No. L-41715. June 18, 1976.
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO
BONILLA (their father) who represents the minors, petitioners, vs. LEON BARCENA,
MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA, AGUSTINA
NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court of First
Instance of Abra, respondents.
Pleadings and practice; Parties; Substitution of parties in case of death of plaintiff during
pendency of proceedings in action which survives death of said plaintiff.—While it is true that a person
who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case up to its
completion.
Same; Same; Duty of attorney upon death of party.—The Rules of Court prescribes the procedure
whereby a party who died during the pendency of the proceeding can be substituted. Under Section 16,
Rule 3 of the Rules of Court “whenever party to a pending case dies x x x it shall be the duty of his
attorney to inform the court promptly of such death x x x and to give the name and residence of his
executor, administrator, guardian or other legal representatives.”
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*
FIRST DIVISION
492
492 SUPREME COURT REPORTS ANNOTATED
Bonilla vs. Barcena
Same; Same; Duty of court upon death of party.—Under section 17, Rule 3 of the Rule of Court
“after a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the
legal representative of the deceased to appear and be substituted for the deceased, within such time as
may be granted x x x.”
Same; Same; Duty of court where legal representative of deceased party fails to appear.—Under
Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if the legal representative fails to
appear, to order the opposing party to procure the appointment of a legal representative of the deceased.
Same; Same; Duty of court where representative of deceased party minors.—Under Section 17,
Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs.
Same; Same; Action to quiet title to property as action which survives death of a party; Test to
determine whether action survives or not.—The question as to whether an action survives or not depends
on the nature of the action and the damage sued for. In the causes of action which survive, the wrong
complained affects primarily and principally property and property rights, the injuries to the person being
merely incidental, while in the causes of action which do not survive, the injury complained of is to the
person, the property and rights of property affected being incidental. Following the foregoing criterion the
claim of the deceased plaintiff which is an action to quiet title over the parcels of land in litigation affects
primarily and principally property and property rights and therefore is one that survives even after her
death.
Succession; Rights to succession transmitted from the moment of death of decedent.—Article 777 of
the Civil Code provides “that the rights to the succession are transmitted from the moment of the death of
the decedent.” From the moment of the death of the decedent, the heirs become the absolute owners of his
property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights
thereto except by the methods provided for by law. The moment of death is the determining factor when
the heirs acquire a definite right to the inheritance whether such right be pure or contingent. The right of
the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs
in the testate or intestate proceedings.
PETITION for review of the order of the Court of First Instance of Abra, Gironella, J.
493
VOL. 71, JUNE 18, 1976 493
Bonilla vs. Barcena
The facts are stated in the opinion of the Court.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J.:
This is a petition for review of the Order of the Court of First Instance of Abra in Civil Case No.
1
856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for
reconsideration of its order dismissing the complaint in the aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion
Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of
Abra, to quiet title over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the
hearing of the motion to dismiss, the counsel for the plaintiff moved to amend the complaint in
order to include certain allegations therein. The motion to amend the complaint was granted and
on July 17 1975, plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the complaint on the
ground that Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to
dismiss was heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the
death of Fortunata Barcena and asked for substitution by her minor children and her husband, the
petitioners herein; but the court after the hearing immediately dismissed the case on the ground
that a dead person cannot be a real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the
complaint and on August 23, 1975, he moved to set aside the order of the dismissal pursuant to
Sections 16 and 17 of Rule 3 of the Rules of Court. 2
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1
Which this Court treats as special civil action as per its Resolution dated February 11, 1976.
2
Section 16. Duty of Attorney upon death, incapacity, or incompetency of party.—Whenever a party to a pending case
dies, becomes incapacitated or incompetent, it shall be the duty of his
494
494 SUPREME COURT REPORTS ANNOTATED
Bonilla vs. Barcena
On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the
plaintiff for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written
manifestation praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to
substitute their deceased mother, but the court denied the counsel’s prayer for lack of merit.
From the order, counsel for the deceased plaintiff filed a second motion for reconsideration of
the order dismissing the complaint claiming that the same is in violation of Sections 16 and 17 of
Rule 3 of the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order dismissing the complaint in
Civil Case No. 856 and its orders denying the motion for reconsideration of said order of
dismissal. While it is true that a person who is dead cannot sue in court, yet he can be substituted
by his heirs in pursuing the case up to its completion. The records of this case show that the
death of Fortunata Barcena took place on July 9, 1975 while the complaint was filed on March
31, 1975. This means that when the complaint was filed on March 31, 1975, Fortunata Barcena
was still alive, and therefore, the court had acquired jurisdiction over her person. If thereafter she
died, the Rules of Court prescribes the procedure whereby a party who died during the pendency
of the proceeding can be substituted.
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attorney to inform the court promptly of such death, incapacity or incompetency, and to give the name and residence
of his executor, administrator, guardian or other legal representative.
Section 17. Death of party.—After a party dies and the claim is not thereby extinguished, the court shall order, upon
proper notice, the legal representative of the deceased to appear and to be substituted for deceased, within a period of
thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court
may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be
specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased.
The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint guardian ad litem for the minor heirs.
