jurisdiction of family courts (r.a. 8369)

Section 5. Jurisdiction offamily Courts. - The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:

a) Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than nine (9) years of age but not less than nine (9) years of age or where one or more of the victims is a minor at the time of the commission of the offense: Provided, That if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred.

The sentence, however, shall be suspended without need of application pursuant to Ptesidential Decree No. 603, otherwise known as the "Child and Youth Welfare Code";

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

c) Petitions for adoption of children and the revocation thereof;

d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of conjugal partnership of gains;

e) Petitions for support and/or acknowledgment;

f) Summary judicial proceedings brought under the provisions of Executive Order No. 209, otherwise known as the "Family Code of the Philippines";

g) Petitions for declaration of status of children as abandoned, dependent o neglected children, petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority and other cases cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series of 1986), and other related laws;

h) Petitions for the constitution of the family home;

i) Cases against minors cognizable under the Dangerous Drugs Act, as amended;

j) Violations of Republic Act No. 7610, otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658; and

k) Cases of domestic violence against:

1) Women - which are acts of gender based violence that results, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a woman's personhood, integrity and freedom movement; and

2) Children - which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development.

If an act constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties.

If any question involving any of the above matters should arise as an incident in any case pending in the regular courts, said incident shall be determined in that court.

Section 6. Use of Income. - All Family Courts shall be allowed the use of ten per cent (10%) of their income derived from filing and other court fees under Rule 141 of the Rules of Court for research and other operating expenses including capital outlay: Provided, That this benefit shall likewise be enjoyed by all courts of justice.

The Supreme Court shall promulgate the necessary guidelines to effectively implement the provisions of this Sec.

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Section 17.  x x x Transitory Provisions.  In areas where there are no Family Courts, the cases referred to in Sec. 5 of this Act shall be adjudicated by the Regional Trial Court.
 

NOTES on prescription and pacto de retro

PRESCRIPTION

From the foregoing premises, the trial court erred in finding prescription. Prescription, as a ground for a motion to dismiss, is adequate when the complaint, on its face, shows that the action has already prescribed.³⁰ Such is not the case in this instance. Respondents have duly averred continuous possession until 1991 when such was allegedly disturbed by Aqualab. Being in possession of the subject lots—hypothetically admitted by Aqualab—respondents’ right to reconveyance or annulment of title has not prescribed or is not time-barred.

Verily, an action for annulment of title or reconveyance based on fraud is imprescriptible where the plaintiff is in possession of the property subject of the acts.³¹ And the prescriptive period for the reconveyance of fraudulently registered real property is 10 years, reckoned from the date of the issuance of the certificate of title, if the plaintiff is not in possession.³² Thus, one who is in actual possession of a piece of land on a claim of ownership thereof may wait until his possession is disturbed or his title is attacked before taking steps to vindicate his right.³³

In the instant case, as hypothetically admitted, respondents were in possession until 1991, and until such possession is disturbed, the prescriptive period does not run. Since respondents filed their complaint in 1994, or three years after their possession was allegedly disturbed, it is clear that prescription has not set in, either due to fraud or constructive trust.

Besides, if the plaintiff, as the real owner of the property, remains in possession of the property, the prescriptive period to recover title and possession of the property does not run against him. In such a case, an action for reconveyance, if nonetheless filed, would be in the nature of a suit for quieting of title, an action that is imprescriptible.³⁴

THIRD DIVISION

G.R. No. 182673               October 5, 2009
AQUALAB PHILIPPINES, INC., Petitioner,
vs.
HEIRS OF MARCELINO PAGOBO
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Now, when Teodoro Husain failed to redeem the land within the stipulated period, i.e., January 9, 1925, its ownership became consolidated in the appellee. True the successive sales are in a private instrument, but they are valid just the same.⁵ By the delivery of possession of the land on April 2, 1919 the sale was consummated and title was transferred to the appellee

Now, when Rosendo Buhian failed to redeem the land within the stipulated period, its ownership became consolidated with Jose Flores. The delivery of possession of the land, and the handing of the land title from Rosendo to Jose, connotes the consummation of the sale, and the eventual transfer of said title to the latter.

