G.R. No.

L-44347 September 29, 1988 Another nephew of Cornelia, Segundo Reyes,

in a burst of civic spirit, informed the Solicitor
VICENTE TAN, petitioner, General about the property. The City Fiscal
vs. and NBI agents, Antonio Gonzaga and Felix
CITY OF DAVAO, respondent. Valencia, investigated Segundo Reyes,
Ramon Pizarro and Aurelio Pizarro regarding
Occeña Law Office for petitioner. the whereabouts of Dominga Garcia, Tan
Seng, and their children.
The City Legal Officer for respondent.
During the investigation, Ramon Pizarro
alleged that Vicenta Tan, daughter of
Dominga, was married and living in Bacolod
City, but he did not know her exact address.
GRIÑO-AQUINO, J.: Aurelio Pizarro, on the other hand,
controverted that statement because as far as
This 26-year old case involves what is probably now a valuable
lot in the City of Davao whose owner left for China with her entire he knew, Vicenta Tan left for China with her
family in 1923 and never returned. Like all such estates facing mother and brothers in 1923.
escheat proceedings, it is fair game for poseurs and fakers
claiming to be the missing heir of the deceased owner.
On September 12,1962, the City of Davao
The spouses Cornelia Pizarro and Baltazar filed a petition in the Court of First Instance of
Garcia, during their lifetime, were residents of Davao, Branch I (Special Civil Case No. 1220)
Davao City. As they were childless, they to declare Dominga Garcia's land escheated
adopted a three-year old girl whom they in its favor. It alleged that Dominga Garcia and
named Dominga Garcia and brought up as her children are presumed to be dead and
their own. At the age of nineteen years, since Dominga Garcia left no heir person by
Dominga Garcia married a Chinaman, Tan law entitled to inherit her estate, the same
Seng alias Seng Yap, with whom she had should be escheated pursuant to Rule 92 of
three children, named Vicente, who was born the Rules of Court (pp. 1-5, Record on
in 1916, Mariano who was born in 1918, and Appeal).
Luis who was born in 1921. In 1923, Dominga
Garcia and her three children emigrated to The court set the petition for hearing and
Canton, China. In less than a year, Tan Seng directed the City to cause (as it did ) the
followed his family to his country of origin. publication of its petition in the 'Mindanao
Times," a newspaper of general circulation in
According to the petitioner, Dominga Garcia the city and province of Davao, and in the
died intestate in 1955 (Extra-judicial Official Gazette, once a week for six (6)
Settlement of the Estate of Dominga Garcia consecutive weeks (pp. 6-8, Record on
dated May 27, 1966, p. 8, Rollo). She left in Appeal).
the Philippines a 1,966-square-meter lot on
Claveria Street, Townsite of Davao, District of Ramon Pizarro opposed the escheat petition
Davao, registered in her name under T.C.T. on the ground that courts are not authorized to
No. 296 (T-2774) of the Registry of Deeds of declare that a person is presumed to be dead
Davao City. Since her departure for China and that Dominga Garcia's being in Red
with her family, neither she, nor her husband, China is not a sufficient ground to deprive her
nor any of their children has returned to the of her property by escheat proceedings (pp. 8-
Philippines to claim the lot. 9, Record on Appeal).

Dominga's adoptive parent, Cornelia Pizarro, On June 15, 1966, Pizarro filed a motion to
died in May 1936. In 1948, her nephew, dismiss the escheat petition (pp. 13-15,
Ramon Pizarro, occupied a part of Dominga's Record on Appeal), but he withdrew his
property and collected the rentals from the motion three days later (p. 15, Record on
owners of other houses occupying the land. Appeal).
Numerous incidents delayed the trial of the borrowed money from him for their trip to
case, among them: (1) the court's order China.
denying the oppositor's motion to dismiss the
escheat petition, which reached the Court of Pizarro's witness, a septuagenarian Arsenio
Appeals and the Supreme Court (L-38423); Suazo, who claimed to be a distant relative of
(2) the court's order requiring Pizarro to Cornelia Pizarro and Dominga Garcia,
render an accounting which also reached the testified that the last time he saw Vicenta was
Court of Appeals and Supreme Court (L- when she was 5 years old. He Identified her
38642); and (3) the court's order for as the woman with buck teeth in the pictures
receivership which reached the Court of (Exhs. 1, 2 and 3) because he remembered
Appeals and the Supreme Court (L-39224). that, even as a 5-year-old, "her teeth were not
in good form and were somewhat protruding."
At the trial, the petitioner's evidence on the
Identity of the land; the fact that the registered Another witness, Ramon Regino, a nephew of
owner, Dominga Garcia, and her children and Pizarro, calculated that Vicenta was 7 years
husband had left for China in 1923; that she old when he last saw her. He testified that the
died intestate in 1955; and that none of her pictures (Exhs. 1, 2, and 3) bore a similarity to
heirs is found in the Philippines, were not Vicenta whose face, he recalled, was
seriously disputed. "somewhat long."

