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[IRENE GREGORIO v. ELENA COSIO ET AL.](http://lawyerly.ph/juris/view/cc54?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 6311, Oct 24, 1911 ]

IRENE GREGORIO v. ELENA COSIO ET AL. +

DECISION

21 Phil. 619

[ G. R. No. 6311, October 24, 1911 ]

IRENE GREGORIO, PLAINTIFF AND APPELLANT, VS. ELENA COSIO ET AL., DEFENDANTS AND APPELLEES.

D E C I S I O N

JOHNSON, J.:

On the 6th of November, 1906, the plaintiff and appellant commenced an  action in the Court of First Instance of the Province of Laguna against the defendants for the purpose of securing the partition of two parcels of land described in the first paragraph of the complaint.   It was alleged in the complaint that the plaintiff as well as the defendants were heirs of Celedonio Cosio.

Upon the 10th of December,  1906,  the attorney for the defendants presented a motion in which it was stated that there were some other heirs of Celedonio Cosio who were not made parties to the action, and  prayed that the said other persons should be made parties to the present action; which motion, upon due consideration, was granted.   Some of the additional parties answered,  alleging that they had no interest whatever in  the  partition of the  lands  in  question. Other defendants answered, alleging that all of the property of Celedonio Cosio had been  divided among his heirs  soon after his death, which occurred  in  1866.

On the 25th of November, 1908, the plaintiff presented an amended complaint including Ruperto Salva, Juana Salva, Silvestre Gregorio and Constancia Calacas, as plaintiffs, and Antonio Cosio and Jesus Cosio,  as additional defendants, alleging that they were all heirs of the  said Celedonio Cosio, and asked for a partition of six parcels of land which were particularly described in paragraph  one of the said amended complaint.

Upon  the  19th of January,  1909, Mr.  Crispin  Oben, attorney for the nine defendants, filed an amended answer, in which he alleged that all of the lands in question had been divided  among the heirs of Celedonio Cosio, deceased, at the time of his death, and  prayed that the  defendants be  absolved from any liability under the complaint presented in said  cause.

After hearing the evidence adduced during  the trial of the cause, the Hon. Vicente Jocson, judge, found that the lands in question had been divided  in  accordance  with  the contention  of  the defendants and absolved  them from any liability under the complaint, with costs against the plaintiff.

From that judgment the plaintiff  appealed and made two assignments of  error in this court.

The plaintiff and  appellant  in  his  brief in this court admitted  that  at  the time  of the  death of the said Celedonio Cosio in 1866, or soon thereafter, his property  had been divided among his heirs.   (See brief of appellant, pp. 3 and 5).  There  was an attempt made to show that some of the heirs of Celedonio Cosio, or at least one of the said heirs, at the time said partition  of the property in question was made, was a minor and that, therefore, said partition was illegal.  Even  granting that  one of the heirs was a minor at the time said partition  took place, that minor is the  only person who can avail  himself  of  the right to have said partition declared illegal.  It is not  alleged that the ancestors  of the present plaintiff were minors at  the time said  partition was  made.

There was also an attempt made  during the trial of the cause to show that some of the  persons who shared in the partition  of the property of Celedonio  Cosio in 1866 were natural children and had never been  legitimized.  That contention may or may not be  true.  It is  true, however, that all of the  persons who shared in the partition of the estate, were treated as brothers and sisters, children of the said Celedonio Cosio.   It is  also shown that the heirs  at  the time of the partition of the said estate in  1866, took possession of their respective shares and  that they and their descendants have  been  in  possession  thereof  ever since. This action was commenced in  1906.   It seems to  us that after  the  expiration of forty years it is  pretty late  for common heirs to ask for the partition  of an estate, which they themselves admit was  divided  among the heirs, upon the ground that at the time the partition took place some of them  were either minors or were  illegitimate, especially when no complaint is made by such minor or his descendants. Upon a full consideration of all of the facts contained in the record, we  are of the opinion that the judgment of the lower court should be affirmed with costs.  So ordered.

Torres, Mapa, Carson, and Moreland,  JJ,, concur.
 



 
  ON MOTION FOR A REHEARING


  DECEMBER 15, 1911.


JOHNSON, J.:

In  the original decision it was stated  that the plaintiff and appellant had admitted in his brief that the property of Celedonio Cosio had been divided among his heirs at the time of his death in 1866, or soon thereafter.   The appellant now, in his motion for a rehearing, makes the statement that he  did not intend to admit that the property of Celedonio Cosio had been divided among the heirs in 1866, and that a careful reading of his brief will show that no such admission was intended.  It is possible that the brief of the plaintiff and appellant is  not subject  to the interpretation given it in the original decision; we have, therefore, reexamined the evidence for the purpose of determining anew what such evidence shows.

