G.R. No. 126950, 02 July 1999, 309 SCRA 692


Edras Nufable owned an untitled parcel of land located at Poblacion, Manjuyod, Negros Oriental, consisting of 948 square meters, more or less. He died on August 9, 1965and was survived by his children, namely: Angel Custodio, Generosa, Vilfor and Marcelo, all surnamed Nufable. Upon petition for probate filed by said heirs and after due publication and hearing, the then Court of First Instance of Negros Oriental (Branch II) issued an Order dated March 30, 1966 admitting to probate the last will and testament executed by the deceased Edras Nufable. However, one of the heirs, Angel actually mortgaged the entire property to DBP two months prior to the settlement which property was eventually foreclosed. Thereafter, Nelson, son of the mortgagors, purchased said property from DBP. The other heirs now filed for the annulment of sale in favor of Nelson. The Court of Appeals rendered the assailed decision granting one-fourth of the property to Nelson and the other three-fourths to the other heirs.

Petitioners filed this present petition contending that the probate of the Last Will and Testament of Edras Nufable did not determine the ownership of the land in question as against third parties.


Whether or not the Last Will and Testament of Esdras Nufable and its subsequent probate are pertinent and material to the question of the right of ownership of petitioner Nelson Nufable who purchased the land in question from, and as acquired property of the Development Bank of the Philippines.


No, the Last Will and Testament of Edras and its subsequent probate do not affect the title of Nelson. At the time when the entire property was mortgaged, the other heirs of Edras had already acquired successional rights over the said property. This is so because the rights to the succession are transmitted from the moment of death of the decedent. Accordingly, for the purpose of transmission of rights, it does not matter whether the Last Will and Testament of the late Esdras Nufable was admitted or that the Settlement of Estate was approved. It is to be noted that the probated will of the late Esdras Nufable specifically referred to the subject property in stating that “the land situated in the Poblacion, Manjuyod, Negros Oriental, should not be divided because this must remain in common for them, but it is necessary to allow anyone of them brothers and sisters to construct a house therein.” It was there for the will of the decedent that the subject property should undivided, although the restriction should not exceed twenty (20) years pursuant to Article 870 of the Civil Code. Thus, when Angel Nufable and his spouses mortgaged the subject property to DBP on March 15, 1966, they had no right to mortgage the entire property. Angel’s right over the subject property was limited only to 1/4 pro indiviso share. As co-owner of the subject property, Angel’s right to sell, assign or mortgage is limited to that portion that may be allotted to him upon termination of the co-ownership. Well-entrenched is the rule that a co-owner can only alienate his pro indiviso share in the co-owned property. Hence, The Court of Appeals did not err in ruling that Angel Custodio Nufable “had no right to mortgage thesubject property in its entirety. His right to encumber said property was limited only to 1/4pro indiviso share of the property in question.”

*Case digest by Maria Novie Taruc, LLB-IV, Andres Bonifacio College Law School, SY 2018-2019