The controversy centers on whether The trial court found Suazos testimony "not
Dominga's daughter, Vicenta Tan, is alive in credible" or "improbable" for it was impossible
China or in Hongkong, as alleged by Pizarro for him to Identify the woman in the picture as
who tried to prove it through: (1) supposed Vicenta on the basis only of his recollection
pictures of the missing heir (Exhs. 1, 2, and that she had protruding teeth as a child,
3); (2) an Extrajudicial Settlement and because, the court argued, "it is a matter of
Adjudication of Dominga's Estate (Exh. 19, common knowledge ... that the teeth of
pp. 8-9, Rollo) allegedly executed by Vicenta children of five years of age are temporary,
in Hongkong on May 27, 1966; and (3) a and are replaced by permanent teeth at the
Special Power of Attorney (Exh. 20) that she age of seven or eight years."
supposedly signed (thumbmarked) in favor of (p. 185, Record on Appeal.)
Pizarro on the same date also in Hongkong
(pp. 53-56, Rollo). The court also found Regino's testimony
"Incredible, patently incredible" (p. 185,
Pizarro testified that his aunt Cornelia Pizarro Record on Appeal).
gave him the papers pertaining to the land
and told him to take care of it before she died Neither did the trial court believe Pizarro's
in 1936. allegation that the pictures, Exhibits 1, 2, and
3, were those of Vicenta Tan. The court
On cross-examination, he alleged that in 1960 observed that the woman in the picture, who
he met Vicenta on Claveria Street, that she supposedly made the Extrajudicial Settlement
told him to take care of her property because and Special Power of Attorney (Exhs. 19 and
she would come again later; that they met 20) did not know how to sign her name, thus
again in Hongkong in 1966; and he contradicting Pizarro's statement that Vicente,
recognized her from her pictures at age 7, already knew how to write and that
(Exhs. 1, 2, and 3). when they met in Hongkong, they conversed
in Chavacano and in English. On the other
On still another occasion, Pizarro testified that hand, the court pointed out, since Vicenta left
the title of the land was given to him by for China in 1923 when she was only 7 years
Dominga Garcia when she and her husband old, and as she grew up in China, it could not
returned to Davao before the war and be true that she spoke Chavacano and could
write in the Roman alphabet the City of Davao for the
(p. 194, Record on Appeal). benefit of public schools and
public charitable institutions
The Court did not believe that Pizarro and and centers in the said city.
Vicenta met in Davao in 1960, for if that were
true, he did not need to be shown the scar on Ramon Pizarro shall make an
Vicenta's thigh in order for him to recognize accounting of the income he
her. Furthermore, it is improbable that a collected from himself and
woman whom he had not seen for 43 years those who are occupying the
would bare her thigh to him. The trial court land from the time he took
pointed out in its decision that: possession of it in 1936 when
his aunt Cornelia Pizarro died
... There is no proof that until the City of Davao takes
Vicenta Tan, daughter of possession of the property and
Dominga Garcia, was the one shall deliver the same to the
who in fact sent the picture city.
other than the claim of Pizarro
that he received the same Ramon Pizarro shall likewise
from her. Likewise, there is no deliver to the City of Davao the
proof that the woman in owner's duplicate of Transfer
Exhibit I is Vicenta Tan, Certificate of Title No. 296 (T-
daughter of Dominga Garcia, 2774) which is in his
except the testimony of possession, without costs. (p.
Pizarro that he received the 198, Record on Appeal.)
picture from her. An impostor
might have sent her picture to Pizarro appealed to the Court of Appeals (CA-
Pizarro foist herself upon him G.R. No. L-51786-R). He passed away on
as the daughter of Dominga June 16, 1975 during the pendency of the
Garcia. And this is the woman appeal.
whom Pizarro met in
Hongkong (p. 196, Record on On August 19,1975, a certain Luis Tan, alias
Appeal.) Chen Yek An claiming to be the long missing
son of Dominga Garcia, filed a motion for
The trial court found that Pizarro's testimonies intervention in the Court of Appeals. He
"ring with untruthfulness; they are replete with alleged that he had been living in mainland
inconsistencies" (p. 17, Record on Appeal) China; that he failed to come to the trial
