Mang-oy vs. Court of Appeals

A will that has not been probated cannot pass real or personal property, but the same instrument may be sustained as a partition inter vivos under Article 1056 of the Civil Code of 1899, and the beneficiaries' written agreement to carry out its terms binds them, insofar as the partition does not prejudice the legitime of forced heirs.

Old Man Tumpao, a resident of La Trinidad, Benguet, had three children by his first wife—the private respondents—and, after her death, took a second wife who had no issue by him but had two children she had adopted according to Igorot practice; petitioners are among the children of those adopted children and other persons. The dispute concerns land in Barrio Pico, La Trinidad, covered by Title No. 416 in Old Man Tumpao's name. At the time of the instruments in question, the Civil Code of 1899 was in force, and the Administrative Code of Mindanao and Sulu had not been extended to the Mountain Province.

Old Man Tumpao had a first wife by whom he begot three children: Bando Tumpao, Lambia Tumpao (married to Salming Pirazo), and Abito Tumpao, the private respondents. After his first wife's death, he took a second wife, by whom he had no issue; she had two children she had "adopted" according to the practice of the Igorots then. It is their children, with some others, who are the petitioners: Anita Mang-oy, assisted by her husband William Mang-oy; Leonora Miguel, assisted by her husband Miguel Olila; Helena Taynan; and Jose Tumpao. The dispute concerns land in Barrio Pico, La Trinidad, Benguet, covered by Title No. 416 in Old Man Tumpao's name.

On September 4, 1937, Old Man Tumpao executed a document he called a "last will and testament" at Pico, La Trinidad, Benguet. Its dispositive portion appointed his son Bando Tumpao to carry out or fulfill his testament after his death and gave him power to see and dispose of all that he had stated, without changing what he had stated. Because he did not know how to read and write, he affixed his right thumbmark after the document had been read to him and he affirmed it before those present. The contents were read to the beneficiaries named in the document, who at the time were already occupying the portions respectively allotted to them.

On September 7, 1937, the named children and beneficiaries executed an agreement before a notary public in Baguio. The agreement stated that they had heard and understood the will of their father Tumpao, who was then ill, concerning their right to inherit and the lands included in Title No. 416; that they recognized and agreed to the appointment of their brother Bando, to whom the parcels of land were to be delivered and who would deliver their shares as soon as they demanded partition in accordance with the will; that Bando would answer the expenses when the land was surveyed so that each share would be segregated and the title approved in each name; and that they would not dispute the land they were actually working, which would pertain to them as embodied in the will. They affixed their right thumbmarks because they did not know how to read and write. Two days later, Old Man Tumpao died.

The parties remained in possession of the lots assigned to them, apparently in obedience to Old Man Tumpao's wish as expressed in the document and affirmed by the agreement. In 1960, twenty-three years later, on November 4, 1960, the respondents executed an extrajudicial partition dividing Old Man Tumpao's property among the three of them only, to the exclusion of the other persons mentioned in the 1937 documents. By virtue of this partition, Old Man Tumpao's title was cancelled and another title was issued in favor of the three respondents. Petitioners then sued for reconveyance.

The trial court found that the will alone would be inoperative because it was not probated, but that the persons named as heirs and beneficiaries had voluntarily agreed in writing to abide by its terms, probably to save the expenses of probate, and had carried out those terms after the testator's death. It also found that what the plaintiffs received had an aggregate area of less than one-third of Old Man Tumpao's land—about 11,000 square meters while the total area was more than 35,000 square meters—and that under the old Civil Code this was within the free disposable portion despite the existence of forced heirs. The property in dispute had been registered in 1917.

• Probate of the Will: Whether the "last will and testament" of Old Man Tumpao, not having been probated, is operative to pass real or personal property.
• Partition Inter Vivos under Article 1056: Whether the same document may be sustained as a partition inter vivos under Article 1056 of the Civil Code of 1899 despite not being probated as a will.
• Binding Effect of the Beneficiaries' Agreement: Whether the September 7, 1937 agreement among the named beneficiaries binds them to the dispositions in the document despite formal defects and the absence of approval by the Director of the Bureau of Non-Christian Tribes.
• Prescription and Curing of Formal Defects: Whether the right to assail the agreement had prescribed and whether any formal defect was cured by lapse of time.
• Ownership, Conjugal Nature, and Rentals: Whether the disputed land may be claimed by respondents as the conjugal property of their mother and Old Man Tumpao, and whether respondents are entitled to retain the entire land or collect rentals from petitioners.
• Reconveyance: Whether petitioners are entitled to reconveyance of their respective shares.

