G.R. No. L-10732; May 23, 1959
VICTORIANO GAMIS, petitioner, vs. THE COURT OF APPEALS and GERARDA GAMIS, respondents.

FACTS

On September 1946, Gerarda Gamis and her husband Sebastian Imperial filed a partition suit in the Court of First Instance of Sorsogon against her father Victoriano Gamis and brother Macario Gamis. The properties involved were parcels of land claimed to be the paraphernal property of the late Ciriaca Giro (Gerarda’s mother) and other parcels claimed to be conjugal property of the spouses Victoriano Gamis and Ciriaca Giro. After trial, the lower court rendered judgment on September 30, 1954, declaring parcels A and B and a 2/3 portion of parcel C as the paraphernal property of Ciriaca Giro, to be divided equally between Gerarda and Macario Gamis. It also declared several other parcels as conjugal property of Victoriano and Ciriaca, to be partitioned with one-half going to Victoriano and the other half divided equally between Gerarda and Macario. The court also ordered Victoriano to pay Gerarda P2,000 as damages. Victoriano Gamis appealed to the Court of Appeals, assigning several errors, including the trial court’s failure to declare him a forced heir of Ciriaca Giro entitled to a usufructuary share under Article 834 of the Old Civil Code. The Court of Appeals affirmed the lower court’s judgment with a slight modification on April 11, 1956, and held that Victoriano’s claim as a forced heir was raised for the first time on appeal and should be considered waived. His motion for reconsideration was denied, prompting this appeal by certiorari.

ISSUE

Whether the Court of Appeals erred in affirming the lower court’s decision to partition the paraphernal properties (parcels A, B, and C) equally between Gerarda and Macario Gamis, thereby ignoring the usufructuary right of the surviving spouse, Victoriano Gamis, under Article 834 of the Old Civil Code.

RULING

Yes. The Supreme Court modified the judgment of the Court of Appeals. Under Articles 807 and 834 of the Old Civil Code (the law applicable as Ciriaca Giro died on January 17, 1909), the surviving spouse is a forced heir entitled to a share in usufruct in the estate of the deceased spouse equal to the legitime of each legitimate child who has not received any betterment. This right is provided by law and cannot be ignored; any waiver must be express. The Court held that Victoriano Gamis did not waive this right. Although he did not assert it in his answer in the trial court—where his main contention was that the properties were not paraphernal—his assertion of this usufructuary right in his brief submitted to the Court of Appeals was timely and not inconsistent with preserving his alternative claim regarding the nature of the properties. Therefore, the petitioner Victoriano Gamis is entitled to a share in usufruct in the estate of his deceased wife, Ciriaca Giro.