G.R. No. 126334November 23, 2001EMILIO EMNACE,petitioner,vs.COURT OF APPEALS, ESTATE OF VICENTE TABANAO, SHERWIN TABANAO, VICENTE WILLIAM TABANAO, JANETTE TABANAO DEPOSOY, VICENTA MAY TABANAO VARELA, ROSELA TABANAO and VINCENT TABANAO,respondents.YNARES-SANTIAGO,J.:Petitioner Emilio Emnace, Vicente Tabanao and Jacinto Divinagracia were partners in a business concern known as Ma. Nelma Fishing Industry. Sometime in January of 1986, they decided to dissolve their partnership and executed an agreement of partition and distribution of the partnership properties among them, consequent to Jacinto Divinagracia's withdrawal from the partnership.1Among the assets to be distributed were five (5) fishing boats, six (6) vehicles, two (2) parcels of land located at Sto. Nio and Talisay, Negros Occidental, and cash deposits in the local branches of the Bank of the Philippine Islands and Prudential Bank.Throughout the existence of the partnership, and even after Vicente Tabanao's untimely demise in 1994, petitioner failed to submit to Tabanao's heirs any statement of assets and liabilities of the partnership, and to render an accounting of the partnership's finances. Petitioner also reneged on his promise to turn over to Tabanao's heirs the deceased's 1/3 share in the total assets of the partnership, amounting to P30,000,000.00, or the sum of P10,000,000.00, despite formal demand for payment thereof.2Consequently, Tabanao' s heirs, respondents herein, filed against petitioner an action for accounting, payment of shares, division of assets and damages.3In their complaint, respondents prayed as follows:1. Defendant be ordered to render the proper accounting of all the assets and liabilities of the partnership at bar; and2. After due notice and hearing defendant be ordered to pay/remit/deliver/surrender/yield to the plaintiffs the following:A. No less than One Third (1/3) of the assets, properties, dividends, cash, land(s), fishing vessels, trucks, motor vehicles, and other forms and substance of treasures which belong and/or should belong, had accrued and/or must accrue to the partnership;B. No less than Two Hundred Thousand Pesos (P200,000.00) as moral damages;C. Attorney's fees equivalent to Thirty Percent (30%) of the entire share/amount/award which the Honorable Court may resolve the plaintiffs as entitled to plus P1,000.00 for every appearance in court.4Petitioner filed a motion to dismiss the complaint on the grounds of improper venue, lack of jurisdiction over the nature of the action or suit, and lack of capacity of the estate of Tabanao to sue.5On August 30, 1994, the trial court denied the motion to dismiss. It held that venue was properly laid because, while realties were involved, the action was directed against a particular person on the basis of his personal liability; hence, the action is not only a personal action but also an actionin personam.As regards petitioner's argument of lack of jurisdiction over the action because the prescribed docket fee was not paid considering the huge amount involved in the claim, the trial court noted that a request for accounting was made in order that the exact value of the partnership may be ascertained and, thus, the correct docket fee may be paid. Finally, the trial court held that the heirs of Tabanao had aright to sue in their own names, in view of the provision of Article 777 of the Civil Code, which states that the rights to the succession are transmitted from the moment of the death of the decedent.6The following day, respondents filed an amended complaint,7incorporating the additional prayer that petitioner be ordered to "sell all (the partnership's) assets and thereafter pay/remit/deliver/surrender/yield to the plaintiffs" their corresponding share in the proceeds thereof. In due time, petitioner filed a manifestation and motion to dismiss,8arguing that the trial court did not acquire jurisdiction over the case due to the plaintiffs' failure to pay the proper docket fees. Further, in a supplement to his motion to dismiss,9petitioner also raised prescription as an additional ground warranting the outright dismissal of the complaint.On June 15, 1995, the trial court issued an Order,10denying the motion to dismiss inasmuch as the grounds raised therein were basically the same as the earlier motion to dismiss which has been denied. Anent the issue of prescription, the trial court ruled that prescription begins to run only upon the dissolution of the partnership when the final accounting is done. Hence, prescription has not set in the absence of a final accounting. Moreover, an action based on a written contract prescribes in ten years from the time the right of action accrues.Petitioner filed a petition for certiorari before the Court of Appeals,11raising the following issues:I. Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in taking cognizance of a case despite the failure to pay the required docket fee;II. Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in insisting to try the case which involve (sic) a parcel of land situated outside of its territorial jurisdiction;III. Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in allowing the estate of the deceased to appear as party plaintiff, when there is no intestate case and filed by one who was never appointed by the court as administratrix of the estates; andIV. Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in not dismissing the case on the ground of prescription.On August 8, 1996, the Court of Appeals rendered the assailed decision,12dismissing the petition for certiorari, upon a finding that no grave abuse of discretion amounting to lack or excess of jurisdiction was committed by the trial court in issuing the questioned orders denying petitioner's motions to dismiss.Not satisfied, petitioner filed the instant petition for review, raising the same issues resolved by the Court of Appeals, namely:I. Failure to pay the proper docket fee;II. Parcel of land subject of the case pending before the trial court is outside the said court's territorial jurisdiction;III. Lack of capacity to sue on the part of plaintiff heirs of Vicente Tabanao; andIV. Prescription of the plaintiff heirs' cause of action.It can be readily seen that respondents' primary and ultimate objective in instituting the action below was to recover the decedent's 1/3 share in the partnership' s assets. While they ask for an accounting of the partnership' s assets and finances, what they are actually asking is for the trial court to compel petitioner to pay and turn over their share, or the equivalent value thereof, from the proceeds of the sale of the partnership assets. They also assert that until and unless a proper accounting is done, the exact value of the partnership' s assets, as well as their corresponding share therein, cannot be ascertained. Consequently, they feel justified in not having paid the commensurate docket fee as required by the Rules of Court.1wphi1.ntWe do not agree. The trial court does not have to employ guesswork in ascertaining the estimated value of the partnership's assets, for respondents themselves voluntarily pegged the worth thereof at Thirty Million Pesos (P30,000,000.00). Hence, this case is one which is really not beyond pecuniary estimation, but rather partakes of the nature of a simple collection case where the value of the subject assets or amount demanded is pecuniarily determinable.13While it is true that the exact value of the partnership's total assets cannot be shown with certainty at the time of filing, respondents can and must ascertain, through informed and practical estimation, the amount they expect to collect from the partnership, particularly from petitioner, in order to determine the proper amount of docket and other fees.14It is thus imperative for respondents to pay the corresponding docket fees in order that the trial court may acquire jurisdiction over the action.15Nevertheless, unlike in the case ofManchester Development Corp.v.Court of Appeals,16where there was clearly an effort to defraud the government in avoiding to pay the correct docket fees, we see no attempt to cheat the courts on the part of respondents. In fact, the lower courts have noted their expressed desire to remit to the court "any payable balance or lien on whatever award which the Honorable Court may grant them in this case should there be any deficiency in the payment of the docket fees to be computed by the Clerk of Court."17There is evident willingness to pay, and the fact that the docket fee paid so far is inadequate is not an indication that they are trying to avoid paying the required amount, but may simply be due to an inability to pay at the time of filing. This consideration may have moved the trial court and the Court of Appeals to declare that the unpaid docket fees shall be considered a lien on the judgment award.Petitioner, however, argues that the trial court and the Court of Appeals erred in condoning the non-payment of the proper legal fees and in allowing the same to become a lien on the monetary or property judgment that may be rendered in favor of respondents. There is merit in petitioner's assertion. The third paragraph of Section 16, Rule 141 of the Rules of Court states that:The legal fees shall be a lien on the monetary or property judgment in favor of the pauper-litigant.Respondents cannot invoke the above provision in their favor because it specifically applies to pauper-litigants. Nowhere in the records does it appear that respondents are litigating as paupers, and as such are exempted from the payment of court fees.18The rule applicable to the case at bar is Section 5(a) of Rule 141 of the Rules of Court, which defines the two kinds of claims as: (1) those which are immediately ascertainable; and (2) those which cannot be immediately ascertained as to the exact amount. This second class of claims, where the exact amount still has to be finally determined by the courts based on evidence presented, falls squarely under the third paragraph of said Section 5(a), which provides:In case the value of the property or estate or the sum claimed is less or more in accordance with the appraisal of the court, thedifference of fee shall be refunded or paid as the case may be.