There certainly was no real trial, inasmuch as the defendants, instead of answering the complaint of the plaintiffs, confined themselves to filing a demurrer based on the ground that the facts alleged in the complaint do not constitute a cause of action. However, the judge preferred to absolve the defendants, thereby making an end to the cause, instead of dismissing the same, because undoubtedly he believed, in view of the controversy between the parties, that the arguments adduced to support the demurrer would be the same which the defendants would allege in their answerthose dealing with a mere question of law which the courts would have to decideand that, the demurrer having been sustained, if the plaintiffs should insistthey could do no lessupon alleging the same facts as those set out in their complaint and if another demurrer were afterwards set up, he would be obliged to dismiss said complaint with costs against the plaintiffsin spite of being undoubtedly convinced in the instant case that the plaintiffs absolutely lack the right to bring the action stated in their complaint.Being of the opinion that the emendation of the indicated defects is not necessaryas in this case what has been done does not prejudice the partiesthe appellate court will now proceed to decide the suit according to its merits, as found in the record and to the legal provisions applicable to the question of law in controversy so that unnecessary delay and greater expense may be avoided, inasmuch as, even if all the ordinary proceedings be followed, the suit would be subsequently decided in the manner and terms that it is now decided in the opinion thoughtfully and conscientiously formed for its determination.In order to decide whether the plaintiff's are or are not entitled to invoke, in their favor, the provisions of article 811 of the Civil Code, and whether the same article is applicable to the question of law presented in this suit, it is necessary to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of reservable property; and, if so, whether in accordance with the provision of the Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who inherited said property from her son Apolonio Florentino III (born after the death of his father Apolonio Isabelo) had the obligation to preserve and reserve same for the relatives, within the third degree, of her aforementioned deceased son Apolonio III.The above mentioned article reads:"Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came."During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two children were born, namely the defendant Mercedes Florentino and Apolonio Florentino III (born after the death of his father). At the death of Apolonio Isabelo Florentino under a will, his eleven children succeeded to the inheritance he left, one of whom, the posthumos son Apolonio III, was given, as his share, the aforementioned property enumerated in the complaint. In 1891 the said posthumos son Apolonio Florentino III died and was succeeded by his legitimate mother Severina Faz de Leon, who inherited the property he left and who on dying, November 18, 1908, instituted by will as her sole heiress her surviving daughter, Mercedes Florentino, the defendant herein, who took possession of all property left by her father, same constituting the inheritance. Included in said inheritance is the property, specified in paragraph 5 of the complaint, which had been inherited by the posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino, and which, at the death of the said posthumos son, had in turn been inherited by his mother, Severina Faz de Leon. Even if Severina left in her will said property,. together with her own, to her only daughter and forced heiress, Mercedes Florentino, nevertheless this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his legimate mother and ascendant, Severina Faz de Leon.The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II. Although said property was inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line from which such property came.According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the obligation to reserve and preserve same for certain designated persons who, on the death of the said ascendantsreservists, (taking into consideration the nature of the line from which such property came) acquire the ownership of said property in fact and by operation of law in the same manner as forced heirs(because they are also such}said property reverts to said line as long as the aforementioned persons who, from the death of the ascendantreservists, acquire in fact the right ofreservatarios(persons for whom property is reserved), and are relatives, within the third degree, of the descendant from whom the reservable property came.Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He is, however, the legitimate owner of his own property which is not reservable property and which constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards, all of the relatives, within the third degree, of the descendant (from whom came the reservable property) die or disappear, the said property becomes free property, by operation of law, and is thereby converted into the legitime of the ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the relatives, calledreservatarios,who belonged within the third degree to the line f rom which such property came.Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, calledreservatario,over the property which thereservista(person holding it subject to reservation) 'should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claming same as areservatarioof the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never be considered asreservatarios,since the law does not recognize them as such.In spite of what has been said relative to the right of representation on the part of one alleging his right asreservatariowho is not within the third degree of relationship, nevertheless there is right of representation on the part ofreservatarioswho are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. Thesereservatarioshave the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in accordance with article 811 of the Civil Code.In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and Magdalena are the legitimate children of the first marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel, Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo Florentino II, and children of his deceased son, Jose Florentino; that the same have the right to represent their aforementioned f ather, Jose Florentino; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased Espirita Florentino, one of the daughters of the deceased Apolonio Isabelo Florentino II, and represent the right of their aforementioned mother; and that the other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate father Pedro Florentino, one of the sons of the aforementioned Apolonio Isabelo Florentino II. It is a fact, admitted by both parties, that the other children of the first marriage of the deceased Apolonio Isabelo Florentino II died without issue so that this decision does not deal with them.There are then seven "reservatarios" who are entitled to the reservable property left at the death of Apolonio III; the posthumos son of' the aforementioned Apolonio Isabelo II, to wit, his three children of his first marriageEncarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own twelve children respectively; and Mercedes Florentino, his daughter by a second marriage. All of the plaintiffs are the relatives of the deceased posthumos son, Apolonio Florentino III, within the third degree (four of whom being his halfbrothers and the remaining twelve being his nephews as they are the children