• Probate of the Will: No. The will, not having been probated as required by law, was inoperative as such; no will shall pass real or personal property unless proved or allowed in court.
• Partition Inter Vivos under Article 1056: Yes. The document may be sustained under Article 1056 of the Civil Code of 1899, which was in force in 1937, as a partition inter vivos insofar as it does not prejudice the legitime of forced heirs.
• Binding Effect of the Beneficiaries' Agreement: Yes. The beneficiaries' written agreement to abide by and carry out the terms of the document binds them; it was not a disposal of inheritance by a prospective heir before the testator's death but an agreement to carry out the will. Approval by the Director of the Bureau of Non-Christian Tribes was not required because the Administrative Code of Mindanao and Sulu was not extended to the Mountain Province, and the document was not a conveyance of property or property right.
• Prescription and Curing of Formal Defects: Yes. The right to assail the agreement prescribed under Article 1144 after the lapse of 25 years, and any formal defect was cured by lapse of time.
• Ownership, Conjugal Nature, and Rentals: No. The property having been registered in 1917, the presumption is that it was acquired during the second marriage; respondents cannot claim it as the conjugal property of their mother and Old Man Tumpao and are not entitled to retain the entire land or collect rentals for the lots occupied by petitioners.
• Reconveyance: Yes. The trial court correctly ordered reconveyance to petitioners of their respective shares, and its decision was reinstated in toto.

• Probate of the Will: The Court sustained both the trial court and the Court of Appeals that the instrument, not having been probated as required by law, was inoperative as a will. The settled principle, as announced in a long line of decisions in accordance with the Rules of Court, is that no will shall pass either real or personal property unless it is proved or allowed in court. Thus, the "last will and testament" could not operate as a will to pass property.
• Partition Inter Vivos under Article 1056: Although inoperative as a will, the document may be sustained under Article 1056 of the Civil Code of 1899, in force when executed in 1937. That article provides that if the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand insofar as it does not prejudice the legitime of the forced heirs. The Court agreed with the trial court and found Albela vs. Albela applicable. In Albela, Agustin Albela executed a deed of partition in 1935 dividing land between his daughters, who signed and took possession; years later one daughter challenged it. The Court of Appeals, through Justice J.B.L. Reyes, held the objections invalid because Article 1056 of the Civil Code of 1889 authorizes a testator to partition inter vivos his property and distribute it among his heirs; such partition is not necessarily a donation or testament but an instrument of special character, sui generis, revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until his death. It derives binding force on the heirs from respect due to the will of the owner, limited only by creditors and the intangibility of the legitime. It is not governed by the rules of wills or donations inter vivos; it need not comply with the solemn formalities of wills or the special formalities of donations because it is not a gratuitous disposition but a division of property already disposed of in legal form. It was sufficient that the partition be in writing; it need not be in a public document except to affect third persons, being valid between the parties who signed it. The Court found no difference in legal effect between Albela's deed and Old Man Tumpao's "last will and testament"; both are sustainable under Article 1056. Even as Albela's partition was signed by the daughters, Old Man Tumpao's "will" was affirmed by the beneficiaries in their September 7, 1937 agreement, which reiterated and recognized its terms.
• Binding Effect of the Beneficiaries' Agreement: While not valid as a partition inter vivos under Articles 816 and 1271 of the old Civil Code, the agreement was nevertheless binding on the parties as proof of their conformity to the dispositions made by Old Man Tumpao in his "last will and testament." The trial court's reasoning was adopted: the will alone would be inoperative because not probated, but when the persons named as heirs and beneficiaries voluntarily agreed in writing to abide by its terms—probably to save expenses of probate—and carried out its terms after the testator's death until then, it must be held binding between them. The agreement was not a disposal of inheritance by a prospective heir before the testator's death, but an agreement to carry out the will. The Court added that approval by the Director of the Bureau of Non-Christian Tribes was not required because the Administrative Code of Mindanao and Sulu was not extended to the Mountain Province, and the document was not a conveyance of properties or property right.
• Prescription and Curing of Formal Defects: The agreement was not contested by the defendants, and after the lapse of 25 years their right, if any, to assail it had prescribed under Article 1144 of the Civil Code, which requires actions upon a written contract, an obligation created by law, or a judgment to be brought within ten years from accrual. Any formal defect of the deed was cured by the lapse of time.
• Ownership, Conjugal Nature, and Rentals: The property in dispute having been registered in 1917, the presumption is that it was acquired during the second marriage and so cannot be claimed by respondents as the conjugal property of their mother and Old Man Tumpao. Hence, they are not entitled to retain the entire land as their exclusive inheritance or to collect rentals for the lots occupied by petitioners. The trial court also found that what the plaintiffs received had an aggregate area of less than one-third of Old Man Tumpao's land—about 11,000 square meters while the total area was more than 35,000 square meters—and under the old Civil Code this was within the free disposable portion of one's estate despite the existence of forced heirs (old Civil Code, Art. 808).
• Reconveyance: The trial judge, the Hon. Feliciano Belmonte, was correct in ordering reconveyance to petitioners of their respective shares. The Supreme Court affirmed his decision in toto, including the order for defendants to execute a deed of conveyance in favor of plaintiffs of the areas respectively owned and occupied by them, the order for Sucdad Butiog to pay defendants P160.00 more as a reasonable amount of his additional share in the expenses of segregating his lot while defendants were ordered to execute a deed of conveyance in his favor of the said lot, and the order that expenses of survey and segregation be borne by plaintiffs. Costs were against respondents.