(Underscoring ours)InPilipinas Shell Petroleum Corporation v. Court of Appeals,19this Court pronounced that the above-quoted provision "clearly contemplates an Initial payment of the filing fees corresponding to the estimated amount of the claim subject to adjustment as to what later may be proved."20Moreover, we reiterated therein the principle that the payment of filing fees cannot be made contingent or dependent on the result of the case. Thus, an initial payment of the docket fees based on an estimated amount must be paid simultaneous with the filing of the complaint. Otherwise, the court would stand to lose the filing fees should the judgment later turn out to be adverse to any claim of the respondent heirs.The matter of payment of docket fees is not a mere triviality. These fees are necessary to defray court expenses in the handling of cases. Consequently, in order to avoid tremendous losses to the judiciary, and to the government as well, the payment of docket fees cannot be made dependent on the outcome of the case, except when the claimant is a pauper-litigant.Applied to the instant case, respondents have a specific claim - 1/3 of the value of all the partnership assets - but they did not allege a specific amount. They did, however, estimate the partnership's total assets to be worth Thirty Million Pesos (P30,000,000.00), in a letter21addressed to petitioner. Respondents cannot now say that they are unable to make an estimate, for the said letter and the admissions therein form part of the records of this case. They cannot avoid paying the initial docket fees by conveniently omitting the said amount in their amended complaint. This estimate can be made the basis for the initial docket fees that respondents should pay. Even if it were later established that the amount proved was less or more than the amount alleged or estimated, Rule 141, Section 5(a) of the Rules of Court specifically provides that the court may refund the 'excess or exact additional fees should the initial payment be insufficient. It is clear that it is only the difference between the amount finally awarded and the fees paid upon filing of this complaint that is subject to adjustment and which may be subjected to alien.In the oft-quoted case ofSun Insurance Office, Ltd. v. Hon. Maximiano Asuncion,22this Court held that when the specific claim "has been left for the determination by the court, the additional filing fee therefor shall constitute a lien on the judgment and it shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee." Clearly, the rules and jurisprudence contemplate the initial payment of filing and docket fees based on the estimated claims of the plaintiff, and it is only when there is a deficiency that a lien may be constituted on the judgment award until such additional fee is collected.Based on the foregoing, the trial court erred in not dismissing the complaint outright despite their failure to pay the proper docket fees. Nevertheless, as in other procedural rules, it may be liberally construed in certain cases if only to secure a just and speedy disposition of an action. While the rule is that the payment of the docket fee in the proper amount should be adhered to, there are certain exceptions which must be strictly construed.23In recent rulings, this Court has relaxed the strict adherence to theManchesterdoctrine, allowing the plaintiff to pay the proper docket fees within a reasonable time before the expiration of the applicable prescriptive or reglementary period.24In the recent case ofNational Steel Corp. v. Court of Appeals,25this Court held that:The court acquires jurisdiction over the action if the filing of the initiatory pleading is accompanied by the payment of the requisite fees, or, if the fees are not paid at the time of the filing of the pleading, as of the time of full payment of the fees within such reasonable time as the court may grant, unless, of course, prescription has set in the meantime.It does not follow, however, that the trial court should have dismissed the complaint for failure of private respondent to pay the correct amount of docket fees.Although the payment of the proper docket fees is a jurisdictional requirement, the trial court may allow the plaintiff in an action to pay the same within a reasonable time before the expiration of the applicable prescriptive or reglementary period.If the plaintiff fails to comply within this requirement, the defendant should timely raise the issue of jurisdiction or else he would be considered in estoppel. In the latter case, the balance between the appropriate docket fees and the amount actually paid by the plaintiff will be considered a lien or any award he may obtain in his favor. (Underscoring ours)Accordingly, the trial court in the case at bar should determine the proper docket fee based on the estimated amount that respondents seek to collect from petitioner, and direct them to pay the same within a reasonable time, provided the applicable prescriptive or reglementary period has not yet expired, Failure to comply therewith, and upon motion by petitioner, the immediate dismissal of the complaint shall issue on jurisdictional grounds.On the matter of improper venue, we find no error on the part of the trial court and the Court of Appeals in holding that the case below is a personal action which, under the Rules, may be commenced and tried where the defendant resides or may be found, or where the plaintiffs reside, at the election of the latter.26Petitioner, however, insists that venue was improperly laid since the action is a real action involving a parcel of land that is located outside the territorial jurisdiction of the courta quo.This contention is not well-taken. The records indubitably show that respondents are asking that the assets of the partnership be accounted for, sold and distributed according to the agreement of the partners. The fact that two of the assets of the partnership are parcels of land does not materially change the nature of the action. It is an actionin personambecause it is an action against a person, namely, petitioner, on the basis of his personal liability. It is not an actionin remwhere the action is against the thing itself instead of against the person.27Furthermore, there is no showing that the parcels of land involved in this case are being disputed. In fact, it is only incidental that part of the assets of the partnership under liquidation happen to be parcels of land.The time-tested case ofClaridades v. Mercader, et al.,28settled this issue thus:The fact that plaintiff prays for the sale of the assets of the partnership, including the fishpond in question, did not change the nature or character of the action, such sale being merely a necessary incident of the liquidation of the partnership, which should precede and/or is part of its process of dissolution.The action filed by respondents not only seeks redress against petitioner. It also seeks the enforcement of, and petitioner's compliance with, the contract that the partners executed to formalize the partnership's dissolution, as well as to implement the liquidation and partition of the partnership's assets. Clearly, it is a personal action that, in effect, claims a debt from petitioner and seeks the performance of a personal duty on his part.29In fine, respondents' complaint seeking the liquidation and partition of the assets of the partnership with damages is a personal action which may be filed in the proper court where any of the parties reside.30Besides, venue has nothing to do with jurisdiction for venue touches more upon the substance or merits of the case.31As it is, venue in this case was properly laid and the trial court correctly ruled so.On the third issue, petitioner asserts that the surviving spouse of Vicente Tabanao has no legal capacity to sue since she was never appointed as administratrix or executrix of his estate. Petitioner's objection in this regard is misplaced. The surviving spouse does not need to be appointed as executrix or administratrix of the estate before she can file the action. She and her children are complainants in their own right as successors of Vicente Tabanao. From the very moment of Vicente Tabanao' s death, his rights insofar as the partnership was concerned were transmitted to his heirs, for rights to the succession are transmitted from the moment of death of the decedent.32Whatever claims and rights Vicente Tabanao had against the partnership and petitioner were transmitted to respondents by operation of law, more particularly by succession, which is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person are transmitted.33Moreover, respondents became owners of their respective hereditary shares from the moment Vicente Tabanao died.34A prior settlement of the estate, or even the appointment of Salvacion Tabanao as executrix or administratrix, is not necessary for any of the heirs to acquire legal capacity to sue. As successors who stepped into the shoes of their decedent upon his death, they can commence any action originally pertaining to the decedent.35From the moment of his death, his rights as a partner and to demand fulfillment of petitioner's obligations as outlined in their dissolution agreement were transmitted to respondents. They, therefore, had the capacity to sue and seek the court's intervention to compel petitioner to fulfill his obligations.Finally, petitioner contends that the trial court should have dismissed the complaint on the ground of prescription, arguing that respondents' action prescribed four (4) years after it accrued in 1986. The trial court and the Court of Appeals gave scant consideration to petitioner's hollow arguments, and rightly so.The three (3) final stages of a partnership are: (1) dissolution; (2) winding-up; and (3) termination.36The partnership, although dissolved, continues to exist and its legal personality is retained, at which time it completes the winding up of its affairs, including the partitioning and distribution of the net partnership assets to the partners.37For as long as the partnership exists, any of the partners may demand an accounting of the partnership's business. Prescription of the said right starts to run only upon the dissolution of the partnership when the final accounting is done.38Contrary to petitioner's protestations that respondents' right to inquire into the business affairs of the partnership accrued in 1986, prescribing four (4) years thereafter, prescription had not even begun to run in the absence of a final accounting. Article 1842 of the Civil Code provides:The right to an account of his interest shall accrue to any partner, or his legal representative as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.Applied