ELIAS GALLAR, plaintiff-appellee, vs.HERMENEGILDA HUSAIN, ET AL., defendants.
BONIFACIO HUSAIN, defendant-appellant. EN BANC G.R. No. L-20954 ,May 24, 1967

NOTES ON THE HOMESTEAD LAW

SEC. 20. If at any time after the approval of the application and before patent is issued the applicant shall prove to the satisfaction of the Director of Lands that he has complied with all the requirements of the law, but cannot continue with his homestead, through no fault of his own, and there is a bona fide purchaser for the rights and improvements of the applicant on the land, and that the conveyance is not made for purposes of speculation, then the applicant, with the previous approval of the Secretary of Agriculture and Commerce, may transfer his rights to the land and improvements to any person legally qualified to apply for a homestead, and immediately after such transfer, the purchaser shall file a homestead application to the land so acquired and shall succeed the original homesteader in his rights and obligations beginning with the date of the approval of said application of the purchaser. Any person who has so transferred his rights may not agan apply for a new homestead. Every transfer made without the previous approval of the Secretary of Agriculture and Commerce shall be null and void and shall result in the cancellation of the entry and the refusal of the patent. (C. A. 141).

SEC. 118. Except in favor of the Government or any of its branches, units, or institutions, lands acquired under free patentor homestead provisions shall not be subject to encumbrance or alienation from the date of the approval of the application and for a term of five years from and after the date of the issuance of the patent or grant, nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period, but the improvements or crop on the land may be mortgaged or pledged to qualified persons, associations, or corporations.

No alienation, transfer, or conveyance of any homestead after five years and before twenty-five years after issuance of title shall be valid without the approval of the Secretary of Agriculture and Commerce, which approval shall not be denied except on constitutional and legal grounds. (Id.).

The legislative policy or intent is to conserve the land which a homesteader has acquired under the Public Land Law, as above stated, for him and his heirs. The legislative policy is so strong and consistent that the original period of five years from the issuance of the patent, within which period conveyance or sale thereof by the homesteader or his heirs was prohibited (section 116 of Act No. 2874) is now extended to 25 years if no approval of the Secretary of Agriculture and Commerce is secured. (Sec. 118, par. 2, C. a. No. 141, as amended by C. A. No. 456.) Provision has also been inserted authorizing the repurchase of the homestead when properly sold by the homesteader within five years from the date of the sale. (Sec. 119, C. A. No. 141.) This legislative intent and policy is also sought to be carried out in Section 20, as may be seen from the fact that transfer of homestead rights from a homesteader can only be justified upon proof satisfactory to the Director of Lands that the homesteader cannot continue with his homestead through no fault of his own. This is not the only requirement; a previous permission of the Secretary of Agriculture and Commerce should first be obtained, as it is also expressly provided that any transfer made without such previous approval is null and void and shall result in the cancellation of the entry and the refusal of the patent." (C. A. 141). As the conveyances now in question are claimed to have been and were evidently made under the provisions of section 20 of the Public Land Act, the important question to be determined is whether said conveyances satisfy requirements of said section 20 of the Act.

The stipulation of facts on this point is as follows:

That the heirs of Sergio Nicolas executed in or about 1947 a transfer of homestead rights over the land in question in favor of the defendants, which transfer was approved by the Secretary of Agriculture and Commerce on March 9, 1948; that with the approval of said transger of homestead rights, the defendants caused the issuance of a homestead patent in their favor, the title being evidenced by Original Certificate of Title No. P-558 of the land records of Nueva Ecija.

The above stipulation does not state expressly that the Director of Lands had, after investigation, been satisfied that the applicant or homesteader "has complied with all the requirements of the law, but cannot continue with the homestead through no fault of his own." Furthermore, according to the stipulation, the transfer was made in 1947 and approved by the Secretary of Agriculture in 1948 so that the conveyances were not made without the  previous approval of the Secretary of Agriculture and Commerce. So neither of the requirements of section 20 has been complied with.

But it is suggested that in accordance with the presumption of regularity of official acts the Director of Lands must have recommended the approval of the transfer. Admitting arguendo that such is the case, the conveyances still suffer from at least one fatal defect in that it does not appear that they had to be made because the homesteader could not continue with his homestead through no fault of his own. We may not and cannot indulge in presumptions on this necessary requirements, because the order for the issuance of the patent states just the opposite. The order for the issuance of the patent states expressly that the homesteader had already complied with all the requirements of the law with respect to cultivation, possession and otherwise, thus:

(5) That an investigation for the purpose of verifying the statements contained in the final proof papers was conducted by a representative of the Bureau of Lands, who found that the applicant has fully complied with the residence and cultivation requirements of the law; and

xxx           xxx           xxx

. . ., the undersigned is of the opinion that the applicant has complied with the requirements of law preliminary to the issuance of patent to the land applied for and already surveyed." (Exhibit A.).

