Remedy of an heir entitled to residue but not given his share Vda. De Lopez vs. Lopez, 35 SCRA 81

Remedy of an heir entitled to residue but not given his share

  1. Vda. De Lopez vs. Lopez, 35 SCRA 81


FACTS On October 13, 1962 Saturnina M. Vda. de Lopez, judicial administratrix of the estate of the deceased (Sp. Proc No. 3740), filed with the lower court a project of partition adjudicating the whole to herself and her legitimate children with the deceased. In an order dated March 30, 1964 the lower court approved the project of partition and declared the intestate proceeding "terminated and closed for all legal purposes." Seventeen days thereafter, or on April 16, 1964, the minors Dahlia and Roy, both surnamed Lopez,1 represented by their mother, Lolita B. Bachar, filed a motion to reopen the proceeding, together with a petition claiming that they were illegitimate children of, the deceased Emilio Lopez, born out of his extra-marital relations with Lolita B. Bachar, and asking that their rights as such be recognized and their shares in the estate given to them. The motion was opposed by the judicial administratrix on the ground that the proceeding had already been ordered terminated and closed and the estate was already in the hands of the distributees; and that the reopening of the intestate proceeding was not the proper remedy, which should be an independent action against the individual distributees. (1) whether or not the motion to reopen the estate proceeding was filed too late; and (2) whether or not such motion was the proper remedy.


RULING


(1) No, because the court's order declaring the intestate proceeding closed did not become final immediately upon its issuance.


Under the Rules, Section 2 of Rule 72 provides that "in the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in Special Proceedings." And judgments or orders in ordinary actions become final after thirty (30) days from notice to the party concerned. 


Here, appellants' motion to reopen was led only seventeen (17) days from the date of the order of closure. The remedy was therefore invoked on time.


(2) Yes because in the recent case of Uriarte vs. Uriarte, et al., G.R. Nos. L-21938-39, May 29, 1970, this Court, thru Justice Arsenio Dizon, pointed out that there are two alternatives for an acknowledged natural child to prove his status and interest in the estate of the deceased parent, to wit: (1) to intervene in the probate proceeding if it is still open; and (2) to ask for its reopening if it has already been closed.







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