495
VOL. 71, JUNE 18, 1976 495
Bonilla vs. Barcena
Under Section 16, Rule 3 of the Rules of Court “whenever a party to a pending case dies x x x it
shall be the duty of his attorney to inform the court promptly of such death x x x and to give the
name and residence of his executor, administrator, guardian or other legal representatives.” This
duty was complied with by the counsel for the deceased plaintiff when he manifested before the
respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper
substitution of parties in the case. The respondent Court, however, instead of allowing the
substitution, dismissed the complaint on the ground that a dead person has no legal personality to
sue. This is a grave error. Article 777 of the Civil Code provides “that the rights to the succession
are transmitted from the moment of the death of the decedent.” From the moment of the death of
the decedent, the heirs become the absolute owners of his property, subject to the rights and
obligations of the decedent, and they cannot be deprived of their rights thereto except by the
methods provided for by law. The moment of death is the determining factor when the heirs
3
acquire a definite right to the inheritance whether such right be pure or contingent. The right of 4
the heirs to the property of the deceased vests in them even before judicial declaration of their
being heirs in the testate or intestate proceedings. When Fortunata Barcena, therefore, died her
5
claim or right to the parcels of land in litigation in Civil Case No. 856, was not extinguished by
her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in
the properties in litigation and became parties in interest in the case. There is, therefore, no
reason for the respondent Court not to allow their substitution as parties in interest for the
deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court “after a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the deceased to
appear and be substituted for the deceased, within such time as may be granted x x x.” The
question as to whether an action survives or not depends on the nature of the action
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3
Buan vs. Heirs of Buan, 53 Phil. 654.
4
Ibarle vs. Po, 92 Phil. 721.
5
Morales, et al. vs. Ybanez, 98 Phil. 677.
496
496 SUPREME COURT REPORTS ANNOTATED
Bonilla vs. Barcena
and the damage sued for. In the causes of action which survive the wrong complained affects
6
primarily and principally property and property rights, the injuries to the person being merely
incidental, while in the causes of action which do not survive the injury complained of is to the
person, the property and rights of property affected being incidental. Following the foregoing
7
criterion the claim of the deceased plaintiff which is an action to quiet title over the parcels of
land in litigation affects primarily and principally property and property rights and therefore is
one that survives even after her death. It is, therefore, the duty of the respondent Court to order
the legal representative of the deceased plaintiff to appear and to be substituted for her. But what
the respondent Court did, upon being informed by the counsel for the deceased plaintiff that the
latter was dead, was to dismiss the complaint. This should not have been done for under the same
Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if the legal
representative fails to appear, to order the opposing party to procure the appointment of a legal
representative of the deceased. In the instant case the respondent Court did not have to bother
ordering the opposing party to procure the appointment of a legal representative of the deceased
because her counsel has not only asked that the minor children be substituted for her but also
suggested that their uncle be appointed as guardian ad litem for them because their father is busy
in Manila earning a living for the family. But the respondent Court refused the request for
substitution on the ground that the children were still minors and cannot sue in court. This is
another grave error because the respondent Court ought to have known that under the same
Section 17, Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for
the minor heirs. Precisely in the instant case, the counsel for the deceased plaintiff has suggested
to the respondent Court that the uncle of the minors be appointed to act as guardian ad litem for
them. Unquestionably, the respondent Court has gravely abused its discretion in not complying
with the clear provision of the Rules of Court in dismissing the complaint of the plaintiff in Civil
Case No. 856
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6
Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT 529, 46 L. ed. 739.
7
Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39 CCA. 79.
497
VOL. 71, JUNE 18, 1976 497
Bonilla vs. Barcena
and refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the
complaint in Civil Case No. 856 of the Court of First Instance of Abra and the motions for
reconsideration of the order of dismissal of said complaint are set aside and the respondent Court
is hereby directed to allow the substitution of the minor children, who are the petitioners therein
for the deceased plaintiff and to appoint a qualified person as guardian ad litem for them.
Without pronouncement as to costs.
SO ORDERED.”
Teehankee (Chairman), Makasiar, Esguerra and Muñoz Palma, JJ., concur.
Orders set aside.
Notes.—a) Duty of attorney for deceased party—Under Sec. Rule 3 of the Rules of Court it is
the duty of the attorney for the deceased defendant to inform the Court of his client’s death and
furnish it with the name and residence of the executor, administrator, or legal representative of
the deceased. This rule must have taken into consideration the fact that the attorney for the
deceased party is in a better position than the attorney for the other party to ascertain who are the
legal representative or heirs of his deceased client. This duty should not be shifted to the plaintiff
or his attorney. (Barrameda vs. Barbara, L-4227, January 28, 1952).
1. b)Legal representative takes place of deceased party.—When the trial court is
apprised of the death of a party, it should order, not the amendment of the
complaint, but then appearance of the legal representative of the deceased as
provided in section 17, Rule 3 of the Rules of Court. An order to amend the
complaint, before the proper substitution of the deceased parties has been
effected, is void. In such a case the order of the court, dismissing the complaint,
for plaintiff’s noncompliance with the order to amend it, is likewise void.
(Casenas vs. Rosales, L-18707, February 28, 1967).