The order for the issuance of a patent as well as the statements of fact therein contained, as above-quoted, conclusively disprove the existence of the requirement that the homesteader could not continue with the homestead through no fault of his own.

In a legal sense, furthermore, when the Director of Lands issues the order for the issuance of a patent, after the approval of the final proof, the right of the homesteader to the patent becomes absolute and then it becomes the ministerial duty of the corresponding officials of the Government to issue said patent. To all intents and purposes the order for the issuance of a patent is the same in effect as the issuance of a patent itself (Balboa vs. Farrales, 51 Phil., 499). And if the law (section 118, C. A. No. 114) prohibits the sale or conveyance of a homestead after the issuance of a patent, the prohibition should be extended, in view of the apparent policy of the law, to the date on which the order for the issuance of the patent is issued, which in this case is June 13, 1943.

Resuming what we have stated above, we find that the conveyances made by the heirs of the homesteader to the defendants heren in the year 1947 do not comply with the first requirements of section 20 of the Public Land Act that the Director of Lands is satisfied from proofs submitted by the homesteader that he (homesteader) could not continue with his homestead through no fault of his own, and with the second that a conveyance must be made with the prior or previous approval of the Secretary of Agriculture and Commerce; that from the date of an order for the issuance of a patent for a homestead the homesteader to all intents and purposes is considered as having the patent actually issued to himself, in so far as the prohibition contained in section 118 of the Public Land Act, otherwise the intent and policy of the law may be avoided by the homesteader by postponing the getting of his patent.

In accordance herewith the conveyances executed by the plaintiffs to the defendants are hereby declared null and void, the transfer certificate of title issued in the name of the defendants (P-558 of the Office of the Register of Deeds of Nueva Ecija) ordered cancelled, and the possession of the land returned to the plaintiffs upon return to the defendants of the amounts received as price for the sale. No damages or costs. So ordered.

NIEVES TINIO, ET AL., plaintiffs-appellants, vs.GREGORIO FRANCES, ET AL., defendants and appellees. EN BANC G.R. No. L-7747 ,November 29, 1955

 


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Question:

1. What is the effect of a homestead patent sold within the five year prohibitory period?

It appears that the patent covering the tract of land which includes the portion now disputed in this appeal was issued to the late Julio Sarabillo on December 9, 1938, and the sale of the portion of two hectares to the Roman Catholic Church took place on December 31, 1940. This shows that the sale was made before the expiration of the period of five years from the date of the issuance of the patent and as such is null and void it being in contravention of section 118 of Commonwealth Act No. 141. The fact that it was expressly stipulated in the deed of sale that it was subject to the approval of the Secretary of Agriculture and Natural Resources and the approval was sought and obtained on March 26, 1949, or more than ten years after the date of the issuance of the patent, or the fact that the deed of sale was registered in the Office of the Register of Deeds only on March 29, 1950, and was annotated on the back of the title on that date, cannot have the effect of validating the sale for the reason that the approval of the Secretary of Agriculture and Natural Resources does not have any valid curative effect. That approval is merely a formality which the law requires if the sale is effected after the term of five years but before the expiration of a period of 25 years for the purpose of testing the validity of the sale on constitutional grounds. But, as was ruled by this Court, the absence of such formality will not render the transaction null and void (Evangelista vs. Montaño,¹ G.R. No. L-5567).

 What is important is the period within which the sale is executed. The provision of the law which prohibits the sale or encumbrance of the homestead within five years after the grant of the patent is mandatory. This cannot be obviated even if official approval is granted beyond the expiration of that period, because the purpose of the law is to promote a definite public policy, which is "to preserve and keep in the family of the homesteader that portion of public land which the State has gratuitously given to him." [Pascua vs. Talens,² 45 Off. Gaz., No. 9, (Supplement) 413.]