in relation to Articles 1807 and 1809, which also deal with the duty to account, the above-cited provision states that the right to demand an accounting accrues at the date of dissolution in the absence of any agreement to the contrary. When a final accounting is made, it is only then that prescription begins to run. In the case at bar, no final accounting has been made, and that is precisely what respondents are seeking in their action before the trial court, since petitioner has failed or refused to render an accounting of the partnership's business and assets. Hence, the said action is not barred by prescription.In fine, the trial court neither erred nor abused its discretion when it denied petitioner's motions to dismiss. Likewise, the Court of Appeals did not commit reversible error in upholding the trial court's orders. Precious time has been lost just to settle this preliminary issue, with petitioner resurrecting the very same arguments from the trial court all the way up to the Supreme Court. The litigation of the merits and substantial issues of this controversy is now long overdue and must proceed without further delay.WHEREFORE,in view of all the foregoing, the instant petition isDENIEDfor lack of merit, and the case isREMANDEDto the Regional Trial Court of Cadiz City, Branch 60, which isORDEREDto determine the proper docket fee based on the estimated amount that plaintiffs therein seek to collect, and direct said plaintiffs to pay the same within a reasonable time, provided the applicable prescriptive or reglementary period has not yet expired. Thereafter, the trial court isORDEREDto conduct the appropriate proceedings in Civil Case No. 416-C.Costs against petitioner.1wphi1.ntSO ORDERED.G.R. No. L-50261 May 31, 1982IN THE MATTER OF GUARDIANSHIP OF THE MINORS CECILIA, REBECCA, FLORIDA, RAPHAEL, RODOLFO, LUISITO, TEODORO, all surnamed LAVIDES, ALBERTO C. LAVIDES,petitioner,vs.CITY COURT OF LUCENA, Branch I,respondent.DE CASTRO,J.:This is a petition for review on certiorari of the two (2) orders of respondent City Court of Lucena, Branch I, one dated December 5, 1978 dismissing petitioner's petition for guardianship for lack of jurisdiction and the other, dated December 27, 1978 denying petitioner's motion for reconsideration of the order of December 5, 1978.There is no dispute as to the following facts:Upon the death of his wife, petitioner Alberto Lavides instituted on April 5, 1971 before respondent City Court a guardianship proceeding (Special Proceeding No. 0609) with respect to the person and property of their seven (7) minor children named Cecilia, Rebecca, Florida, Raphael, Rodolfo, Luisito and Teodoro, all surnamed Lavides. Said petition alleged that the estate left by the deceased wife of herein petitioner, mother of the above- named minors, has a total value of thirty-five thousand pesos (P35,000.00) or an amount of P5,000.00 pertaining to each minor. Although there had been no previous settlement of the estate of the deceased, petitioner was appointed and qualified as judicial guardian on May 10, 1971.On June 23, 1971, respondent City Court, then presided by Honorable Judge Filemon Juntereal, upon motion, authorized petitioner to settle the estate extrajudicially and to sell a portion thereof consisting of shares of stocks. Pursuant to said authority, petitioner extrajudicially settled the estate, and on August 28, 1971, sold the said shares of stocks for the sum of P64,512.00On November 22, 1978, petitioner filed a motion for confirmation and approval of a Deed of Exchange Agreement dated November 18, 1978. While this latter motion was still pending consideration, the respondent court, now presided by Honorable Judge Jose J. Parentela, Jr., reviewed the records of the case and finding that the undivided estate left by the deceased was worth at least P35,000.00, dismissed the case in an Order dated December 5, 1978, for lack of jurisdiction, revoked the appointment of petitioner as guardian and annulled all proceedings taken prior to the issuance of the said order of December 5, 1978.Petitioner filed a motion for reconsideration of said order which was denied by respondent city court in its order dated December 27, 1978. Hence, this instant petition, petitioner raising the following issues, namely:a. Whether or not respondent city court's jurisdiction over a petition for general guardianship is based on the total value of the estate or on the value of the individual share of the minors in the estate of their deceased mother; andb. Whether or not the promulgation of the Revised Rules of Court which was made effective on January 1, 1964 overruled the doctrine laid down by this Honorable Tribunal in the case of "Delgado vs. Gamboa," G. R. No. L-14326, February 28, 1962, 4 SCRA 505.It appears that respondent city court dismissed the petition for guardianship on ground of lack of jurisdiction 1) because a perusal of the records of the case shows that the undivided estate left by the deceased is worth P35,000.00 which is clearly outside its jurisdiction, pursuant to Section 1, Rule 92 of the Revised Rules of Court, and 2) because of this Court's ruling in the case of Delgado vs. Gamboa,supra, to the effect that the concurrent jurisdiction of the Justice of the Peace Courts with the Court of First Instance over the guardianship of the person and properties of the minors and incompetents cannot be exercised when the estate has a value in excess of the jurisdictional amount for the former courts.Petitioner, on the other hand, contends that in the case of petition for guardianship of more than one minor, the individual share of each minor which is then the estate of said minors determines the jurisdiction of the court pursuant to Section 1, Rule 92 of the Revised Rules of Court; that inasmuch as there are seven (7) minor children sought to be placed under guardianship and that the total value of the estate is P35,000.00, then by simple mathematical computation, the value of the property of each minor is P5,000.00, already a determined estate, which is well within the jurisdiction of the respondent city court; that the case of Delgado vs. Gamboa, promulgated in 1962, invoked by respondent city court in dismissing his petition has been overruled and abandoned by the promulgation of the Revised Rules of Court, which took effect in 1964.Section 1, Rule 92 of the Revised Rules of Court granting concurrent jurisdiction to the municipal and city courts with the Court of First Instance in the appointment of guardians, provides:Section 1.Where to institute proceedings. Guardianship of the person or estate of a minor or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court of the chartered city where the minor or incompetent person resides, and if he resides in a foreign country, in the Court of First Instance of the province wherein his property or part thereof is situated; provided, however, that where the value of the property of such minor or incompetent exceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance.In the City of Manila the proceedings shall be instituted in the Juvenile and Domestic Relations Court.The above section, in clear terms, grants concurrent jurisdiction between municipal and city court and Courts of First Instance in the appointment of guardians either with respect to the person or property of the minor or incompetent, except that where the value of the property of such minor or incompetent exceeds the jurisdiction of the municipal or city courts, the guardianship proceedings shall be instituted in the Court of First Instance. It is clear, therefore, that the value of the property of the minor or incompetent sought to be placed in guardianship determines which court has jurisdiction. And that property referred to is the individual estate of the minor so much so that when there are more than one minor or in competent sought to be placed under guardianship, what determines which court has jurisdiction is the value of the individual property of each minor or incompetent.In the case at bar, it appears that respondent city court dismissed the petition for guardianship on ground of lack of jurisdiction because a perusal of the record of the case shows that the undivided estate left by the deceased mother is worth P35,000.00 which amount is clearly outside its jurisdiction. This reasoning must be rejected for it overlooks the fact that the petition for guardianship filed by herein petitioner before the respondent city court clearly alleged that the individual estate or share of each of the seven minor children sought to be placed under guardianship is P5,000.00, which amount is well within the jurisdiction of the respondent city court (Section 88, Judiciary Act of 1948, as amended by R.A. No. 3828). That the respondent city court has jurisdiction over the case cannot be denied, for the rule is well-settled that jurisdiction of the court over the subject matter is determined by the allegations of the complaint and/or petition.1That each of the seven (7) minor children became owner of a one- seventh (1/7) share or an amount of P5,000 from the estate left by the deceased mother valued at P35,000.00 upon the death of the latter cannot also be denied for Article 777 of the New Civil Code expressly provides that "the rights to the succession are transmitted from the moment of death of the decedent," and from then on, the heir becomes the absolute owner of the decedent's property, subject of the rights and obligations of the decedent and he cannot be deprived of such right except by methods provided for by law.2Respondent city court, however, would also base its dismissal of the case in the light of this Court's ruling in the case of Delgado vs. Gamboa,supra, to the effect that the concurrence of jurisdiction between Courts of First Instance and inferior courts over guardianship of the minors or incompetents cannot be exercised when the estate has a value in excess of the jurisdictional amount for the latter courts. The respondent Court, however, overlooked one vital fact. A more careful examination of the facts of said case, decided in 1962, reveals that it involved guardianship proceeding over the person and property of three (3) minor children of decedent and an undivided estate valued at P7,000.00. That would make a share of P2,333.33 for each minor child, which amount is alsoin excessof the jurisdictional amount for inferior courts.3In the case at bar, there are seven (7) minor