy through mutual concessions of the parties
(Civil Code of 1889, Article 1809; Civil Code of the
Philippines, Art. 2028); and the condition of Salud as
daughter of the testator Bibiano Barretto, while untrue,
was at no time disputed during the settlement 01 the
estate of the testator. There can be no compromise over
issues not in dispute. And while a compromise over civil
status is prohibited, the law nowhere forbids a settlement
by the parties over the share that should correspond to a
claimant to the estate.
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Reyes vs. Barretto-Datu

At any rate, independently of a project of partition which,

as its own name implies, is merely a proposal for
distribution of the estate, that the court may accept or
reject, it is the court alone that makes the distribution of
the estate and determines the persons entitled thereto and
the parts to which each is entitled (Camia vs. Reyes, 63
Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of 1940;
Rule 91, Revised Rules of Court), and it is that judicial
decree of distribution, once final, that vests title in the
distributees. If the decree was erroneous or not in
conformity with law or the testament, the same should
have been corrected by opportune appeal; but once it had
become final, its binding effect is like that of any other
judgment in rem, unless properly set aside for lack of
jurisdiction or fraud.
It is thus apparent that where a court has validly issued
a decree of distribution of the estate, and the same has
become final, the validity or invalidity of the project of
partition becomes irrelevant.
It is, however, argued for the appellee that since the
court’s distribution of the estate of the late Bibiano
Barretto was predicated on the project of partition executed
by Salud Barretto and the widow, Maria Gerardo (who
signed for herself and as guardian of the minor Milagros
Barretto), and since no evidence was taken of the filiation
of the heirs, nor were any findings of fact or law made, the
decree of distribution can have no greater validity than
that of the basic partition, and must stand or fall with it,
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being in the nature of a judgment by consent, based on a

compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked
in support of the proposition, That case is authority for the
proposition that a judgment by compromise may be set
aside on the ground of mistake or fraud, upon petition filed
in due time, where petition for “relief was filed before the
compromise agreement, a proceeding, was
consummated“(cas. cit. at p. 436). In the case before us,
however, the agreement of partition was not only ratified
by the court’s decree of distribution, but actually
consummated, so much so that the titles in the name of the
deceased were cancelled, and new certificates issued in
favor of the

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Reyes vs. Barretto-Datu

heirs, long before the decree was attacked. Hence,

Saminiada vs. Mata does not apply.
Moreover, the defendant-appellee’s argument would be
plausible if it were shown that the sole basis for the decree
of distribution was the project of partition. But, in fact,
even without it, the distribution could stand, since it was in
conformity with the probated will of Bibiano Barretto,
against the provisions whereof no objection had been made.
In fact, it was the court’s duty to do so. Act 190, section
640, in force in 1939, provided:

SEC. 640. Estate, How Administered.—When a will is thus

allowed, the court shall grant letters testamentary, or letters of
administration with the will annexed, and such letters
testamentary or of administration, shall extend to all the estate of
the testator in the Philippine Islands. Such estate, after the
payment of just debts and expenses of administration, shall be
disposed of according to such will, so far as such will may operate
upon it; and the residue, if any, shall be disposed of as is provided
by law in cases of estates in these Islands belonging to persons
who are inhabitants of another state or country.” (Italics supplied)

That defendant Milagros Barretto was a minor at the time

the probate court distributed the estate of her father in
1939 does not imply that the said court was without
jurisdiction to enter the decree of distribution. Passing
upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89
Phil. Reports, pp. 741 and 742:

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“If we are to assume that Richard Hill and Marvin Hill did not
formally intervene, still they would be concluded by the result of
the proceedings, not only as to their civil status but as the
distribution of the estate as well. As this Court has held in
Manolo vs. Paredes, 47 Phil. 938, The proceeding for probate is
one in rem (40 Cyc., 1265) and the court acquires jurisdiction over
all persons interested, through the publication of He notice
prescribed by section 630 C.P.C.; and any order that may be
entered therein is binding against all of them.’ (See also in re
Estate of Johnson, 39 Phil. 156.) ‘A final order of distribution of
the estate of a deceased person vests the title to the land of the
estate in the distributees’. (Santos vs. Roman Catholic Bishop of
Nueva Caceres, 45 Phil. 895.) There is no reason why, by analogy,
these salutary doctrines should not apply to intestate proceedings.
The only instance that we can think of in which a party
interested in a probate proceeding may have a final liquidation

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Reyes vs. Barretto-Datu

set aside is when he is left out by reason of circumstances beyond

his control or through mistake or inadvertence not imputable to
negligence. Even then, the better practice to secure relief is
reopening of the same case by proper motion within the
reglementary period, instead of an independent action the effect
of which, if successful, would be, as in the instant case, for
another court or judge to throw out a decision or order already
final and executed and reshuffle properties long ago distributed
and disposed of.”

