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[No. 29158. December 29, 1928]
Estate of the deceased Rosendo Hernaez. RAFAEL R. ALUNAN,
administrator and appellee, vs. ELEUTERIA CH. VELOSO,
opponent and appellant.
1. DESCENT AND DISTRIBUTION; WIDOW'S USUFRUCT.—
The widow, according to the law, only has a right to a portion of the
estate equal to that of the legitime of each of the children without
betterment. As in the instant case none of the children received a
betterment, the widow should receive a portion equal to the share
of each in the two-thirds of the distributable amount making up the
legitime, to be taken from the one-third forming the betterment.
Then, the other free third, which the decedent failed to dispose of,
must be partitioned among the heirs to the exclusion of the widow,
as an addition to their legitime.
2. ID.; ID.; USUFRUCT OF FUNGIBLE THING.—There can be a
usufruct of a sum of money (art. 482, Civil Code).
APPEAL from a judgment of the Court of First Instance of
Occidental Negros. De la Rosa, J.
The facts are stated in the opinion of the court.
Hipolito Alo for appellant.
R. Nolan for appellee.
AVANCEÑA, C. J.:
This case deals with an account filed in these intestate proceedings
for the settlement of the estate of the deceased Rosendo Hernaez by
his judicial administrator, Rafael Alu-nan, and approved by the court
below. Jose Hernaez, one of
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546 PHILIPPINE REPORTS ANNOTATED
Alunan vs. Veloso
the heirs interested in this proceeding, assigned the whole of his
portion to Eleuteria Ch. Veloso, and the latter objects to some of the
items of the account filed, assigning (four -errors to the resolution of
the court below.
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In the first place, it is alleged that the lower court erred in
imposing a preferred lien of P12,683.83 upon the Panaogao
Hacienda, adjudicated to the appellant Eleuteria Ch. Veloso. Before
the partition, Jose Hernaez leased said Panaogao Hacienda for two
harvests the stipulated rent being 12 per cent of all the sugar to be
produced, thereon, provided, however, that he should pay at least 12
per cent of 8,000, even if (the production should fall below this
amount. During the two years Jose Hernaez produced less than
8,000 piculs, and only 12 per cent of what he did produce was
collected from him as rent, thus leaving him indebted in an amount
equal to the difference between 12 per cent of the sugar he produced,
and 12 per cent of 8,000 piculs which he had to pay at the least. The
P12,683.83 to which the first error refers is the value of this
difference and is therefore a legal debt of Jose Hernaez's transmitted
to the appellant, and affecting her participation in the intestate estate.
According to an agreement previously entered into by and between
the heirs, the share belonging or which may belong to each heir shall
be liable and subject to a lien in (f avor of all the heirs (f or any
account or debt pending which the heir may owe to the intestate
estate.
This first error then is not well grounded.
As to the second error, which is made to consist in the lower
court having held that the sum of P20,000 is another lien upon the
said Panaogao Hacienda, in favor of the administrator Rafael
Alunan, should the latter be ordered to pay that sum in civil case No.
6391 of the Court of First Instance of Iloilo, Mr. Alunan is agreeable
that this holding be eliminated from the judgment appealed from.
The third error refers to the sum of P24,991.42 as attorney's fees
and compensation of the administrators who took part in this
proceeding. This amount, it is alleged,
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VOL. 52, DECEMBER 29, 1928 547
Alunan vs. Veloso
is excessive. It appears that a great part of these fees were paid to
Jose Hernaez himself, the appellant's predecessor in interest, and
most of these fees, as well as of the attorney's fees, have already
been approved by the court below. At all events, since it has been
found necessary to employ several lawyers and more than one
administrator in this proceeding, and taking into account the unusual
amount of the interests involved, we find no merit in the objection to
this item of the account.
The fourth error is made to consist in the lower court having
admitted the partition proposed by the administrator in his account.
According to this account, the total amount to be partitioned among
the heirs is P88,979.08, which the administrator distributed equally
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among all the heirs, including the widow, each one receiving
P11,122.38.
This partition is objected to with respect to the widow. It is
alleged that the distributable amount is in money, and since the
widow's right is only a usufruct, and as there can be no usufruct of
money, since it is a fungible thing, the adjudication made to the
widow was erroneous. It is incorrect to say that there can be no
usufruct of money, because it is a fungible thing (art. 482, Civil
Code).
It is likewise alleged, that, at any rate, this amount which should
go to the widow should be offset by the P55,000 which she has
already received as a pension. Neither do we find any ground for
this error, since, according to the agreement of the heirs already
referred to, the amount of the widow's pension is not to be charged
to her portion in the inheritance either wholly or in part.
Lastly, it is alleged, that the portion given to the widow is not in
accordance with law. We find the objection with respect to this point
to be correct. The widow, according to the law, only has a right to a
portion, of the estate equal to that of the legitime of each of the
children without betterment. In the instant case none of the children
received a betterment. Consequently, the widow should receive a
portion equal to the share of each in the two-thirds of the
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Rafferty vs. Province of Cebu
distributable amount making up the legitime, to be taken from the
one-third forming the betterment. Then, the other free third, which
the decedent failed to dispose of, must be partitioned among the
heirs to the exclusion of the widow, as an addition to their legitime.
Working out the computations on this basis, the widow should
receive only P8,474.19.
Therefore, it being understood that there be eliminated from the
decision the holding that the Panaogao Hacienda, which was
adjudged to the appellant, should answer for the amount of P20,000
as a lien in favor of Rafael Alunan should the latter be ordered to
pay it in civil case No. 6391 of the Court of First Instance of Iloilo,
and it being further understood that the widow's portion is only
P8,474.19, the remainder of the P88,979.08 which is distributable,
pertaining to the heirs, share and share alike, excluding the widow,
the judgment appealed from is affirmed, without special
pronouncement as to costs. So ordered.
Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and
Villa-Real, JJ., concur.
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Judgment modified.
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