CATALINA DE LOS SANTOS, in her capacity as administratrix of the intestate estate of the decased Julio Sarabillo, plaintiff-appellee, vs.ROMAN CATHOLIC CHURCH OF MIDSAYAP, Most Rev. LUIS DEL ROSARIO and Rev. GERARD MONGEAU, defendants-appellants.EN BANC G.R. No. L-6088   February 25, 1954

The claim that the sale can be validated because it was made with the avowed aim that the property would be dedicated solely to educational and charitable purposes is likewise unmeritorious even considering the law invoked by counsel for appellants in favor of its validity. It is true that under section 121, Commonwealth Act No. 141, a corporation, association, or partnership may acquire any land granted as homestead if the sale is done with the consent of the grantee and the approval of the Secretary of Agriculture and Natural Resources and is solely for commercial, industrial, educational, religious, or charitable purposes, or for a right of way, and apparently there is no limitation therein as to the time within which such acquisition may be made. But this provision should be interpreted as a mere authority granted to a corporation, association or partnership to acquire a portion of the public land and not as an unbridled license to acquire without restriction for such would be giving an advantage to an entity over an individual which finds no legal justification. It is our opinion that the authority granted by section 121 should be interpreted as subject to the condition prescribed in section 118, namely, that the acquisition should be after the period of five years from the date of the issuance of the patent.

But appellants now contend that even if it be declared that the sale made to them by the homesteader is null and void yet its immediate effect would be not the return of the land to appellee but rather its reversion to the State wherein the Government is the interested party. (Section 124 of the Public Land Act). Appellants further claim that the present action cannot be maintained by the appellee under the principle of pari delicto.

The principles thus invoked by appellants are correct and cannot be disputed. They are recognized not only be our law but by our jurisprudence. Section 124 of the Public Land Act indeed provides that any acquisition, conveyance or transfer executed in violation of any of its provisions shall be null and void and shall produce the effect of annulling and cancelling the grant or patent and cause the reversion of the property to the State, and the principle of pari delicto has been applied by this Court in a number of cases wherein the parties to a transaction have proven to be guilty of having effected the transaction with knowledge of the cause of its invalidity. (Bough & Bough vs. Cantiveros & Hanopol, 40 Phil., 210, 216; Rellosa vs. Gaw Chee Hun,³ G.R. No. L-1411; Trinidad Gonzaga de Cabauatan vs. Uy Hoo, et al.,⁴ G.R. No. L-2207; Caoile vs. Yu Chiao Peng,⁵ G.R. No. L-4068; Talento, et al. vs. Makiki, et al.,⁶ G.R. No. L-3529.) But we doubt if these principles can now be invoked considering the philosophy and the policy behind the approval of the Public Land Act. The principle underlying pari delicto as known here and in the United States is not absolute in its application. It recognizes certain exceptions one of them being when its enforcement or application runs counter to an avowed fundamental policy or to public interest. As stated by us in the Rellosa case, "This doctrine is subject to one important limitation, namely, "whenever public policy is considered advanced by allowing either party to sue for relief against the transaction." (Rellosa vs. Gaw Chee Hu, supra.)

The case under consideration comes within the exception above adverted to. Here appellee desires to nullify a transaction which was done in violation of the law. Ordinarily the principle of pari delicto would apply to her because her predecessor-in-interest has carried out the sale with the presumed knowledge of its illegality (8 Manresa 4th ed., pp. 717-718), but because the subject of the transaction is a piece of land, public policy requires that she, as heir, be not prevented from re-acquiring it because it was given by law to her family for her home and cultivation. This is the policy on which our homestead law is predicated (Pascua vs. Talens, supra). This right cannot be waived. "It is not within the competence of any citizen to barter away what public policy by law seeks to preserve" (Gonzalo Puyat & Sons, Inc. vs. Pantaleon de las Ama, et al., 74 Phil., 3). We are, therefore, constrained to hold that appellee can maintain the present action it being in furtherance of this fundamental aim of our homestead law.

As regards the contention that because the immediate effect of the nullification of the sale is the reversion of the property to the State appellee is not the proper party to institute it but the State itself, that is a point which we do not have, and do not propose, to decide. That is a matter between the State and the Grantee of the homestead, or his heirs. What is important to consider now is who of the parties is the better entitled to the possession of the land while the government does not take steps to assert its title to the homestead. Upon annulment of the sale, the purchaser's claim is reduced to the purchase price and its interest. As against the vendor or his heirs, the purchaser is no more entitled to keep the land than any intruder. Such is the situation of the appellants. Their right to remain in possession of the land is no better than that of appellee and, therefore, they should not be allowed to remain in it to the prejudice of appellee during and until the government takes steps toward its reversion to the State. (See Castro vs. Orpiano, G.R. No. L-4094, November 29, 1951.)