of his three half-brothers). As the first four are his relatives within the third degree in their own right and the other twelve are such by representation, all of them are indisputably entitled asreservatariosto the property which came from the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his life-time, and in turn by inheritance to his legitimate mother, Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II.In spite of the provision of article 811 of the Civil Code already cited, the trial judge refused to accept the theory of the plaintiffs and, accepting that of the defendants, absolved the latter from the complaint on the ground that said article is absolutely inapplicable to the instant case, inasmuch as the def endant Mercedes Florentino survived her brother, Apolonio III, from whom the reservable property came and her mother, Severina Faz de Leon, the widow of her father, Apolonio Isabelo Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de Leon, is likewise her forced heiress; that when she inherited the property left at the death of her mother, together with that which came from her deceased brother Apolonio III, the fundamental object of article 811 of the Code was thereby complied with, inasmuch as the danger that the property coming from the same line might fall into the hands of strangers had been avoided; and that the hope or expectation on the part of the plaintiffs of the right to acquire the property of the deceased Apolonio III never did come into existence because there is a forced heiress who is entitled to such property.The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the system of legitimate succession and that the pretension of the plaintiffs to apply said article in the instant case would be permitting the reservable right to reduce and impair the forced legitime which exclusively belongs to the defendant Mercedes Florentino, in violation of the precept of article 813 of the same Code which provides that the testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he impose upon it any burden, condition, or substitution of any kind whatsoever, saving the provisions concerning the usufruct of the surviving spouse, citing the decision of the Supreme CourtofSpain of January 4, 1911.The principal question submitted to the court for decision consists mainly in determining whether the property left at the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not invested with the character of reservable property when it was received by his mother, Severina Faz de Leon.The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt whatsoever, from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue, the.same passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property, in accordance with the provision of article 811 of the Code, with the o object that the same should not fall into the possession of persons other than those comprehended within the order of succession traced by the law from Apolonio Isabelo II, the source of said property. If this property was in fact clothed with the character and condition of reservable property when Severina Faz de Leon inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only the right of usufruct or of fiduciary, with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes Florentino.Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista), in which case said reservable property losses such character.With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her will concerning the reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the otherreservatarios,the half brothers and nephews of her daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her own and she has only the right of usufruct or of fiduciary, with the obligation to preserve and to deliver same to thereservatarios,one of whom is her own daughter, Mercedes Florentino.It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the reservable property, received during lifetime by Severina Faz de Leon from her son, Apolonio III, constitutes or forms part of the legitime pertaining to Mercedes Florentino. If said property did not come to be the legitimate and exclusive property of Severina Faz de Leon, her only legitimate and forced heiress, the defendant Mercedes, could not inherit all by operation of law and in accordance with the order of legitimate succession, because the other relatives of the deceased Apolonio III, within the third degree, as well as herself are entitled to such reservable property.For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the inheritance of her mother Severina Faz de Leon, has been reduced and impaired; and the application of article 811 of the Code to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled to a part only of the reservable property, there being no lawfull or just reason which serves as real foundation to disregard the right to Apolonio III's other relatives, within the third degree, to participate in the reservable property in question. As these relatives are at present living, claiming for it with an indisputable right, we cannot find any reasonable and lawful motive why their rights should not be upheld and why they should not be granted equal participation with the defendant in the litigated property.The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes, the property received from the deceased son Apolonio III lost the character, previously held, of reservable property; and that the mother, the said Severina, therefore, had no further obligation to reserve same for the relatives within the third degree of the deceased Apolonio III, is evidently erroneous for the reason that, as has been already stated, the reservable property, left in a will by the aforementioned Severina to her only daughter Mercedes, does not form part of the inheritance left by her death nor of the legitimate of the heiress Mercedes. Just because she has a forced heiress, with a right to her inheritance, does not relieve Severina of her obligation to reserve the property which she received from her deceased son, nor did same lose the character of reservable property, held before thereservatariosreceived same.It is true that when Mercedes Florentino, the heiress of thereservistaSeverina, took possession of the property in question, same did not pass into the hands of strangers. But it is likewise true that the said Mercedes is not the onlyreservataria.And there is no reason founded upon law and upon the principle of justice why the otherreservatarios,the other brothers and nephews, relatives within the third degree in accordance with the precept of article 811 of the Civil Code, should be deprived of portions of the property which, as reservable property, pertain to them.From the foregoing it has been shown that the doctrine announced by the Supreme Court of Spain on January 4, 1911, for the violation of articles 811, 968 and consequently of the Civil Code is not applicable in the instant case.Following the provisions of article 813, the Supreme Court of Spain held that the legitime of the forced heirs cannot be reduced or impaired and said article is expressly respected in this decision.However, in spite of the efforts of the appellee to defend their supposed rights, it has not been shown, upon any legal foundation, that the reservable property belonged to, and was under the absolute dominion of, thereservista,there being relatives within the third degree of the person. from whom same came; that said property, upon passing into the hands of the forced heiress of the deceasedreservista,formed part of the legitime of the former; and that the said forced heiress, in addition to being areservataria,had an exclusive right to receive all of said property and to deprive