children to share in an undivided estate valued at P35,000.00 or a share of P5,000.00 for each minor, which amount iswell withinthe jurisdiction of the respondent city court,4which, therefore, cannot validly invoke the case of Delgado vs. Gamboa to support its dismissal of the petition for guardianship. For what is decisive is not the total value of the estate of the decedent, but the value of the individual share of each of the minor heirs for whom a guardian is sought to be appointed individually not collectively.But petitioner would contend, as raised in the second issue of this petition, that the doctrine laid down by this Court in the aforecited case of Delgado vs. Gamboa, has been overruled by the promulgation of the Revised Rules of Court, particularly Section 1 of Rule 92, He argued that the case of Delgado vs. Gamboa, promulgated on February 28, 1962, was decided when Section 1, Rule 93 of the former Rules of Court was still effective, which rule commands that guardianship shall be originally cognizable by the Court of First Instance; that when the Revised Rules of Court took effect on January 1, 1964, the institution of guardianship proceedings is now governed by Section 1 of Rule 92 which states that guardianship proceedings may be instituted in the Courts of First Instance or in the municipal courts.A perusal of the case of Delgado vs. Gamboa, decided when Section 1 of former Rule 93, as amended by R.A. No. 643, was still effective, shows that it merely restated and confirmed the doctrine laid down in the case of Morales vs. Marquez, G. R. No. L-7463, May 27, 1955, which in effect, expounded the grant of concurrent jurisdiction between inferior courts and Court of First Instance, as provided for by R.A. No. 643. And a comparison of the provisions of Section 1 of former Rule 93, as amended, and Section 1 of the present Rule 92 shows that the latter rule restates the former rule. Under the former rule, municipal or city courts have concurrent jurisdiction with the Court of First Instance in cases where the value of the property of such minor or incompetent falls within the jurisdiction of the former courts. Likewise, under the present rule, concurrent jurisdiction was also granted except that "where the value of the property of such minor or incompetent exceeds the jurisdiction of the inferior courts, the proceedings shall, be instituted in the Court of First Instance." The criterion, therefore, in determining in which court the guardianship proceeding shall be instituted under the provision of both the former Rule 93 and the present Rule 92 remains the same. Hence, it cannot be accurately stated that the Delgado ruling has been abandoned. In any case, the Delgado doctrine, as already demonstrated, does not militate against petitioner's contention that the City has jurisdiction over the instant guardianship case.Lastly, there is still one aspect of this case which must not be overlooked. It is not disputed that the respondent City Court has entertained and granted petitioner's petition for guardianship in its Order as early as May 10, 1971 and has exercised its jurisdiction by granting authority to petitioner to settle the estate extrajudicially and to sell a portion thereof consisting of shares of stock; that after the lapse of seven (7) years or on November 22, 1978, respondent City Court dismissed the case for lack of jurisdiction, revoked the appointment of petitioner as guardian and annulled all proceedings taken. Would it serve the interest of justice to dismiss the case at this stage and let a new petition for guardianship be filed in another court? To draw a tenuous jurisdictional line is to undermine stability in litigations. The time to be lost, effort wasted, anxiety augmented, additional expenses incurredthese are considerations which weigh heavily if this situation is allowed to happen. As aptly stated by the petitioner."To let the respondent court reverse its stand now will pave a pattern of judicial instability which, to reason and logic, is definitely not healthy administration of justice and not inducive of court's veneration."5IN VIEW OF THE FOREGOING, the Order of respondent City Court of December 5, 1978 dismissing the petition and the Order of December 27, 1978 denying petitioner's motion for reconsideration thereof are hereby set aside and the case is remanded to it for further proceedings. No costs. SO ORDERED.G.R. No. L-41715 June 18, 1976ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their father) who represents the minors,petitioners,vs.LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA, AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court of First Instance of Abra,respondents.MARTIN,J:This is a petition for review1of the Order of the Court of First Instance of Abra in Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for reconsideration of its order dismissing the complaint in the aforementioned case.On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title over certain parcels of land located in Abra.On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of the motion to dismiss, the counsel for the plaintiff moved to amend the complaint in order to include certain allegations therein. The motion to amend the complaint was granted and on July 17, 1975, plaintiffs filed their amended complaint.On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata Barcena, and asked for substitution by her minor children and her husband, the petitioners herein; but the court after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party in interest and has no legal personality to sue.On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the complaint and on August 23, 1975, he moved to set aside the order of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the Rules of Court.2On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written manifestation praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased mother, but the court denied the counsel's prayer for lack of merit. From the order, counsel for the deceased plaintiff filed a second motion for reconsideration of the order dismissing the complaint claiming that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the same was denied.Hence, this petition for review.The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil Case No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case up to its completion. The records of this case show that the death of Fortunata Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the court had acquired jurisdiction over her person. If thereafter she died, the Rules of Court prescribes the procedure whereby a party who died during the pendency of the proceeding can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a party to a pending case dies ... it shall be the duty of his attorney to inform the court promptly of such death ... and to give the name and residence of his executor, administrator, guardian or other legal representatives." This duty was complied with by the counsel for the deceased plaintiff when he manifested before the respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution of parties in the case. The respondent Court, however, instead of allowing the substitution, dismissed the complaint on the ground that a dead person has no legal personality to sue. This is a grave error. Article 777 of the Civil Code provides "that the rights to the succession are transmitted from the moment of the death of the decedent." From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law.3The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent.4The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings.5When Fortunata Barcena, therefore, died her claim or right to the parcels of land in litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff.Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased, within such time as may be granted ... ." The question as to whether an action survives or not depends on the nature of the action and the damage sued for.6In the causes of action which survive the wrong complained affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the property and rights of property affected being incidental.7Following the foregoing criterion the claim of the deceased plaintiff which is an action to quiet title over the parcels of land in litigation affects primarily and principally property and property rights and therefore is one that survives even after her death. It is, therefore, the duty of the respondent Court to order the legal representative of the deceased plaintiff to appear and to be substituted for her. But what the respondent Court did, upon being informed by the counsel for the deceased plaintiff that the latter was dead, was to dismiss the complaint. This should not have been done for under the same Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if the legal representative fails to appear, to order the opposing party to procure the appointment of a legal representative of the deceased. In the instant case the respondent Court did not have to bother ordering the opposing party to procure the appointment of a legal representative of the deceased because her counsel has not only asked that the minor children be substituted for her but also suggested that their uncle be appointed as guardianad litemfor them because their father is busy in Manila earning a living for the family. But the respondent Court refused the request for substitution on the ground that the children were still minors and cannot sue in court. This is another grave error because the respondent Court ought to have known that under the same Section 17, Rule 3 of the Rules of Court, the court is directed to appoint a guardianad litemfor the minor heirs. Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the respondent Court that the uncle of the minors be appointed to act as guardianad litemfor them. Unquestionably, the respondent Court has gravely abused its discretion in not complying with the clear provision of the Rules of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of parties in the case.IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil Case No. 856 of the Court of First Instance of Abra and the motions for reconsideration of the order of dismissal of said complaint are set aside and the respondent Court is hereby directed to allow the substitution of the minor children, who are the petitioners therein for the deceased plaintiff and to appoint a qualified person as guardianad litemfor them. Without pronouncement as to costs.SO ORDERED.G.R. No. L-41171 July 23, 1987INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEO-HERRERA,petitioner,vs.FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the Court of First Instance of Cebu, Branch II,respondents.x - - - - - - - - - - - - - - - - - - - - - - -xNo. L-55000 July 23, 1987IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR N. BORROMEO, MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO B. MORALES, AND CANUTO V. BORROMEO, JR.,heirs-appellants,vs.FORTUNATO BORROMEO,claimant-appellee.x - - - - - - - - - - - - - - - - - - - - - - -xNo. L-62895 July 23, 1987JOSE CUENCO BORROMEO,petitioner,vs.HONORABLE COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As presiding Judge of the (now) Regional Trial Court, Branch XV, Region VII, RICARDO V. REYES, as Administrator of the Estate of Vito Borromeo in Sp. Proc. No. 916-R, NUMERIANO G. ESTENZO and DOMINGO L. ANTIGUA,respondents.x - - - - - - - - - - - - - - - - - - - - - - -xNo. L-63818 July 23, 1987DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the Intestate Estate of VITO BORROMEO, Sp. Proceedings No. 916-R, Regional Trial Court of Cebu, joined by HON. JUDGE FRANCISCO P. BURGOS, as Presiding Judge of Branch XV of the Regional Trial Court of Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and NUMERIANO ESTENZO,petitioners,vs.HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO BORROMEO, and PETRA O. BORROMEO,respondents.x - - - - - - - - - - - - - - - - - - - - - - -xNo. L-65995 July 23, 1987PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and JOSE CUENCO BORROMEO,petitioners,vs.HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV, Regional Trial Court of Cebu; RICARDO V. REYES, Administrator of the Estate of VITO BORROMEO in Sp. Proc. No. 916-R; and DOMINGO L. ANTIGUA,respondents.GUTIERREZ, JR.,J.:These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First Instance of Cebu.G.R. No. 41171Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in Paranaque, Rizal at the age of 88 years, without forced heirs but leaving extensive properties in the province of Cebu.On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the probate of a one page document as the last will and testament left by the said deceased, devising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided shares, and designating Junquera as executor thereof. The case was docketed as Special Proceedings No. 916-R. The document, drafted in Spanish, was allegedly signed and thumbmarked by the deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted as witnesses.Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate court held that the document presented as the will of the deceased was a forgery.On appeal to this Court, the decision of the probate court disallowing the probate of the will was affirmed inTestate Estate of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et al. (19 SCRA 656).The testate proceedings was converted into an intestate proceedings. Several parties came before the court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo.The following petitions or claims were filed:1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a petition for declaration of heirs and determination of heirship. There was no opposition filed against said petition.2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as heir. The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to this petition.3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition for declaration of heirs and determination of shares. The petition was opposed by the heirs of Jose and Cosme Borromeo.4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda Borromeo Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim. Jose Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of Carlos Borromeo represented by Jose Talam filed oppositions to this claim.When the aforementioned petitions and claims were heard jointly, the following facts were established:1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having predeceased the former), were survived by their eight (8) children, namely,Jose Ma. BorromeoCosme BorromeoPantaleon BorromeoVito BorromeoPaulo BorromeoAnecita BorromeoQuirino Borromeo andJulian Borromeo2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his brothers and sisters predeceased him.3. Vito's brother Pantaleon Borromeo died leaving the following children:a. Ismaela Borromeo,who died on Oct. 16, 1939b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito Borromeo. He was married to Remedios Cuenco Borromeo, who died on March 28, 1968. He had an only son-Atty. Jose Cuenco Borromeo one of the petitioners herein.c. Crispin Borromeo, who is still alive.4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left an only daughter, Aurora B. Ocampo, who died on Jan. 30, 1950 leaving the following children:a. Anecita Ocampo Castrob. Ramon Ocampoc. Lourdes Ocampod. Elena Ocampo, all living, ande. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left the following children:a. Marcial Borromeob. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife, Remedios Alfonso, and his only daughter, Amelinda Borromeo Talamc. Asuncion Borromeod. Florentina Borromeo, who died in 1948.e. Amilio Borromeo, who died in 1944.f. Carmen Borromeo, who died in 1925.The last three died leaving no issue.6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and left the following children:a. Exequiel Borromeo,who died on December 29, 1949b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:aa. Federico Borromeobb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)cc. Canuto Borromeo, Jr.dd. Jose Borromeoee. Consuelo Borromeoff. Pilar Borromeogg. Salud Borromeohh. Patrocinio Borromeo Herrerac. Maximo Borromeo, who died in July, 1948d. Matilde Borromeo, who died on Aug. 6, 1946e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:aa. Maria Borromeo Ategabb. Luz Borromeocc. Hermenegilda Borromeo Nonnenkampdd. Rosario Borromeoee. Fe Borromeo QuerozOn April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring the following, to the exclusion of all others, as the intestate heirs of the deceased Vito Borromeo:1. Jose Cuenco Borromeo2. Judge Crispin Borromeo3. Vitaliana Borromeo4. Patrocinio Borromeo Herrera5. Salud Borromeo6. Asuncion Borromeo7. Marcial Borromeo8. Amelinda Borromeo de Talam, and9. The heirs of Canuto BorromeoThe court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided into 4/9 and 5/9 groups and distributed in equal and equitable shares among the 9 abovenamed declared intestate heirs.On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed an agreement of partition of the properties of the deceased Vito Borromeo which was approved by the trial court, in its order of August 15, 1969. In this same order, the trial court ordered the administrator, Atty Jesus Gaboya, Jr., to partition the properties of the deceased in the way and manner they are divided and partitioned in the said Agreement of Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall be segregated. All attorney's fees shall be taken and paid from this segregated portion.On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as heir under the forged will, filed a motion before the trial court praying that he be declared as one of the heirs of the deceased Vito Borromeo, alleging that he is an illegitimate son of the deceased and that in the declaration of heirs made by the trial court, he was omitted, in disregard of the law making him a forced heir entitled to receive a legitime like all other forced heirs. As an acknowledged illegitimate child, he stated that he was entitled to a legitime equal in every case to four-fifths of the legitime of an acknowledged natural child.Finding that the motion of Fortunato Borromeo was already barred by the order of the court dated April 12, 1969 declaring the persons named therein as the legal heirs of the deceased Vito Borromeo, the court dismissed the motion on June 25, 1973.Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to support his motion for reconsideration, Fortunato changed the basis for his claim to a portion of the estate. He asserted and incorporated a Waiver of Hereditary Rights dated July 31, 1967, supposedly signed by Pilar N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo, Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam In the waiver, five of the nine heirs relinquished to Fortunato their shares in the disputed estate. The motion was opposed on the ground that the trial court, acting as a probate court, had no jurisdiction to take cognizance of the claim; that respondent Fortunato Borromeo is estopped from asserting the waiver agreement; that the waiver agreement is void as it was executed before the declaration of heirs; that the same is void having been executed before the distribution of the estate and before the acceptance of the inheritance; and that it is voidab initioand inexistent for lack of subject matter.On December 24, 1974, after due hearing, the trial court concluding that the five declared heirs who signed the waiver agreement assigning their hereditary rights to Fortunato Borromeo had lost the same rights, declared the latter as entitled to 5/9 of the estate of Vito Borromeo.A motion for reconsideration of this order was denied on July 7, 1975.In the present petition, the petitioner seeks to annul and set aside the trial court's order dated December 24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo and the July 7, 1975 order, denying the motion for reconsideration.The petitioner argues that the trial court had no jurisdiction to take cognizance of the claim of respondent Fortunato Borromeo because it is not a money claim against the decedent but a claim for properties, real and personal, which constitute all of the shares of the heirs in the decedent's estate, heirs who allegedly waived their rights in his favor. The claim of the private respondent under the waiver agreement, according to the petitioner, may be likened to that of a creditor of the heirs which is improper. He alleges that the claim of the private respondent under the waiver agreement was filed beyond the time allowed for filing of claims as it was filed only sometime in 1973, after there had been a declaration of heirs (April 10, 1969), an agreement of partition (April 30, 1969), the approval of the agreement of partition and an order directing the administrator to partition the estate (August 15, 1969), when in a mere memorandum, the existence of the waiver agreement was brought out.It is further argued by the petitioner that the document entitled " waiver of Hereditary Rights" executed on July 31, 1967, aside from having been cancelled and revoked on June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo, is without force and effect because there can be no effective waiver of hereditary rights before there has been a valid acceptance of the inheritance the heirs intend to transfer. Pursuant to Article 1043 of the Civil Code, to make acceptance or repudiation of inheritance valid, the person must be certain of the death of the one from whom he is to inherit and of his right to the inheritance. Since the petitioner and her co-heirs were not certain of their right to the inheritance until they were declared heirs, their rights were, therefore, uncertain. This view, according to the petitioner, is also supported by Article 1057 of the same Code which directs heirs, devicees, and legatees to signify their acceptance or repudiation within thirty days after the court has issued an order for the distribution of the estate.Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the Civil Code there is no need for a person to be first declared as heir before he can accept or repudiate an inheritance. What is required is that he must first be certain of the death of the person from whom he is to inherit and that he must be certain of his right to the inheritance. He points out that at the time of the signing of the waiver document on July 31, 1967, the signatories to the waiver document were certain that Vito Borromeo was already dead as well as of their rights to the inheritance as shown in the waiver document itself.With respect to the issue of jurisdiction of the trial court to pass upon the validity of the waiver of hereditary rights, respondent Borromeo asserts that since the waiver or renunciation of hereditary rights took place after the court assumed jurisdiction over the properties of the estate it partakes of the nature of a partition of the properties of the estate needing approval of the court because it was executed in the course of the proceedings. lie further maintains that the probate court loses jurisdiction of the estate only after the payment of all the debts of the estate and the remaining estate is distributed to those entitled to the same.The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in an existing inheritance cannot be considered as belonging to third persons with respect to the heirs, who by fiction of law continue the personality of the former. Nor do such properties have the character of future property, because the heirs acquire a right to succession from the moment of the death of the deceased, by principle established in article 657 and applied by article 661 of the Civil Code, according to which the heirs succeed the deceased by the mere fact of death. More or less, time may elapse from the moment of the death of the deceased until the heirs enter into possession of the hereditary property, but the acceptance in any event retroacts to the moment of the death, in accordance with article 989 of the Civil Code. The right is vested, although conditioned upon the adjudication of the corresponding hereditary portion." (Osorio v. Osorio and Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their hereditary rights in 1967 even if the order to partition the estate was issued only in 1969.In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be effective. For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the knowledge of the existence thereof; and (3) an intention to relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must be shown clearly and convincingly, and when the only proof of intention rests in what a party does, his act should be so manifestly consistent with, and indicative of an intent to, voluntarily relinquish the particular right or advantage that no other reasonable explanation of his conduct is possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).The circumstances of this case show that the signatories to the waiver document did not have the clear and convincing intention to relinquish their rights, Thus: (1) On October 27, 1967. Fortunato, Tomas, and Amelia Borromeo filed a pleading entitled "Compliance" wherein they submitted a proposal for the amicable settlement of the case. In that Compliance, they proposed to concede to all the eight (8) intestate heirs of Vito Borromeo all properties, personal and real, including all cash and sums of money in the hands of the Special Administrator, as of October 31, 1967, not contested or claimed by them in any action then pending in the Court of First Instance of Cebu. In turn, the heirs would waive and concede to them all the 14 contested lots. In this document, the respondent recognizes and concedes that the petitioner, like the other signatories to the waiver document, is an heir of the deceased Vito Borromeo, entitled to share in the estate. This shows that the "Waiver of Hereditary Rights" was never meant to be what the respondent now purports it to be. Had the intent been otherwise, there would not be any reason for Fortunato, Tomas, and Amelia Borromeo to mention the heirs in the offer to settle the case amicably, and offer to concede to them parts of the estate of the deceased; (2) On April 21 and 30, 1969, the majority of the declared heirs executed an Agreement on how the estate they inherited shall be distributed. This Agreement of Partition was approved by the trial court on August 15, 1969; (3) On June 29, 1968, the petitioner, among others, signed a document entitled Deed of Assignment" purporting to transfer and assign in favor of the respondent and Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights, interests, and participation as an intestate heir in the estate of the deceased Vito Borromeo. The stated consideration for said assignment was P100,000.00; (4) On the same date, June 29, 1968, the respondent Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment) in turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in the same deed of assignment. The stated consideration was P50,000.00; (5) A Cancellation of Deed of Assignment and Deed of Reconveyance was signed by Tomas Borromeo and Amelia Borromeo on October 15, 1968, while Fortunato Borromeo signed this document on March 24, 1969.With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction to pass upon the validity of the waiver agreement. It must be noted that in Special Proceedings No. 916-R the lower court disallowed the probate of the will and declared it as fake. Upon appeal, this Court affirmed the decision of the lower court on March 30, 1967, in G.R. No. L-18498. Subsequently, several parties came before the lower court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo. We see no impediment to the trial court in exercising jurisdiction and trying the said claims or petitions. Moreover, the jurisdiction of the trial court extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate.In view of the foregoing, the questioned order of the trial court dated December 24, 1974, is hereby SET ASIDE.G.R. No. 55000This case was originally an appeal to the Court of Appeals from an order of the Court of First Instance of Cebu, Branch 11, dated December 24, 1974, declaring the waiver document earlier discussed in G.R. No. 41171 valid. The appellate court certified this case to this Court as the questions raised are all of law.The appellants not only assail the validity of the waiver agreement but they also question the jurisdiction of the lower court to hear and decide the action filed by claimant Fortunato Borromeo.The appellants argue that when the waiver of hereditary right was executed on July 31, 1967, Pilar Borromeo and her children did not yet possess or own any hereditary right in the intestate estate of the deceased Vito Borromeo because said hereditary right was only acquired and owned by them on April 10, 1969, when the estate was ordered distributed.They further argue that in contemplation of law, there is no such contract of waiver of hereditary right in the present case because there was no object, which is hereditary right, that could be the subject matter of said waiver, and, therefore, said waiver of hereditary right was not only null and voidab initiobut was inexistent.With respect to the issue of jurisdiction, the appellants contend that without any formal pleading filed by the lawyers of Fortunato Borromeo for the approval of the waiver agreement and without notice to the parties concerned, two things which are necessary so that the lower court would be vested with authority and jurisdiction to hear and decide the validity of said waiver agreement, nevertheless, the lower court set the hearing on September 25, 1973 and without asking for the requisite pleading. This resulted in the issuance of the appealed order of December 24, 1974, which approved the validity of the waiver agreement. The appellants contend that this constitutes an error in the exercise of jurisdiction.The appellee on the other hand, maintains that by waiving their hereditary rights in favor of Fortunato Borromeo, the signatories to the waiver document tacitly and irrevocably accepted the inheritance and by virtue of the same act, they lost their rights because the rights from that moment on became vested in Fortunato Borromeo.It is also argued by the appellee that under Article 1043 of the Civil Code there is no need for a person to be declared as heir first before he can accept or repudiate an inheritance. What is required is that he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. At the time of the signing of the waiver document on July 31, 1967, the signatories to the waiver document were certain that Vito Borromeo was already dead and they were also certain of their right to the inheritance as shown by the waiver document itself.On the allegation of the appellants that the lower court did not acquire jurisdiction over the claim because of the alleged lack of a pleading invoking its jurisdiction to decide the claim, the appellee asserts that on August 23, 1973, the lower court issued an order specifically calling on all oppositors to the waiver document to submit their comments within ten days from notice and setting the same for hearing on September 25, 1973. The appellee also avers that the claim as to a 5/9 share in the inheritance involves no question of title to property and, therefore, the probate court can decide the question.The issues in this case are similar to the issues raised in G.R. No. 41171. The appellants in this case, who are all declared heirs of the late Vito Borromeo are contesting the validity of the trial court's order dated December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo under the waiver agreement.As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be validated. The essential elements of a waiver, especially the clear and convincing intention to relinquish hereditary rights, are not found in this case.The October 27, 1967 proposal for an amicable settlement conceding to all the eight (8) intestate heirs various properties in consideration for the heirs giving to the respondent and to Tomas, and Amelia Borromeo the fourteen (14) contested lots was filed inspite of the fact that on July 31, 1967, some of the heirs had allegedly already waived or sold their hereditary rights to the respondent.The agreement on how the estate is to be distributed, the June 29, 1968 deed of assignment, the deed of reconveyance, and the subsequent cancellation of the deed of assignment and deed of reconveyance all argue against the purported waiver of hereditary rights.Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that the trial court acquired jurisdiction to pass upon the validity of the waiver agreement because the trial court's jurisdiction extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate.The questioned order is, therefore, SET ASIDE.G.R. No. 62895A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative of some of the heirs-distributees, praying for the immediate closure of Special Proceeding No. 916-R. A similar motion dated May 29, 1979 was filed by Atty. Jose Amadora. Both motions were grounded on the fact that there was nothing more to be done after the payment of all the obligations of the estate since the order of partition and distribution had long become final.Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the aforesaid motions, petitioner Jose Cuenco Borromeo-filed a petition for mandamus before the Court of Appeals to compel the respondent judge to terminate and close Special Proceedings No. 916-R.Finding that the inaction of the respondent judge was due to pending motions to compel the petitioner, as co-administrator, to submit an inventory of the real properties of the estate and an accounting of the cash in his hands, pending claims for attorney's fees, and that mandamus will not lie to compel the performance of a discretionary function, the appellate court denied the petition on May 14, 1982. The petitioner's motion for reconsideration was likewise denied for lack of merit. Hence, this petition.The petitioner's stand is that the inaction of the respondent judge on the motion filed on April 28, 1972 for the closure of the administration proceeding cannot be justified by the filing of the motion for inventory and accounting because the latter motion was filed only on March 2, 1979. He claimed that under the then Constitution, it is the duty of the respondent judge to decide or resolve a case or matter within three months from the date of its submission.The respondents contend that the motion to close the administration had already been resolved when the respondent judge cancelled all settings of all incidents previously set in his court in an order dated June 4, 1979, pursuant to the resolution and restraining order issued by the Court of Appeals enjoining him to maintain status quo on the case.As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed an agreement of partition of the properties of the deceased Vito Borromeo which was approved by the trial court, in its order dated August 15, 1969. In this same order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to partition the properties of the deceased in the way and manner they are divided and partitioned in the said Agreement of Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall be segregated and reserved for attorney's fees.According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p. 197, Rollo, G. R. No. 41171) his court has not finally distributed to the nine (9) declared heirs the properties due to the following circumstances:1. The court's determination of the market value of the estate in order to segregate the 40% reserved for attorney's fees;2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of the 5/9 of the estate because of the waiver agreement signed by the heirs representing the 5/9 group which is still pending resolution by this Court (G.R. No. 4117 1);3. The refusal of administrator Jose Cuenco Borromeo to render his accounting; and4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of notices oflis pendenson the different titles of the properties of the estate.Since there are still real properties of the estate that were not vet distributed to some of the declared heirs, particularly the 5/9 group of heirs due to the pending resolution of the waiver agreement, this Court in its resolution of June 15, 1983, required the judge of the Court of First Instance of Cebu, Branch 11, to expedite the determination of Special Proceedings No. 916-R and ordered the co-administrator Jose Cuenco Borromeo to submit an inventory of real properties of the estate and to render an accounting of cash and bank deposits realized from rents of several properties.The matter of attorney's fees shall be discussed in G.R. No. 65995.Considering the pronouncements stated in:1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated December 24, 1974;2. G.R. No. 63818, denying the petition for review seeking to modify the decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo and ordering the remand of the case to the Executive,Judge of the Regional trial Court of Cebu for re-raffling; and3. G.R. No. 65995, granting the petition to restrain the respondents from further acting on any and all incidents in Special proceedings No. 916-11 because of the affirmation of the decision of the Intermediate Appellate Court in G.R. No. 63818.the trial court may now terminate and close Special Proceedings No. 916-R, subject to the submission of an inventory of the real properties of the estate and an accounting of the call and bank deposits of the petitioner, as co-administrator of the estate, if he has not vet done so, as required by this Court in its Resolution dated June 15, 1983. This must be effected with all deliberate speed.G.R. No. 63818On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a motion for inhibition in the Court of First Instance of Cebu, Branch 11, presided over by Judge Francisco P. Burgos to inhibit the judge from further acting in Special Proceedings No. 916-R. 'The movants alleged, among others, the following:x x x x x x x x x6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the production of the certificates of title and to deposit the same with the Branch Clerk of Court, presumably for the ready inspection of interested buyers. Said motion was granted by the Hon. Court in its order of October 2, 1978 which, however, became the subject of various motions for reconsideration from heirs-distributees who contended that as owners they cannot be deprived of their titles for the flimsy reasons advanced by Atty, Antigua. In view of the motions for reconsideration, Atty Antigua ultimately withdraw his motions for production of titles.7. The incident concerning the production of titles triggered another incident involving Atty. Raul H. Sesbreno who was then the counsel of herein movants Petra O. Borromeo and Amelinda B. Talam In connection with said incident, Atty. Sesbreno filed a pleading which the tion. presiding, Judge Considered direct contempt because among others, Atty. Sesbreno insinuated that the Hon. Presiding Judge stands to receive "fat commission" from the sale of the entire property. Indeed, Atty. Sesbreno was seriously in danger of being declared in contempt of court with the dim prospect of suspension from the practice of his profession. But obviously to extricate himself from the prospect of contempt and suspension. Atty. Sesbreno chose rapproachment and ultimately joined forces with Atty. Antigua, et al., who, together, continued to harass administratorx x x x x x x x x9. The herein movants are informed and so they allege, that a brother of the Hon. Presiding Judge is married to a sister of Atty. Domingo L. Antigua.10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are agitating for the sale of the entire estate or to buy out the individual heirs, on the one hand, and the herein movants, on the other, who are not willing to sell their distributive shares under the terms and conditions presently proposed. In this tug of war, a pattern of harassment has become apparent against the herein movants, especially Jose Cuenco Borromeo. Among the harassments employed by Atty Antigua et al. are the pending motions for the removal of administrator Jose Cuenco Borromeo, the subpoenaduces tecumissued to the bank which seeks to invade into the privacy of the personal account of Jose Cuenco Borromeo, and the other matters mentioned in paragraph 8 hereof. More harassment motions are expected until the herein movants shall finally yield to the proposed sale. In such a situation, the herein movants beg for an entirely independent and impartial judge to pass upon the merits of said incidents.11. Should the Hon. Presiding Judge continue to sit and take cognizance of this proceeding, including the incidents above-mentioned, he is liable to be misunderstood as being biased in favor of Atty Antigua, et al. and prejudiced against the herein movants. Incidents which may create this impression need not be enumerated herein. (pp. 39-41, Rollo)The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for reconsideration having been denied, the private respondents filed a petition for certiorari and/or prohibition with preliminary injunction before the Intermediate Appellate Court.In the appellate court, the private respondents alleged, among others, the following:x x x x x x x x x16. With all due respect, petitioners regret the necessity of having to state herein that respondent Hon. Francisco P. Burgos has shown undue interest in pursing the sale initiated by Atty. Domingo L. Antigua, et al. Significantly, a brother of respondent Hon. Francisco P. Burgos is married to a sister of Atty. Domingo L. Antigua.17. Evidence the proposed sale of the entire properties of the estate cannot be legally done without the conformity of the heirs-distributees because the certificates of title are already registered in their names Hence, in pursuit of the agitation to sell, respondent Hon. Francisco P. Burgos urged the heirs-distributees to sell the entire property based on the rationale that proceeds thereof deposited in the bank will earn interest more than the present income of the so called estate. Most of the heirs-distributees, however. have been petitioner timid to say their piece. Only the 4/9 group of heirs led by Jose Cuenco Borromeo have had the courage to stand up and refuse the proposal to sell clearly favored by respondent Hon. Francisco P. Burgos.x x x x x x x x x20. Petitioners will refrain from discussing herein the merits of the shotgun motion of Atty. Domingo L. Antigua as well as other incidents now pending in the court below which smack of harassment against the herein petitioners. For, regardless of the merits of said incidents, petitioners respectfully contend that it is highly improper for respondent Hon. Francisco P. Burgos to continue to preside over Sp. Proc. No. 916-R by reason of the following circumstances:(a) He has shown undue interest in the sale of the properties as initiated by Atty. Domingo L. Antigua whose sister is married to a brother of respondent.