and the witnesses who corroborated him were because of a government prohibition barring
"unworthy of belief" (p. 198, Record on his entry to the Philippines; that after
Appeal). diplomatic relations with China were restored,
he returned to this country to oppose the
On March 23, 1972, the trial court rendered escheat proceedings on the properties of his
judgment whose dispositive portion is quoted mother, Dominga Garcia.
below:
The City of Davao opposed the motion for
WHEREFORE, the land in the intervention for tardiness. The Court of
name of Dominga Garcia Appeals disallowed it because the trial had
covered by Transfer Certificate long been terminated, and the intervention, if
of Title No. 296 (T-2774) of the allowed, would unduly delay the adjudication
Register of Deeds of Davao of the rights of the original parties
City, as well as the rentals (p. 26, Rollo).
thereon, shall escheat and the
same are hereby assigned to
On April 2, 1976, the Court of Appeals commence escheat proceedings, did not take
affirmed the appealed decision of the trial effect until January 1, 1964. Although the
court. Vicenta Tan and/or her attorney-in-fact, escheat proceedings were still pending then,
Ramon Pizarro, appealed by petition for the Revised Rules of Court could not be
certiorari to this Court, alleging that the Court applied to the petition because to do so would
of Appeals erred: work injustice to the City of Davao. Rule 144
of the 1964 Rules of Court contains this
1. in ruling that the city of "saving" clause:
Davao had personality to file
the escheat petition; and These rules shall take effect
on January 1, 1964. They shall
2. in declaring that petitioner govern all cases brought after
Vicenta Tan may be presumed they take effect, and also all
dead. further proceedings in cases
pending, except to the extent
We find no merit in the petition for review. that in the opinion of the court,
their application would not be
feasible or would work
With respect to the argument that only the
injustice, in which event the
Republic of the Philippines, represented by
former procedure shall apply.
the Solicitor-General, may file the escheat
petition under Section 1, Rule 91 of the
Revised (1964) Rules of Court, the Appellate The Court of Appeals should have dismissed
Court correctly ruled that the case did not the appeal of Vicenta Tan and Ramon Pizarro
come under Rule 91 because the petition was earlier because the records show that Vicenta
filed on September 12,1962, when the was never a party in the escheat proceedings.
applicable rule was still Rule 92 of the 1940 The trial court's order dated February 4,
Rules of Court which provided: 1972 ordering that she be substituted for
Ramon Pizarro as oppositor (p. 16, Record on
Appeal) was set aside by the same court in its
Sec. 1. When and by
Order of March 23, 1972 (p. 178, Record on
whom,petition filed.—When a
Appeal) which was not appealed.
person dies intestate, seized
of real or personal property in
the Philippines, leaving no Vicenta Tan, if she still exists, was never
heirs or person by law entitled served with summons extra-territorially under
to the same, the municipality Section 17, Rule 14 of the Rules of Court. She
or city where the deceased never appeared in the trial court by herself, or
last resided, if he resided in counsel and never filed a pleading therein,
the Philippines, or hence, she never submitted to the court's
the municipality or city in jurisdiction.
which he had estate if he
resided out of the Philippines, Every action must be prosecuted and
may file a petition in the court defended in the name of the real party-in-
of first instance of the province interest (Sec. 2, Rule 3, Rules of Court; Ferrer
setting forth the facts, and vs. Villamor, 60 SCRA 106; Filipinas Industrial
praying that the estate of the Corp. vs. San Diego, 23 SCRA 706; 1 Moran
deceased be declared 144). Ramon Pizarro, the alleged
escheated. (Emphasis administrator of Dominga Garcia's property,
supplied.) was not a real party in interest. He had no
personality to oppose the escheat petition.
Rule 91 of the Revised rules of Court, which
provides that only the Republic of the The Court of Appeals did not err in affirming
Philippines, through the Solicitor General, may the trial court's ruling that Dominga Garcia
and her heirs may be presumed dead in the ... Its evidence preponderantly
escheat proceedings as they are, in effect, shows that in 1923 Dominga