The plaintiff presented several witnesses who swore positively that the partition had  not been made.   On the other hand, the defendants presented several witnesses who swore just as positively that the partition had been made.  In addition to the declarations of the witnesses of the defendants upon  this question, they presented some documentary evidence  which seems to indicate that  a  partition of  the property in  question  had taken place.  The defendants presented Exhibit 1 (see  record, pp. 26-29)  which shows that one Ignacio Pamilacan, as  judicial  administrator of the estate of Tomas Cosio, had brought  an  action  in  the Court  of First  Instance of the  Province of Laguna,  for the purpose of recovering the possession of three parcels of land located in the barrio of  San Juan, in the municipality of  Santa  Cruz, together  with certain  personal  property, (Tomas Cosio was one of the sons of  the said  Celedonio Cosio.)   In the decision filed in that  action  by the Hon. Ignacio Villamor, it was said that "The  proofs  presented by  the plaintiff during the trial of the cause demonstrate that the property belongs to the estate of the deceased Tomas Cosio, having been inherited from his deceased father," etc. This action was  known as cause No. 420 in the Court of First Instance of the Province of Laguna.  It was commenced on the 13th of November, 1905.

The defendants also presented Exhibit 3, in support of their contention that the property of Celedonio Cosio had been  divided among his  heirs.  (Record, pp. 35-37.)  By reference to this exhibit, it will be seen that on the 9th day of August, 1905, Maria  Cosio presented a petition in  the Court of First Instance of the Province of  Laguna for the appointment of  an administrator of the estate of Tomas Cosio.  In said petition  Maria Cosio alleged that the said Tomas Cosio died intestate; that at the time of his death he was possessed of three parcels of land and certain carabaos; that the said lands had been acquired by him by inheritance from his deceased father, Celedonio Cosio, thus indicating that there  had been a partition of the property of the said Celedonio Cosio.   The said Maria Cosio was a daughter  of Celedonio Cosio and a sister of the said Tomas Cosio.

By reference to Exhibit No. 2 (pp. 30-34) it will be seen from the  inventory presented by the administrator of  the estate of Tomas Cosio, that the lands included therein constituted some of the lands described in the amended petition of the plaintiff herein.  (See bill of exceptions, pp. 26, 27.) (See decision of this court in the case of Cosio vs. Pili,  (10 Phil. Rep., 72) for facts confirmatory of some of the facts contained in the foregoing exhibits.)

The said Maria Cosio,  mentioned in exhibit 3 above, who alleged that the property described in said exhibit had been inherited  by Tomas Cosio from his father Celedonio Cosio, was the mother of the  plaintiff and appellant herein.   (Brief of appellee, p. 4.)   The declarations of Maria Cosio in said petition (Exhibit 3) by reason of the fact that she was  the daughter  of Celedonio Cosio,  should be given some credit. There seems to  have  been  no reason for making a false declaration in said exhibit.

The lower court, in  its decision, among other things/made the following statements  which we believe are supported by the proof: 

"(1)  The plaintiff has adduced  evidence attempting  to prove that the property specified in her amended complaint belonged to  the deceased Celedonio Cosio,  successor in interest of the herein  plaintiff and defendants,  but  this evidence is merely oral  testimony, not so sufficiently clear that the court can decide  whether it really was  not partitioned; because the witnesses themselves have been unable to specify in a clear  way the location of this  property, in whose possession it is, and the nature of it; but weighing this evidence all  together I am inclined to  believe that of the property now claimed part is  in the possession of persons who have not been made parties to  this suit and part is  in the possession  of Elena Cosio.

"(2) It appears, moreover, by defendant's Exhibit No.  3, that it was Maria Cosio, mother of one of the present plaintiffs in this  suit,  Irene, who really requested  the  appointment  of an  administrator for the  deceased Tomas  Cosio, and that according to said request all the property owned by Tomas Cosio at his death, among which  that now  in litigation is  included,  belonged  to  said Tomas Cosio  by inheritance from his father, Celedonio Cosio (Exhibit No. 3 of the defendants).

"(3) The action taken by Maria Cosio when  alive conclusively demonstrates the bad faith  of Irene Gregorio,  and the latter can not impugn the action taken by  her deceased mother, which constitutes a recognition of the ownership of the property  of Tomas Cosio that has passed on to his heirs.

"Summing up, then, the plaintiffs' evidence: they have not substantiated their averment that the property they claim was Celedonio  Cosio's and that it is still pro indiviso, for some of this  property is in the possession of other persons and can  hardly be recovered when these persons have not even been sued  for it.

"Nor have  the plaintiffs succeeded in showing clearly the degrees of relationship of all the defendants, for their testimony in this  respect is ambiguous and incomplete, just as it is with  reference to the property they say was Celedonio Cosio's, all  which argues against the credibility of these witnesses for the plaintiffs."

After a careful  re examination of the facts, with special reference to the allegations made in the motion for a rehearing,  we are still of the opinion that the judgment of the lower court should be affirmed, and  that the motion for a rehearing should be denied.   So ordered.

Mapa, Carson, Moreland, and Trent, JJ., concur.


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