(b) The proposed sale cannot be legally done without the conformity of the heirs-distributees, and petitioners have openly refused the sale, to the great disappointment of respondent.(c) The shot gun motion of Atty. Antigua and similar incidents are clearly intended to harass and embarrass administrator Jose Cuenco Borromeo in order to pressure him into acceding to the proposed sale.(d) Respondent has shown bias and prejudice against petitioners by failing to resolve the claim for attorney's fees filed by Jose Cuenco Borromeo and the late Crispin Borromeo. Similar claims by the other lawyers were resolved by respondent after petitioners refused the proposed sale. (pp. 41-43, Rollo)On March 1, 1983, the appellate court rendered its decision granting the petition for certiorari and/or prohibition and disqualifying Judge Francisco P. Burgos from taking further cognizance of Special Proceedings No. 916-R. The court also ordered the transmission of the records of the case to the Executive Judge of the Regional Trial Court of Region VII for re-raffling.A motion for reconsideration of the decision was denied by the appellate court on April 11, 1983. Hence, the present petition for review seeking to modify the decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the case of Intestate Estate of Vito Borromeo and orders the remand of the case to the Executive Judge of the Regional Trial Court of Cebu for re-raffling.The principal issue in this case has become moot and academic because Judge Francisco P. Burgos decided to retire from the Regional Trial Court of Cebu sometime before the latest reorganization of the judiciary. However, we decide the petition on its merits for the guidance of the judge to whom this case will be reassigned and others concerned.The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They contend that Judge Burgos has benn shown unusual interest in the proposed sale of the entire estate for P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim that this disinterest is shown by the judge's order of March 2, 1979 assessing the property of the estate at P15,000,000.00. They add that he only ordered the administrator to sell so much of the properties of the estate to pay the attorney's fees of the lawyers-claimants. To them, the inhibition of Judge Burgos would have been unreasonable because his orders against the failure of Jose Cuenco Borromeo, as administrator, to give an accounting and inventory of the estate were all affirmed by the appellate court. They claim that the respondent court, should also have taken judicial notice of the resolution of this Court directing the said judge to "expedite the settlement and adjudication of the case" in G.R. No. 54232. And finally, they state that the disqualification of judge Burgos would delay further the closing of the administration proceeding as he is the only judge who is conversant with the 47 volumes of the records of the case.Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered that Judge Burgos appointed Ricardo V. Reyes as co-administrator of the estate on October 11, 1972, yet Borromeo was singled out to make an accounting of what t he was supposed to have received as rentals for the land upon which the Juliana Trade Center is erected, from January, 1977 to February 1982, inclusive, without mentioning the withholding tax for the Bureau of Internal Revenue. In order to bolster the agitation to sell as proposed by Domingo L. Antigua, Judge Burgos invited Antonio Barredo, Jr., to a series of conferences from February 26 to 28, 1979. During the conferences, Atty. Antonio Barredo, Jr., offered to buy the shares of the heirs-distributees presumably to cover up the projected sale initiated by Atty. Antigua.On March 2, 1979, or two days after the conferences, a motion was filed by petitioner Domingo L. Antigua praying that Jose Cuenco Borromeo be required to file an inventory when he has already filed one to account for cash, a report on which the administrators had already rendered: and to appear and be examined under oath in a proceeding conducted by Judge Burgos lt was also prayed that subpoenaduces tecumbe issued for the appearance of the Manager of the Consolidated Bank and Trust Co., bringing all the bank records in the name of Jose Cuenco Borromeo jointly with his wife as well as the appearance of heirs-distributees Amelinda Borromeo Talam and another heir distributee Vitaliana Borromeo. Simultaneously with the filing of the motion of Domingo Antigua, Atty. Raul H. Sesbreno filed a request for the issuance of subpoenaduces tecumto the Manager of Consolidated Bank and 'Trust Co., Inc.; Register of Deeds of Cebu City; Register of Deeds for the Province of Cebu and another subpoenaduces tecumto Atty. Jose Cuenco Borromeo.On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the Managert of the bank, the Register of deeds for the City of Cebu, the Register of Deeds for the Province, of Cebu. and to Jose Cuenco Borromeo.On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the heirs of Marcial Borromeo who had a common cause with Atty Barredo, Jr., joined petitioner Domingo L. Antigua by filing a motion for relief of the administrator.On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoenaduces tecumto private respondent Jose Cuenco Borromeo to bring and produce all the owners" copies of the titles in the court presided order by Judge Burgos.Consequently. the Branch Clerk of Court issued a subpoenaduces tecumcommanding Atty. Jose Cuenco Borromeo to bring and produce the titles in court.All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979, before the date of the hearing, Judge Burgos issued an order denying the private respondents' motion for reconsideration and the motion to quash the subpoena.1avvphi1It was further argued by the private respondents that if ,judge Francisco P. Burgos is not inhibited or disqualified from trying Sp. Proc. No. 916-R, there would be a miscarriage of justice Because for the past twelve years, he had not done anything towards the closure of the estate proceedings except to sell the properties of the heirs-distributees as initiated by petitioner Domingo L. Antigua at 6.7 million pesos while the Intestate Court had already evaluated it at 15 million pesos.The allegations of the private respondents in their motion for inhibition, more specifically, the insistence of the trial judge to sell the entire estate at P6,700,000.00, where 4/9 group of heirs objected, cannot easily be ignored. Suspicion of partiality on the part of a trial judge must be avoided at all costs. In the case ofBautista v. Rebeuno(81 SCRA 535), this Court stated:... The Judge must maintain and preserve the trust and faith of the parties litigants. He must hold himself above reproach and suspicion. At the very first sign of lack of faith and trust to his actions, whether well grounded or not, the Judge has no other alternative but inhibit himself from the case. A judge may not be legally Prohibited from sitting in a litigation, but when circumstances appear that will induce doubt to his honest actuations and probity in favor or of either partly or incite such state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the Courts of Justice is not impaired, "The better course for the Judge under such circumstances is to disqualify himself "That way he avoids being misunderstood, his reputation for probity and objectivity is preserve ed. what is more important, the Ideal of impartial administration of justice is lived up to.In this case, the fervent distrust of the private respondents is based on sound reasons. As Earlier stated, however, the petition for review seeking to modify the decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo case and ordering the remand of the case to the Executive Judge of the Regional Trial Court for re-raffling should be DENIED for the decision is not only valid but the issue itself has become moot and academic.G.R. No. 65995The petitioners seek to restrain the respondents from further acting on any and all incidents in Special Proceedings No. 916-R during the pendency of this petition and No. 63818. They also pray that all acts of the respondents related to the said special proceedings after March 1, 1983 when the respondent Judge was disqualified by the appellate court be declared null and void and without force and effect whatsoever.The petitioners state that the respondent Judge has set for hearing all incidents in Special Proceedings No. 916-R, including the reversion from the heirs-distributees to the estate, of the distributed properties already titled in their names as early as 1970, notwithstanding the pending inhibition case elevated before this Court which is docketed as G.R. No. 63818.The petitioners further argue that the present status of Special Proceeding No. 916-R requires only the appraisal of the attorney's fees of the lawyers-claimants who were individually hired by their respective heirs-clients, so their attorney's fees should be legally charged against their respective clients and not against the estate.On the other hand, the respond