[ G.R. No. 20098. September 21, 1923 ] 46 Phil. 847
[ G.R. No. 20098. September 21, 1923 ]
INTESTATE ESTATE OF FELIX ENRIQUEZ, DECEASED. FELISA DIAZ, PETITIONER AND APPELLANT, VS. BASILIA SOLAPCO, OBJECTOR AND APPELLEE. D E C I S I O N
ROMUALDEZ, J.:
The question at issue in this appeal is about an order of the Court of First Instance of Rizal, entered May 18, 1922, approving a plan of partition submitted by Basilia Solapco, which order is assailed by Felisa Diaz, the administratrix of the estate involved in this proceeding.
The errors assigned to such an order are made to consist in the failure of the trial court to make findings of fact in said order; in preferring the plan of partition approved without the parties having presented any proof pro or con; in appointing a committee of partition; in fixing the usufruct of the widow; in approving the aforesaid plan of partition; in not taking into consideration the final account of the administratrix already approved by that court; and in entering the order appealed from.
Pending this proceeding for the administration of the estate of the deceased Felix Enriquez, of whom the administratrix Felisa Diaz is the surviving spouse, the latter and the relatives of the deceased, his legal heirs, namely, Basilia Solapco, Santos Solapco, and Brigida Juanjuangco, presented different plans of partition of the said estate, of which plans, that submitted by the latter, found on pages 22-34 of the bill of exceptions, is the one that met with the approval of the court, as above stated.
There is no question but the widow Felisa Diaz, as well as the aforesaid relatives of the deceased, has a right to share in the above-mentioned inheritance. What is disputed by the parties is the individual allotment of determinate property to the one or the other, for the solution of which controversy the procedure provided by section 762 of the Code of Civil Procedure must be followed, after adjudicating to each coheir his undivided portion in accordance with section 753 of the said Code.
It does not appear that the court has adjudicated to each of the heirs his undivided portion, nor that the procedure provided by section 762 of the said Code was followed.
For the purposes of this decision, it is unnecessary to discuss in detail the errors assigned.
The order appealed from is reversed, without special pronouncement as to costs, and it is ordered that the trial court proceed to the distribution of the inheritance in accordance with sections 753 and 762 and others in harmony therewith of the Code of Civil Procedure. So ordered.
Araullo, C.J., Johnson, Street, Malcolm, Avanceña, Villamor, and Johns, JJ., concur.