the otherreservatarios,her relatives within the third degree, of certain portions thereof.Concerning the prayer in the complaint relative to the indemnity for damages and the delivery of the fruits collected, it is not proper to grant the first for there is no evidence of any damage which can give rise to the obligation of refunding same. As to the second, the delivery of the fruits produced by the land forming the principal part of the reservable property, the defendants are undoubtedly in duty bound to deliver to the plaintiffs six-sevenths of the fruits or rents of the portions of land claimed in the complaint, in the quantity expressed in paragraph 11 of the same, from January 17, 1918, the date the complaint was filed; and the remaining seventh part should go to the defendant Mercedes.For the foregoing reasons it follows that with the reversal of the order of decision appealed from we should declare, as we hereby do, that the aforementioned property, inherited by the deceased Severina Faz de Leon from her .son Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III within the third degree, are entitled to six-sevenths of said reservable property; that the defendant Mercedes is entitled to the remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from said portion of the land and, of the quantity claimed, from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in the complaint is denied, without special findings as to the costs of both instances. So ordered.Arellano, C. J.,Johnson,Araullo,Street,Malcolm,andAvancea, JJ.,concur.Order reversed.

No. L-34395.May 19, 1981.*BEATRIZ L. GONZALES, petitioner,vs.COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDEZ, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DONA FILOMENA ROCKS DE LEGARDA, respondents.Appeal;In an appeal under Republic Act No. 5440 only legal issues can be raised.In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts Since on the basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are subject toreserva troncal,that is the only legal issue to be resolved in this appeal.Property;Succession;Reserva Troncal explained.Inreserva troncal,(1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) and who belong to the line from which the said property came.Same;Same;Same.So, three transmissions are involved: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva)in favor of another ascendant, the reservor orreservista,which two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant.Same;Same;Same.The persons involved inreserva troncalare (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant orprepositus(propositus) who received the property, (3) the reservor (reservista),the other ascendant who obtained the property from theprepositusby operation of law and (4) the reservee (reservatario) who is within the third degree from theprepositusand who belongs to the line (linea o tronco) from which the property came and for whom the property should be reserved by the reservor.Same;Same;The reservor is a usufructuary of the reservable property and holds title subject to a resolutory condition.The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property.He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferees rights are revoked upon the survival of the reservees at the time of the death of the reservor but become indefeasible when the reservees predecease the reservor.Same;Same;The reservee has only an inchoate right. He cannot impugn a conveyance made by the reservor.On the other hand, the reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecease the reservee. The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser.Same;Same;A reservee may sell his right but may not renounce it.There is a holding that the renunciation of the reservees right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there is a dictum that the reservees right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee survives the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353).Same;Same;Case at bar involve a reserva troncal.In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees or relatives within the third degree of theprepositusFilomena Legarda were living or they survived Mrs. Legarda.Same;Same;All reservees are equally entitled to share in reserva troncal.This Court noted that, while it is true that by giving the reservable property to only one reservee it did not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor wasonly one of the reservees and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in the reservable property(pp. 894-5).APPEAL from the decision of the Court of First Instance of Manila.The facts are stated in the opinion of the Court.AQUINO,J.:Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance of Manila, dismissing her complaint for partition, accounting, reconveyance and damages and holding, as not subject toreserva troncal,the properties which her mother Filomena Roces inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are as follows: Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died in Manila on June 17, 1933. He was survived by his widow, Filomena Roces, and their seven children: four daughters named Beatriz, Rosario, Teresa and Filomena and three sons named Benito, Alejandro and Jose.On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y De la Paz who were represented by Benito F. Legarda.Filomena Legarda y Roces died intestate and without issue on March 19, 1943. Her sole heiress was her mother, Filomena Roces Vda. de Legarda.Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. The said properties consist of the following:(a) Savings deposit in the National City Bank of New York with a credit balance of P3,699.63.(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty Company, Insular Life Assurance Company and theManila Times.(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260, 80261 and 57512 of the Manila registry of deeds.1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds;l/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now Quezon City; l/14th of the property described in TCT No. 966 of the registry of deeds of Baguio;l/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila registry of deeds;l/7th of the lots and improvements at 181 San Rafael described in TCT Nos. 50495 and 48161 of the Manila registry of deeds;l/7th of the property described in TCT No. 48163 of the Manila registry of deeds (Streets);l/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of deeds (Streets and Estero);2/21st of the property described in TCT No. 13458 of the registry of deeds of Tayabas.These are the properties in litigation in this case. As a result of the affidavit of adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda as co-owner of the properties heldproindivisoby her other six children.Mrs. Legarda on March 6, 1953 executed two handwritten identical documents wherein she disposed of the properties, which she inherited from her daughter, in favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The document reads:A mis hijos.Dispongo que se reparta a todos mis nietos, hijos de Ben, Mandu y Pepito, los bienes que he heredado de mi difunta hija Filomena y tambien los acciones de la Destileria La Rosario recientemente comprada a los hermanos Valdes Legarda.De los bienes de mi hija Filomena se deducira un lote de terreno que yo he donada a las Hijas de Jesus, en Guipit.La casa No. 181 San Rafael, la cedo a mi hijo Mandu, solo la casa; proque ella esta construida sobre terreno de los hermanos Legarda Roces.(Sgd.) FILOMENA ROCES LEGARDA6 Marzo 1953During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving children partitioned the properties consisting of the one-third share in the estate of Benito Legarda y Tuason which the children inherited in representation of their father, Benito Legarda y De la Paz.Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila in Special Proceeding No. 70878, Testate Estate of Filomena Roces Vda. de Legarda. The decree of probate was affirmed by the Court of Appeals inLegarda vs. Gonzales,CA-G.R. No. 43480-R, July 30, 1976.In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix, filed on May 20, 1968 a motion to exclude from the inventory of her mothers estate the properties which she inherited from her deceased daughter, Filomena, on the ground that said properties arereservableproperties which should be inherited by Filomena Legardas three sisters and three brothers and not by the children of Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito F. Legarda.Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20, 1968 an ordinary civil action against her brothers, sisters, nephews and nieces and her mothers estate for the purpose of securing a declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her grandchildren to the ex elusion of her three daughters and her three sons (SeePaz vs. Madrigal,100 Phil. 1085).As already stated, the lower court dismissed the action of Mrs. Gonzales. In this appeal under Republic Act No. 5440 she contends in her six assignments of error that the lower court erred in not regarding the properties in question as reservable properties under article 891 of the Civil Code.On the other hand, defendants-appellees in their six counter-assignments of error contend that the lower court fired in not holding that Mrs. Legarda acquired the estate of her daughter Filomena Legarda in exchange for her conjugal and hereditary shares in the estate of her husband Benito Legarda y De la Paz and in not holding that Mrs. Gonzales waived her right to the reservable properties and that her claim is barred by estoppel, laches and prescription.The preliminary issue raised by the private respondents as to the timeliness of Mrs. Gonzales petition for review is a closed matter. This Court in its resolution of December 16, 1971 denied respondents motion to dismiss and gave due course to the petition for review.In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts. Since on the basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are subject toreserva troncal,that is the only legal issue to be resolved in this appeal.The other issues raised by the defendants-appellees, particularly those involving factual matters, cannot be resolved in this appeal. As the trial court did not pass upon those issues, there is no ruling which can be reviewed by this Court.The question is whether the disputed properties are reservable properties under article 891 of the Civil Code, formerly article 811, and whether Filomena Roces Vda. de Legarda could dispose of them in her will in favor of her grandchildren to the exclusion of her six children.Did Mrs. Legarda have the right to conveymortis causawhat she inherited from her daughter Filomena to the reservees within thethird degreeand to bypass the reservees in thesecond degreeor should that inheritance automatically go to the reservees in the second degree, the six children of Mrs. Legarda?As will hereinafter be shown that is not a novel issue or a question of first impression. It was resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability to this case of the doctrine in theFlorentinocase and other pertinent rulings, it may be useful to make a brief discourse on the nature ofreserva troncal,also calledlineal familiar, extraordinaria o semi-troncal.Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature ofreserva troncal,which together with thereserva viudalandreversion legal,was abolished by the Code Commission to prevent the decedents estate from being entailed, to eliminate the uncertainty in ownership caused by the reservation (which uncertainty impedes the improvement of the reservable property) and to discourage the confinement of property within a certain family for generations which situation allegedly leads to economic oligarchy and is incompatible with the socialization of ownership.The Code Commission regarded thereservasas remnants of feudalism which fomented agrarian unrest. Moreover, the reservas,insofar as they penalize legitimate relationship, is considered unjust and inequitable.However, the lawmaking body, not agreeing entirely with the Code Commission, restored thereserva troncal,a legal institution which, according to Manresa and Castan Tobeas, has provoked questions and doubts that are difficult to resolve.Reserva troncalis provided for in article 811 of the Spanish Civil Code, now article 891, which reads:ART. 811. El ascendiente que heredare de su descendiente bienes que este hubiese adquirido por titulo lucrativo de otro ascendiente, o de un hermano, se halla obligado a reservar los que hubiere adquirido por ministerio de la ley en favor de los parientes que esten dentro del tercer grado y pertenezcan a la linea de donde los bienes proceden.ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.Inreserva troncal,(1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant (prepositus) and who belong to the line from which the said property came.So, three transmissions are involved: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor orreservista,which two transmissions precede the reservation, and (3) a third transmissions of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Tobeas. Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9).If there are only two transmissions there is noreserva.Thus, where one Bonifacia Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should be inherited by his half-sister, to the exclusion of his maternal first cousins. The said lands are not reservable property within the meaning of article 811 (Lacerna vs. Vda. de Corcino,111 Phil. 872).The persons involved inreserva troncalare (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant orprepositus(propositus) who received the property, (3) the reservor (reservista),the other ascendant who obtained the property from theprepositusby operation of law and (4) the reservee (reservatario) who is within the third degree from theprepositusand who belongs to the line (linea o tronco)from which the property came and for whom the property should be reserved by the reservor.The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez,101 Phil. 1098;Chua vs. Court of First Instance of Negros Occidental,L-29901, August 31, 1977,78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor,72 Phil. 392).The rationale ofreserva troncalis to avoid el peligro de que bienes poseidos secularmente por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de los enlaces y muertes prematuras, or impedir que, por un azar de la vida, personas extraas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella (6 Castan Tobenas, Derecho Civil, Part 1, 6th Ed., 1980, p. 203;Padura vs. Baldovino,104 Phil. 1065).An illustration ofreserva troncalis found inEdroso vs. Sablan,25 Phil. 295. In that case, Pedro Sablan inherited two parcels of land from his father Victoriano. Pedro died in 1902, single and without issue. His mother, Marcelina Edroso, inherited from him the two parcels of land.It was held that the land was reservable property in the hands of Marcelina. The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, theprepositus.Marcelina could register the land under the Torrens system in her name but the fact that the land was reservable property in favor of her two brothers-in-law, should they survive her, should be noted in the title.In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a parcel of conjugal land was inherited by her daughter, Juliana