• Partition inter vivos by the testator (Article 1056, Civil Code of 1899) — A testator may partition his property by an act inter vivos or by will; the partition stands insofar as it does not prejudice the legitime of forced heirs. Such a partition is not necessarily a donation or a testament but an instrument of special character, sui generis; it is revocable by the causante during his lifetime and does not operate as a conveyance of title until his death. It binds the heirs from respect due to the will of the owner, limited by creditors and the legitime. It is not governed by the formalities of wills or donations inter vivos; it need only be in writing and need not be public except to affect third persons. Applied: Old Man Tumpao's unprobated "will" was sustained as a partition inter vivos under Article 1056 because it did not prejudice legitime and was affirmed by the beneficiaries.
• Probate requirement for wills — No will shall pass either real or personal property unless it is proved or allowed in court. Applied: the instrument, not having been probated, was inoperative as a will.
• Binding effect of beneficiaries' agreement to carry out a will — When persons named as heirs or beneficiaries voluntarily agree in writing to abide by the terms of a will and carry out those terms after the testator's death, the agreement binds them, even if the will itself was not probated. It is not a disposal of inheritance by a prospective heir before the testator's death but an agreement to carry out the will. Applied: the September 7, 1937 agreement bound the parties.
• Prescription and cure of formal defects — Actions upon a written contract, an obligation created by law, or a judgment must be brought within ten years from accrual under Article 1144. A formal defect in a deed may be cured by lapse of time. Applied: after 25 years, the right to assail the agreement prescribed and any formal defect was cured.
• Non-requirement of approval by the Director of the Bureau of Non-Christian Tribes — Approval was not required because the Administrative Code of Mindanao and Sulu was not extended to the Mountain Province, and the document was not a conveyance of properties or property right. Applied: the agreement's validity was not defeated by lack of such approval.
• Presumption from registration date as to conjugal property — Where property was registered in 1917, the presumption is that it was acquired during the second marriage; it cannot be claimed as conjugal property of the first marriage. Applied: respondents could not claim the land as conjugal property of their mother and Old Man Tumpao, nor retain the entire land or collect rentals.