It is well to observe, at this juncture, as this Court

expressly declared in Reyes vs. Barretto Datu, 94 Phil. 446
(Am’d Rec. Appeal, pp. 158, 157), that:

“x x x lt is argued that Lucia Milagros Barretto was a minor when

she signed the partition, and that Maria Gerardo was not her
judicially appointed guardian. The claim is not true. Maria
Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97,
Rules of Court.) The mere statement in the project of partition
that the guardianship proceedings of the minor Lucia Milagros
Barretto are pending in the court, does not mean that the
guardian had not yet been appointed; it meant that the
guardianship proceedings had not yet been terminated, and as a
guardianship proceedings begin with the appointment of a
guardian, Maria Gerardo must have been already appointed when
she signed the project of partition. There is, therefore, no

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irregularity or defect or error in the project of partition, apparent

on the record of the testate proceedings, which shows that Maria
Gerardo had no power or authority to sign the project of partition
as guardian of the minor Lucia Milagros Barretto, and,
consequently, no ground for the contention that the order
approving the project of partition is absolutely null and void and
may be attacked collaterally in these proceedings.”

So that it is now incontestable that appellee Milagros

Barretto was not only made a party by publication but
actually appeared and participated in the proceedings
through her guardian: she, therefore, can not escape the
jurisdiction of the Manila Court of First Instance which
settled her father’s estate.
Defendant-appellee further pleads that as her mother
and guardian (Maria Gerardo) could not have ignored that
the distributee Salud was not her child, the act of said
widow in agreeing to the oft-cited partition and distribution
was a fraud on appellee’s rights and entitles her to relief.
In the first place, there is no evidence that when the estate
of Bibiano Barretto was judicially settled and distributed
appellants’ predecessor, Salud Lim Boco Barret-
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Reyes vs. Barretto-Datu

to, knew that she was not Bibiano’s child: so that if fraud
was committed, it was the widow, Maria Gerardo, who was
solely responsible, and neither Salud nor her minor
children, appellants herein, can be held liable therefor. In
the second place, granting that there was such fraud, relief
therefrom can only be obtained within 4 years from its
discovery, and the record shows that this period had
elapsed long ago.
Because at the time of the distribution Milagros
Barretto was only 16 years old (Exhibit 24), she became of
age five years later, in 1944. On that year, her cause of
action accrued to contest on the ground of fraud the court
decree distributing her father’s estate and the four-year
period of limitation started to run, to expire in 1948
(Section 43, Act. 190). In fact, conceding that Milagros only
became aware of the true facts in 1946 (Appellee’s Brief, p.
27), her action still became extinct in 1950. Clearly,
therefore, the action was already barred when in August
31, 1958 she filed her counterclaim in this case contesting
the decree of distribution of Bibiano Barretto’s estate.
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In order to evade the statute of limitations, Milagros

Barretto introduced evidence that appellant Tirso Reyes
had induced her to delay filing action by verbally promising
to reconvey the properties received by his deceased wife,
Salud. There is no reliable evidence of the alleged promise,
which rests exclusively on the oral assertions of Milagros
herself and her counsel. In, fact, the trial court made no
mention of such promise in the decision under appeal. Even
more: granting arguendo that the promise was made, the
same can not bind the wards, the minor children of Salud,
who are the real parties in interest. An abdicative waiver of
rights by a guardian, being an act of disposition, and not of
administration, can not bind his wards, being null and void
as to them unless duly authorized by the proper court
(Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between
Salud and Milagros Barretto in the proceedings for the
settlement of the estate of Bibiano Barretto duly approved
by the Court of First Instance of Manila in 1939, in its Civil
Case No. 49629, is not void for being contrary to
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Hernandez vs. Albano, et al.

either Article 1081 or 1814 of the Civil Code of 1889; (2)

that Milagros Barretto’s action to contest said partition and
decree of distribution is barred by the statute of
limitations; and (3) that her claim that plaintiff-appellant
guardian is a possessor in bad faith and should account for
the fruits received from the properties inherited by Salud
Barretto (nee Lim Boco) is legally untenable. It follows that
the plaintiffs’ action for partition of the fishpond described
in the -complaint should have been given due course.
Wherefore, the decision of the Court of First Instance of
Bulacan now under appeal is reversed and set aside in so
far as it orders plaintiff-appellant to reconvey to appellee
Milagros Barretto-Datu the properties enumeracted in said
decision, and the same is affirmed in so far as it denies any
right of said appellee to accounting. Let the records be
returned to the court of origin, with instructions to proceed
with the action for partition of the fishpond (Lot No. 4, Plan
Psu-4709), covered by TCT No. T13734 of the Office of the
Register of Deeds of Bulacan, and for the accounting of the
fruits thereof, as prayed for in the complaint. No costs.

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Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon,

J.P., Zaldivar, Sanchez and Castro, JJ., concur.

Judgment reversed in part and affirmed in part.

_____________

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