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 It is important to keep in mind in this connection that the warrant of approval of the sales by the Secretary of Agriculture and Natural Resources did not, in our opinion, invalidate the sales. Upon the facts upon the instant case, the required approval may be regarded as directory. Section 118 of Commonwealth Act. No. 141, as amended, specifically enjoins that the approval by the Department Secretary "shall not be denied except on constitutional and legal grounds." There being no allegation that there were constitutional or legal impediments to the sales, and no pretense that if the sales had been submitted to the Secretary concerned they would have been disapproved, approval was a ministerial duty, to be had as a matter of course and demandable if refused. For this reason, and if necessary, approval may not be applied for and its effect will be to ratify and adopt the transaction as if they had been previously authorized. 

JUAN EVANGELISTA, petitioner, vs.GUILLERMO MONTAÑO, FLORENCIO TAYTAY, and TITO PAZ, respondenTEN BANC G.R. No. L-5567             May 29, 1953

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  In several cases¹ the doctrine has been set that the requirement for the approval of the Secretary of Agriculture and Natural Resources prescribed in Section 118 of Commonwealth Act 141 (Public Lands law) is merely directory and its absence does not invalidate any alienation, transfer or conveyance of the of the homestead after 5 years and before 25 years from the issuance of the title. Upon the other hand, we find no provision of law, and none has been cited, which prohibits the encumbrance of the homestead by the purchaser thereof during the statutory period of 5 years within which the vendor-homesteader may repurchase the same as provided in Section 119 of Commonwealth Act 141. The prohibition against such encumbrance or alienation, as prescribed in Section 118 of the same law, refers to those constituted by the homesteader himself within the term of 5 years from and after the date of the issuance of the patent or grant. In the present case, the Original Certificate of Title obtained by Rosillosa as homesteader was issued in 1933 long before he sold the land in 1944 and the encumbrance thereof by the purchaser Abel in 1947. It must be observed, of course, that such encumbrance or alienation, is subject to the right of the homesteader to repurchase the land within 5 years from the date of conveyance. 


MERCEDES RAFFIÑAN, petitioner-appellee, vs.FELIPE L. ABEL, defendant, and FORTUNATO ROSILLOSA, defendant-appellant.EN BANC,G.R. No. L-17082 ,April 30, 1962

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. . . any challenge to the validity of a will, any objection to the authentication thereof, and every demand or claim which any heir, legatee or party interested in a testate or intestate succession may make, must be acted upon and decided within the same special proceedings, not in a separate action, and the same judge having jurisdiction in the administration of the estate shall take cognizance of the question raised, inasmuch as when the day comes he will be called upon to make distribution and adjudication of the property to the interested parties.

Pertinent to the issue interposed by the petitioners in G.R. No. L-45965 is Section 1, Rule 90 of the Rules of Court which reads:

Sec. 1. When order for distribution of residue made. — When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above-mentioned has been made or provided for, unless the distributees, or any of them give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.

Applying this rule, in the cases of De Jesus v. Daza, ³³ and Torres v. Encarnacion, ³⁴ the Court said:

. . . (T)he probate court, having the custody and control of the entire estate, is the most logical authority to effectuate this provision, within the estate proceeding, said proceeding being the most convenient one in which this power and function of the court can be exercised and performed without the necessity of requiring the parties to undergo the incovenience and litigate an entirely different action.

