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[G.R. No. 5314. October 2, 1911. ]

PILAR SALUNGA, ET AL., Plaintiffs-Appellants, v. EMILIANO C. EVANGELISTA, ET AL., Defendants-Appellees.

Mariano Lim, for Appellants.

Arcadio Rosario, for Appellees.


1. ESTATES; RESCISSION OR NULLIFICATION OF PARTITION. — The nullity provided by article 1081 of the Civil Code of a partition made with a person who was erroneously supposed to be an heir, does not apply in a case where the division was made with persons who were not only believed to be heirs but who were so in fact by virtue of a judicial order which declared them to be such and which was consented to by other persons who might have and yet did not either impugn such declaration or at any time prove any defect therein.

2. ID.; ID. — Nullification of the partition is not provided by the code except for the case mentioned in article 1081; for all the other cases, in articles 1074 to 1078, inclusive, it provides only rescission. Although rescission and nullification often produce practically the same result, yet in fact and in a strictly legal sense they are different actions, for nullity presupposes that the division has never been made while rescission presupposes it to have been properly made even though later declared void. A petition to declare the partition void on account of damages is not admissible.

3. ID.; ID. — A petition to rescind the division wholly and absolutely is also inadmissible for two reasons: because the first paragraph of article 1077 provides that the defendant heir may choose between indemnifying for the damage or consenting to a new division, and because the third paragraph provides that if a new division is made it shall not include either those who have not been prejudiced or those who did not receive more than was proper.

4. ID.; ID. — Nor does action for rescission of the partition lie because part of the hereditary estate was omitted therefrom, for the omission of one or more objects or securities of the inheritance does not, under article 1079, give rise to the rescission of the partition by reason of lesion but only to completion or increase of the estate with the objects or securities omitted.

5. ID.; ID.; NATURAL GUARDIAN OR LEGAL REPRESENTATIVE OF MINOR CHILDREN. — In the absence of the father, the mother exercises parental authority over her minor children and is their legal representative in law and in fact.

6. ID.; ID.; ID. — Article 1060 of the Civil Code, which dispenses with judicial approval when either parent represents the minor children in the division of an inheritance, means no more than what it says: it does not mean that the minors shall always be subjected to the parental authority, nor that they shall be represented solely by such parent by virtue of his parental authority.

7. ID.; ID.; ID.; CONFLICT OF INTERESTS BETWEEN PARENT AND CHILD. — When the interest of either parent in the partition conflicts with that of the children under his parental authority, such parent can not represent them therein, but, according to article 165 of the Civil Code, a third party will be appointed to represent them in law and in fact.

8. ID.; ID.; ID.; ID. — When there is no conflict of interest between the parent and the children under his parental authority, he may legally represent them in the partition.

9. ID.; ID.; ID.; ID. — Article 165 of the Civil Code does not become applicable merely because the parent and the children under his parental authority are both interested in an inheritance.



The object sought by the complaint filed in this suit, on February 18, 1907, is the annulment of the partition of an estate, agreed upon and signed on July 8, 1895, and recorded in a public instrument on October 23 of the same year.

The estate is shown to have been left by Santiago Canciller Evangelista, who, during his lifetime, contracted three marriages; one, on October 3, 1863, with Eusebia Sangco; another, on October 6, 1877, with Antonia Alonso; and the third, on November 8, 1886, with Pilar Salunga.

The first marriage did not last long, for Eusebia Sangco died on January 18, 1865. There was no issue by this marriage, and no property.

The second marriage lasted six years. Between the 18th of January, 1865, when the first wife died, and the 6th of October, 1877, when Santiago C. Evangelista contracted his second marriage with Antonia Alonso, there elapsed more than twelve years and eight months, during which time Santiago C. Evangelista had by this same Antonia Alonso, he being a widower and she a spinster, five children, named Emiliano, Ygnacia, Pedro, Ambrosio and Luisa, all of them having the status of natural children, the first born on February 9, 1867, and the last, on June 21, 1876. During his marriage with this woman, he had three other children, Quintin, Juan and Graciana; making a total of eight children.

By the third marriage, with Pilar Salun
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