proceedings to settle her estate. Indeed, while Garcia and her family left the
a petition instituted for the sole purpose of Philippines bound for China.
securing a judicial declaration that a person is Since then until the instant
presumptively dead cannot be entertained if petition was filed on
that were the only question or matter involved September 12, 1962, a period
in the case, the courts are not barred from covering about 39 years,
declaring an absentee presumptively dead as nothing had been heard about
an incident of, or in connection with, an action them. It is not known whether
or proceeding for the settlement of the all or any of them is still alive
intestate estate of such absentee. Thus ruled at present. No heir, devisee or
this Court in In re Szatraw 81 Phil 461: any other person entitled to
the estate of Dominga Garcia
... This presumption ... may has appeared and claimed the
arise and be invoked and same up to this time except
trade in a case, either in an Luis Tan whose status as
action or in a special alleged heir has still to be
proceeding, which is tried or proven in the proper court.
heard by, and submitted for-
decision to, competent court. The assertion of appellant
Independently of such an Pizarro that in 1960 he met
action or special proceeding, and talked with Vicenta Tan in
the presumption of death Claveria, Davao City, before
cannot be invoked, nor can it she went to China, and again
be made the subject of an in 1966, when he went to
action or special proceeding. Hongkong, was not believed
(Emphasis added.) by the court below. After
assessing and evaluating the
Direct evidence proving that Dominga Garcia, evidence, we find no sufficient
her husband and her children are in fact dead, cause to disturb the
is not necessary. It may be presumed under conclusion of the trial court
Article 390 of the New Civil Code which made on a finding of fact
provides: based on conflicting testimony
and depending largely upon
ART. 390. After an absence of the credibility of witnesses
seven years, it being unknown who testified before it. In our
whether or not the absentee review of the evidence, we
still lives, he shall be have not come across any
presumed dead for all material fact or circumstance
purposes, except for those of which the court a quo has
succession. overlooked and failed to
consider, or has
misunderstood and
The absentee shall not be
misapplied, and which if
presumed dead for the
properly appreciated and
purpose of opening his
accurately were held would
succession till after an
change the result of this
absence of ten years ...
litigation.
The Court of Appeals found that the City of
For one thing, if it is true that
Davao was able to prove the facts from which
Vicenta Tan left the
the presumption arises. It said:
Philippines only in 1960, as
 oppositor Pizarro would like in this petition for review where only legal
the court to believe, it has not questions may be raised
been explained why he (Sec. 2, Rule 45).
omitted to secure copies of her
departure papers from either WHEREFORE, finding no reversible error in
the Department of Foreign the decision of the Court of Appeals in CA-
Affairs, the Bureau of G.R. No. 51786-R, the petition for review is
Immigration or the former denied for lack of merit.
Chinese Embassy, and
present them to the court to SO ORDERED.
establish her existence as late
as 1960.

For another, if it is also true

that he met her in Hongkong in
1966, we are at a loss why he
failed to arrange for her return
to the Philippines. We do not
believe it would have been
difficult to do so, considering
that she had been a resident
of this country for more than
40 years and had been absent
for only about six years and
that her return was imperative
on account of a court action
against her property which
required her personal
presence. But even if this were
impossible, oppositor Pizarro
would not be left without any
other remedy. He could have
arranged for the taking of her
deposition in Hongkong by
means of letters rogatory
under Sections 11 and 12,
Rule 24 of the Revised Rules
of Court, in the same manner
that, according to him, he
arranged their meeting in the
Crown Colony sometime in
1966.

The unexplained failure of

oppositor Pizarro to take
advantage of any of these
remedies available to him
heavily tilts the scale against
the credibility of his claim.
(pp. 30-31, Rollo.)

These factual findings of the Court of Appeals

are binding on Us. They may not be disturbed