Maalac. When Juliana died intestate in 1920, said one-half share was inherited by her father, Anacleto Maalac who owned the other one-half portion.Anacieto died intestate in 1942, survived by his second wife and their six children. It was held that the said one-half portion was reservable property in the hands of Anacleto Maalac and, upon his death, should be inherited by Leona Aglibot and Evarista Aglibot, sisters of Maria and maternal aunts of Juliana Maalac, who belonged to the line from which said onehalf portion came (Aglibot vs. Maalac,114 Phil. 964).Other illustrations ofreserva tronvalare found inFlorentino vs. Florentino,40 Phil. 480;Nieva and Alcala vs. Alcala and Deocampo,41 Phil. 915;Maghirang and Gutierrez vs. Halcita,46 Phil. 551;Lunsod vs. Ortega,46 Phil. 664;Dizon vs. Galang,48 Phil. 601,Riosa vs. Rocha,48 Phil. 737;Centeno vs. Centeno,52 Phil. 322;Velayo Bernardo vs. Siojo,58 Phil. 89;Director of Lands vs. Aguas,63 Phil. 279;Fallorfina vs. Abille, CA 39 O.G. 1784.The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revoked by descent. He is called theprepositus(Cabardo vs. Villanueva.44 Phil. 186, 190)In theCabardocase, one Cornelia Abordu inherited property from her mother, Basilio Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. In his hands, the property was reservable property. Upon the death of Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest relative within the third degree.First cousins of theprepositusare in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino,40 Phil. 480).Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from theprepositus(Padura vs. Baldovino,104 Phil. 1065).Reserva troncalcontemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded.Gratuitous title ortitulo lucrativorefers to a transmission wherein the recipient gives nothing in return such as donation and succession (Cabardo vs. Villanueva,44 Phil. 186, 189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 1951, p. 360).Thereservacreates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the property came (Sienes vs. Esparcia,111 Phil. 349, 353).The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferees rights are revoked upon the survival of the reservees at the time of the death of the reservor but become indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia,111 Phil. 349, 353;Edroso vs. Sablan,25 Phil. 295:Lunsod vs. Ortega,46 Phil. 664;Florentino vs. Florentino,40 Phil. 480;Director of Lands vs. Aguas,63 Phil. 279.) The reservors title has been compared with that of the vendeea retroin apacto de retrosale or to afideicomiso conditional.The reservors alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservors death, there are reservees, the transferee of the property should deliver it to the reservees.If there are no reservees at the time of the reservors death, the transferees title would become absolute. (Lunsod vs. Ortega,46 Phil. 664;Gueco vs. Lacson,118 Phil. 944;Nono vs. Nequia,93 Phil. 120).On the other hand, the reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecease the reservee.The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha,48 Phil. 737;Edroso vs. Sablan,25 Phil. 295, 312-3;Gueco vs. Lacson,118 Phil. 944).There is a holding that the renunciation of the reservees right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo,58 Phil. 89, 96).And there is a dictum that the reservees right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee survives the reservor (Sienes vs. Esparcia,111 Phil. 349, 353).Thereservatarioreceives the property as a conditional heir of the descendant (prepositus),said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during thereservistaslifetime. The authorities are all agreed that there beingreservatariosthat survive thereservista,the latter must be deemed to have enjoyed no more than a life interest in the reservable property. (J.J.B.L. Reyes in Cano vs. Director of Lands,105 Phil. 1, 5.) Even during thereservistaslifetime, thereservatarios,who are the ultimate acquirers of the property, can already assert the right to prevent thereservistafrom doing anything that might frustrate their reversionary right, and, for this purpose, they can compel the annotation of their right in the registry of property even while thereservistais alive (Ley Hipotecaria de Ultramar, Arts. 168, 199;Edroso vs. Sablan,25 Phil. 295).This right is incompatible with the mere expectancy that corresponds to the natural heirs of thereservista.It is likewise clear that the reservable property is no part of the estate of thereservista who may not dispose of them (it) by will, so long as there are reservatarios existing(Arroyo vs. Gerona,58 Phil. 226, 237).The latter, therefore, do not inherit from thereservistabut from the descendantprepositus,of whom thereservatariosare the heirsmortis causa,subject to the condition that they must survive thereservista.(Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited byJ.J.B.L. Reyes in Padura vs. Baldovino,L-11960, December 27, 1958,104 Phil. 1065).Hence, upon thereservistasdeath, thereservatarionearest to theprepositusbecomes, automatically and by operation of law, the owner of the reservable property. (Cano vs.Director of Lands,105 Phil. 1, 5.)In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees or relatives within the third degree of theprepositusFilomena Legarda were living or they survived Mrs. Legarda.So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable properties by will ormortis causato the reservees within thethird degree(her sixteen grandchildren) to the exclusion of the reservees in thesecond degree,her three daughters and three sons.As indicated at the outset, that issue is alreadyres judicataorcosa juzgada.We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cabardo vs. Villanueva,44 Phil. 186, 191). The reservor cannot make a dispositionmortis causaof the reservable properties as long as the reservees survived the reservor.As repeatedly held in theCanoandPaduracases, the reservees inherit the reservable properties from theprepositus,not from the reservor.Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from thepreposituswho in this case are the six children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein.To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the reservees in thethird degreeand, consequently, to ignore the reservees in thesecond degreewould be a glaring violation of article 891. That testamentary disposition cannot be allowed.We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino, 40 Phil. 480, a similar case, where it was ruled:Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the latters lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation of its delivery to the relatives, within the third degree, of the predecessor in interest (prepositus),without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time the right of areservatario(reservee).In theFlorentinocase, it appears that Apolonio Florentino II and his second wife Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two inherited properties from their father. Upon Apolonio IIIs death in 1891, his properties were inherited by his mother, Severina, who died in 1908. In her will, she instituted her daughter Mercedes as heiress to all her properties, including those coming from her deceased husband through their son, Apolonio III.The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the descendants of the deceased children of his first marriage, sued Mercedes Florentino for the recovery of their share in the reservable properties, which Severina de Leon had inherited from Apolonio III, which the latter had inherited from his father Apolonio II and which Severina willed to her daughter