• "The settled principle, as announced in a long line of decisions in accordance with the Rules of Court, is that no will shall pass either real or personal property unless it is proved or allowed in court." — States the probate requirement, which made the instrument inoperative as a will.
• "We find, however, that the document may be sustained on the basis of Article 1056 of the Civil Code of 1899, which was in force at the time the said document was executed by Old Man Tumpao in 1937." — Identifies the alternative basis for sustaining the instrument as a partition inter vivos.
• "The will alone, 'Exh. B', would be inoperative for the simple reason that it was not probated, However, when the persons who were named therein as heirs and beneficiaries voluntarily agreed in writing to abide by its terms probably to save the expenses of probate. and furthermore, carried out its terms after the death of the testator until now, then it must be held to be binding between them." — Adopted trial court reasoning that the beneficiaries' written agreement binds them despite lack of probate.
• "It remains to state that the property in dispute having been registered in 1917, the presumption is that it was acquired during the second marriage and so cannot be claimed by the respondents as the conjugal property of their mother and Old Man Tumpao." — Resolves ownership and rentals against respondents.

• Albela vs. Albela, C.A.-G.R. No. 5583-R, June 20, 1951 — The Court of Appeals decision, ponente Justice J.B.L. Reyes, was the applicable precedent; it sustained a deed of partition inter vivos under Article 1056 of the old Civil Code as a sui generis act not governed by the formalities of wills or donations, and the Supreme Court found no difference in legal effect between it and Old Man Tumpao's document.
• Guevara vs. Guevara, 74 Phil. 492; Guevara vs. Guevara and Quinto, 98 Phil. 250; Mendoza vs. Pilapil, 72 Phil. 546; Baluyot vs. Patio, 71 SCRA 86; Manirang vs. Court of Appeals, 114 SCRA 478; Roberts vs. Leonides, 129 SCRA 33 — Cited in the footnote for the settled principle that no will shall pass either real or personal property unless it is proved or allowed in court.
• Legasto vs. Verzosa, 54 Phil. 766 — Cited in Albela for the proposition that an invalidity could be alleged for absence of a previous testament preceding the partition, though this may not be indispensable where the partition did not depart from the shares allotted by intestacy.
• Bambao vs. Lednisky, 1 SCRA 330; Malaguit vs. Alipio, 12 SCRA 95 — Cited for the non-requirement of approval by the Director of the Bureau of Non-Christian Tribes because the Administrative Code of Mindanao and Sulu was not extended to the Mountain Province.
• Mangayao vs. Lasud, 11 SCRA 158; Miguel vs. Catalino, 26 SCRA 234 — Cited for the proposition that the document was not a conveyance of properties or property right.

• Article 1056, Civil Code of 1899 — Provides that if the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand insofar as it does not prejudice the legitime of the forced heirs. The Court applied it to sustain Old Man Tumpao's 1937 document as a partition inter vivos despite lack of probate.
• Article 1144, Civil Code — Requires actions upon a written contract, an obligation created by law, or a judgment to be brought within ten years from accrual. The Court applied it to hold that after 25 years the right to assail the agreement had prescribed and any formal defect was cured by lapse of time.
• Article 808, old Civil Code — Governs the free disposable portion of an estate despite forced heirs. The trial court found that the aggregate area received by plaintiffs—about 11,000 square meters out of more than 35,000 square meters—was less than one-third of the land and within the free disposable portion.
• Articles 816 and 1271, old Civil Code — Cited by the Court as provisions under which the agreement was not valid as a partition inter vivos, although it remained binding on the parties as proof of their conformity to the dispositions in the "last will and testament."
• Administrative Code of Mindanao and Sulu — Not extended to the Mountain Province; therefore, approval by the Director of the Bureau of Non-Christian Tribes was not required for the agreement.
• Rules of Court (probate requirement) — The Court cited the settled principle that no will shall pass either real or personal property unless it is proved or allowed in court; the instrument was inoperative as a will for lack of probate.
• Article 1280, old Civil Code — Mentioned in the Albela excerpt: a partition need not be in a public document except to affect third persons, being valid between the parties who signed it. The Court relied on this reasoning to uphold the agreement between the parties.

Yap (Chairman), Narvasa, Melencio-Herrera, and Feliciano, JJ., concur.