Mercedes.Plaintiffs theory was that the said properties, as reservable properties, could not be disposed of in Severinas will in favor of Mercedes only. That theory was sustained by this Court.It was held that the said properties, being reservable properties, did not form part of Severinas estate and could not be inherited from her by her daughter Mercedes alone.As there were seven reservees, Mercedes was entitled, as a reservee, to one-seventh of the properties. The other six-sevenths portions were adjudicated to the other six reservees.Under the rule ofstare decisis et non quieta movere,we are bound to follow in this case the doctrine of theFlorentinocase. That doctrine means that as long as during the reservors lifetime and upon his death there are relatives within the third degree of theprepositus,regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reservee to whom the reservable property should be awarded.The alleged opinion of Sanchez Roman that there is noreserva troncalwhen the only relatives within the third degree are the common descendants of the predeceased ascendant and the ascendant who would be obliged to reserve is irrelevant and sans binding force in the light of the ruling in theFlorentinocase.It is contended by the appellees herein that the properties in question are not reservable properties because only relatives within the third degree from the paternal line have survived and that when Mrs. Legarda willed the said properties to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda and who belong to the paternal line, the reason for thereserva troncalhas been satisfied: to prevent persons outside a family from securing, by some special accident of life, property that would otherwise have remained therein.That same contention was advanced in theFlorentinocase where the reservor willed the reservable properties to her daughter, a full-blood sister of theprepositusand ignored the other six reservors, the relatives of the half-blood of theprepositus.In rejecting that contention, this Court held that the reservable property bequeathed by the reservor to her daughter does not form part of the reservors estate nor of the daughters estate but should be given to all the seven reservees or nearest relatives of the prepositus within the third degree.This Court noted that, while it is true that by giving the reservable property to only one reservee it did not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor wasonly one of the reservees and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in the reservable property(pp. 894-5).Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the properties in question even if the disposition is in favor of the relatives within the third degree from Filomena Legarda. The said properties, by operation of Article 891, should go to Mrs. Legardas six children as reservees within the second degree from Filomena Legarda.It should be repeated that the reservees do not inherit fromthe reservor but from the prepositus,of whom the reservees are the heirsmortis causasubject to the condition that they must survive the reservor (Padura vs. Baldovino,L-11960, December 27, 1958,104 Phil. 1065).The trial court said that the disputed properties lost their reservable character due to the non-existence of third-degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to the Legarda family, except third-degree relatives who pertain to both the Legarda and Roces lines.That holding is erroneous. The reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legardas death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule onreserva troncaland not in accordance with the reservors holographic will. The said properties did not form part of Mrs. Legardas estate. (Cano vs. Director of Lands,105 Phil. 1, 4).WHEREFORE, the lower courts decision is reversed and set aside. It is hereby adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her daughter Filomena Legarda, with all the fruits and accessions thereof, are reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito F. Legarda, who died in 1969 and 1973, respectively, should pertain to their respective heirs. Costs against the private respondents.SO ORDERED.Barredo,Guerrero,Abad SantosandDe Castro, JJ., concur.Justice Concepcion Jr.,is on leave. Justice Guerrero was designated to sit in the Second Division.Petition granted.Notes.The requisite conditions for tax purposes before a court may issue an order of distribution of a decedents estate are: (1) when the inheritance tax has been paid; (2) when sufficient bond is given to meet the payment of the inheritance tax and all other obligations of the estate; or (3) when the payment of the said tax and all other obligations has been provided for. (Vera vs. Navarro,79 SCRA 408)The cause of action of the reservee of a piece of property subject of reserva troncal does not arise until the reservor dies (Chua vs. Court of First Instance,78 SCRA 412)For purposes of reserva troncal there is gratuitous transfer when the recipient does not give anything in return and it matters not that the property is subject to prior charges, such as an order of the court imposing the payment of a certain sum of money owned by the deceased. (Chua vs. Court of First Instance,78 SCRA 412)Plaintiffs cession of rights in favor of the legatees and heirs named in the will cut off whatever claims they may have had to the properties of the estate for distribution (Corpus vs. Corpus,7 SCRA 817)A proceeding for the probate of a will is one in rem, such that with the corresponding publication of the petition the courts jurisdiction extends to all persons interested in said will or in the settlement of the estate of the deceased. (Abut vs. Abut,45 SCRA 326)Inability among the heirs to reach a novatory accord can not invalidate the original compromise among them and any of the latter is justified in finally seeking a court order for the approval and enforcement of such compromise. (De Borja vs. Vda. de Borja,46 SCRA 577)The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings it it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and reshuffle properties long ago distributed and disposed of. (Guilas vs. Judge of Court of First Instance,43 SCRA 111;Macias vs. Uy Kim,45 SCRA 251)In reserva troncal the reservor has the legal title and dominion over the reservable property but subject to a resolutory condition. (Sienes vs. Esparcia,1 SCRA 750).When land is reservable property it is obligatory to reserve such property for the benefit of the real heir. (Aglibot vs. Maalac,4 SCRA 1030)o0o

G.R. No. 83484.February 12, 1990.*CELEDONIA SOLIVIO, petitioner,vs.THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA, respondents.Special Proceedings;Settlement of Estate;Courts;Jurisdiction;Trial court has no jurisdiction to entertain an action for partition and recovery of properties belonging to the estate of a deceased person, while the probate proceedings for the settlement of said estate are still pending in another branch of the same court.After a careful review of the records, we find merit in the petitioners contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanuevas action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl. Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratrixs inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings (p. 31, Record) x x x In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedents estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule inGuilas v. Judge of the Court of First Instance of Pampanga, L-26695, January 31, 1972, 43 SCRA 111, 117,where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother: The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated (Siguiong v. Tecson,supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilla, 83 Phil. 137).The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action,which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Italics supplied)Same;Same;Probate proceedings are proceedings in rem, publication of the notice of the proceedings is constructive notice to the whole world.The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonias original petition was published in the Visayan Tribune on April 25, May 2 and 9, 1977 (Exh. 4, p. 197, Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order of the court, published in Bagong Kasanag (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same.Same;Same;Same;Annulment of judgment;Extrinsic fraud;Failure to disclose to the adverse party, or to the court, matters which will defeat ones own claim or defense does not constitute extrinsic fraud that will justify vacation of judgment.Celedonias allegation in her petition that she was the sole heir of Esteban within the third degree on his mothers side was not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Estebans nearest surviving relative on his mothers side, is the rightful heir to them. It would have been self-defeating and inconsistent with her claim ofsole heirshipif she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud. Failure to disclose to the adversary, or to the court, matters which would defeat ones own claim or defense is not such extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)Wills and Succession;Reserva Troncal;Reserva troncal does not apply to property inherited by a descendant from his ascendant.Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mothers side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or a brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891.Evidence;Judicial Admissions;Judicial admissions are conclusive and no evidence is required to prove the same.However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her Motion to Reopen and/or Reconsider Order dated April 3, 1978 which she filed in Spl. Proceeding No. 2540: 4. That x x xprior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation,besides they have closely known each other due to their filiation to the decedent and they have been visiting each others house which are not far away for (sic) each other. (p. 234, Record; emphasis supplied) she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Estebans estate in the Salustia Solivio Vda. de Javellana Foundation which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance the education of indigent but deserving students as well. Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R. 70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).PETITION for review of the decision of the Court of Appeals.The facts are stated in the opinion of the Court.Rex Suiza Castillonfor petitioner.Salas & Villarealfor private respondent.MEDIALDEA,J.:This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals inCA-GR CV No. 09010(Concor-dia Villanueva v. Celedonia Solivio) affirming the decision of the trial court inCivil Case No. 13207for partition, reconvey-ance of ownership and possession and damages, the dispositive portion of which reads as follows:WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant:1. a)Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2) shares: one-half for the plaintiff and one-half for defendant. From both shares shall be equally deducted the expenses for the burial, mausoleum and related expenditures. Against the share of defendants shall be charged the expenses for scholarship, awards, donations and the Salustia Solivio Vda. de Javellana Memorial Foundation;2. b)Directing the defendant to submit an inventory of the entire estate property, including but not limited to, specific items already mentioned in this decision and to render an accounting of the property of the estate, within thirty (30) days from receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff;3. c)Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00 for and as attorneys fees plus costs.SO ORDERED. (pp. 42-43, Rollo)This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel With-out Seeing the Dawn, who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salus-tia Solivio; and (2) the private respondent, Concordia Javel-lana-Villanueva, sister of his deceased father, Esteban Javel-lana, Sr.He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia So-livio and four months before Esteban, Jr. was born.Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr. Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivios first wife (p. 325, Record), but no conjugal property was acquired during her short-lived marriage to Esteban, Sr.On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr.During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26, 1977 without having set up the foundation.Two weeks after his funeral, Concordia and Celedonia talked about what to do with Estebans properties. Celedonia told Concordia about Estebans desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her Motion to Reopen and/or Reconsider the Order dated April 3, 1978 which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated:4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], becauseprior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each others house which are not far away for (sic) each other. (p. 234, Record; italics supplied.)Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo).After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedents nearest relative on his mothers side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated.On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION which she caused to be registered in the Securities and Exchange Commission on July 17, 1981 under Reg. No. 0100027 (p. 98, Rollo).Four months later, or on August 7, 1978, Concordia Javellana-Villanueva filed a motion for reconsideration of the courts order declaring Celedonia as sole heir of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled Concordia Javellana-Villanueva v. Celedonia Solivio for partition, recovery of possession, ownership and damages.On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva.On Concordias motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already been transferred to, and were in the possession of, the Salustia Solivio Vda. de Javellana Foundation. The trial court denied her motions for reconsideration.In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA-GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial courtin toto. Hence, this petition for review wherein she raised the following legal issues:1. 1.whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia Villanuevas share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still pending in Branch 23 of the same court;2. 2.whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud;3. 3.whether the decedents properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mothers side from whom he had inherited them; and4. 4.whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de Javellana Foundation, and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have already been transferred to it.I.The question of jurisdictionAfter a careful review of the records, we find merit in the petitioners contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanuevas action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl. Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratrixs inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings (p. 31, Record).It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban,68 Phil. 367,Philippine Commercial and Industrial Bank v. Escolin, et al.,L-27860, March 29, 1974,56 SCRA 266).The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to hurry up the settlement of the estate. The pertinent portions of the order are quoted below:2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the record that despite the notices posted and the publication of these proceedings as required by law, no other heirs came out to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977.During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an elder [sic] sister of his late mother who reared him and with whom he had always been living with [sic] during his lifetime.x x x x x x x x x2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City.The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp. 14-16, Record)In view of the pendency of the probate proceedings in Branch 11of the Court of First Instance (now RTC, Branch 23), Concordias motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as coheir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. The probate court, in the exercise of its jurisdiction to make distribution, has power to determine the proportion or parts to which each distributee is entitled. x x x The power to determine the legality or illegality of the testamentary provision is inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. x x x To hold that a separate and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical. (Marcelino v. Antonio,70 Phil. 388)A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administratrix proceedings and can not properly be made an independent action. (Litam v. Espiritu,100 Phil. 364)A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca,5 Phil. 436)In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedents estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule inGuilas v. Judge of the Court of First Instance of Pampanga,L-26695, January 31, 1972,43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother:The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding (Timbol v. Cano,1 SCRA 1271, 1276,L-15445, April 29, 1961;Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated (Siguiong v. Tecson, supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilla,83 Phil. 137).The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar,89 Phil. 730, 741-742;Timbol v. Cano,supra;Jingco v. Daluz,L-5107, April 24, 1953,92 Phil. 1082;Roman Catholic v. Agustines,L-14710, March 29, 1960,107 Phil. 455, 460-461; Italics supplied)InLitam, et al., v. Rivera,100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071,it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition.(p. 378).However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to discuss the merits of her claim in the interest of justice.The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper andofficious, to say the least, for these matters lie within the exclusive competence of the probate court.II.The question of extrinsic fraudWas Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic fraud wasnot allegedin Concordias original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first time.Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud which prevents a party from having a trial or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited inPhilippine Law Dictionary, 1972 Ed. by Moreno;Varela v. Villanueva, et al.,95 Phil. 248)A judgment may be annulled on the ground of extrinsic or collateral fraud, as distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by a prevailing litigant outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case. x x x The overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court or from presenting his case. The fraud, therefore, is one that affects and goes into the jurisdiction of the court. (Libudan v. Gil,L-21163, May 17, 1972,45 SCRA 17, 27-29;Sterling Investment Corp. v. Ruiz,L-30694, October 31, 1969,30 SCRA 318, 323)The charge of extrinsic fraud is, however, unwarranted for the following reasons:1. Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and Celedonia had agreed that the latter would initiate the necessary proceeding and pay the taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged:6. x x x for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least effort,the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes and other obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff, [although Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis supplied)Evidently, Concordia wasnot preventedfrom intervening in the proceedings. She stayed awayby choice. Besides, she knew that the estate came exclusively from Estebans mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased had planned to do.2. The probate proceedings are proceedingsin rem. Notice of the time and place of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonias original petition was published in the Visayan Tribune on April 25, May 2 and 9, 1977 (Exh. 4, p. 197, Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order of the court, published in Bagong Kasanag (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same. As pointed out by the probate court in its order of October 27, 1978:x x x. The move of Concordia Javellana, however, was filed about five months after Celedonia Solivio was declared as the sole heir. x x x.Considering that this proceeding is onein remand had been duly published as required by law, despite which the present movant only came to court now, then she is guilty of laches for sleeping on her alleged right. (p. 22, Record)The court noted that Concordias motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial.The rule is stated in 49 Corpus Juris Secundum 8030 as follows:Where petition was sufficient to invoke statutory jurisdiction of probate court andproceeding was in rem, no subsequent errors or irregularities are available on collateral attack. (Bedwell v. Dean132 So. 20)Celedonias allegation in her petition that she was the sole heir of Esteban within the third degree on hismothers sidewas not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Estebans nearest surviving relative on his mothers side, is the rightful heir to them. It would have been self-defeating and inconsistent with her claim ofsole heirshipif she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud.Failure to disclose to the adversary, or to the court, matters which would defeat ones own claim or defense is not such extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citingYoung v. Young, 2 SE 2d 622;First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842;Price v. Smith, 109 SW 2d 1144, 1149)It should be remembered that a petition for administration of a decedents estate may be filed by any interested person (Sec. 2, Rule 79, Rules of Court). The filing of Celedonias petition did not preclude Concordia from filing her own.III.On the question of reserva troncalWe find no merit in the petitioners argument that the estate of the deceased was subject toreserva troncaland that it pertains to her as his only relative within the third degree on his mothers side. Thereserva troncalprovision of the Civil Code is found in Article 891 which reads as follows: ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.The persons involved inreserva troncalare:1. 1.The person obliged to reserve is the reservor (reservista)the ascendant who inherits by operation of law property from his descendants.2. 2.The persons for whom the property is reserved are the reservees (reservatarios)relatives within the third degree counted from the descendant (propositus), and belonging to the line from which the property came.3. 3.Thepropositusthe descendant who received by gratuitous title and died without issue, making his other ascendant inherit by ope