Some decisions of the Court pertinent to the issue that the probate court has the jurisdiction to settle the claims of an heir and the consequent adjudication of the properties, are worth mentioning. In the cases of Arroyo v. Gerona, ³⁵ and Benedicto v. Javellana, ³⁶ this Court said:

. . . any challenge to the validity of a will, any objection to the authentication thereof, and every demand or claim which any heir, legatee or party interested in a testate or intestate succession may make, must be acted upon and decided within the same special proceedings, not in a separate action, and the same judge having jurisdiction in the administration of the estate shall take cognizance of the question raised, inasmuch as when the day comes he will be called upon to make distribution and adjudication of the property to the interested parties. . . . (Emphasis supplied)

The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts to which each distributee is entitled . . .. ³⁷ A project of partition is merely a proposal for the distribution of the heredity estate which the court may accept or reject. It is the court that makes that distribution of the estate and determines the persons entitled thereto. ³⁸

G.R. No. L-56249 May 29, 1987 IN THE MATTER OF THE TESTATE ESTATE OF THE DECEASED REV. FATHER TEODORO ARANAS, RAMONA B. VDA. DE ARANAS, ADELIA B. ARANAS-FERNANDEZ, HEIRS OF THE LATE RODULFO B. ARANAS, ETC., ET AL., petitioners, vs. VICENTE B. ARANAS AND HON. LUIS B. MANTA,

A cursory reading of the English translation of the Last Will and Testament shows that it was the sincere intention and desire of the testator to reward his nephew Vicente Aranas for his faithful and unselfish services by allowing him to enjoy one-half of the fruits of the testator's third group of properties until Vicente's death and/or refusal to act as administrator in which case, the administration shall pass to anyone chosen by Carmelo Aranas among his sons and upon Carmelo's death, his sons will have the power to select one among themselves. Vicente Aranas therefore as a usufructuary has the right to enjoy the property of his uncle with all the benefits which result from the normal enjoyment (or exploitation) of another's property, with the obligation to return, at the designated time, either the same thing, or in special cases its equivalent. This right of Vicente to enjoy the fruits of the properties is temporary and therefore not perpetual as there is a limitation namely his death or his refusal. Likewise his designation as administrator of these properties is limited by his refusal and/or death and therefore it does not run counter to Art. 870 of the Civil Code relied upon by the petitioners. Be it noted that Vicente Aranas is not prohibited to dispose of the fruits and other benefits arising from the usufruct. Neither are the naked owners (the other heirs) of the properties, the usufruct of which has been given to Vicente Aranas prohibited from disposing of said naked ownership without prejudice of course to Vicente's continuing usufruct. To void the designation of Vicente Aranas as usufructuary and/or administrator is to defeat the desire and the dying wish of the testator to reward him for his faithful and unselfish services rendered during the time when said testator was seriously ill or bed-ridden. The proviso must be respected and be given effect until the death or until the refusal to act as such of the instituted usufructuary/administrator, after which period, the property can be properly disposed of, subject to the limitations provided in Art. 863 of the Civil Code concerning a fideicommissary substitution, said Article says:

A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator.

It is contended by petitioners that the ruling made by respondent court dated November 17, 1977 was already final and not subject to correction as what was set aside and to be reheard was only regarding the determination of additional heirs. Such contention is not worthy of credence. Respondents in their Memorandum allege and it is not disputed by petitioners that the order of November 17, 1977 has not yet become final because it was received only on January 12, 1978 by the counsel for respondent Vicente Aranas and the Motion for Reconsideration and to declare testamentary and intestate heirs dated January 17, 1978 was filed by the said respondent within the reglementary period. Besides the validity or invalidity of the usufructuary dispositions would affect the determination of heirs.

As to petitioners' allegation that the order of July 16, 1980 is without basis, the record shows that during the hearing of the urgent motion for reconsideration and to declare testamentary and intestate heirs, it was proven conclusively by the said respondent Vicente B. Aranas that he was instituted as a remunerative legatee per mandate of the Last Will and Testament by way of usufructuary. Likewise the right of the Roman Catholic Church as the other usufructuary legatee for the duration of the statutory lifetime of a corporation, that is, 50 years from the date of the effectivity of said legacy, was also established. ⁷

The assumption of risk doctrine holds plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it.

In personal injury cases, it’s essential to prove defendant owed a duty to plaintiff, that duty was breached and the breach caused the injury.
What many plaintiffs don’t realize is that they too owe a duty of care – to themselves. They have to take reasonable measures to protect themselves from known or knowable hazards, or else risk forfeiting the right to recover damages for it.
Thus, a key defense in these cases is the “assumption of risk.” The assumption of risk doctrine holds plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it.

This was the defense used in Griffin v. Haunted Hotel, Inc., before the California Court of Appeal, Fourth Appellate District, Division One.
According to court records, plaintiff purchased a ticket to experience an outdoor haunted house, which involved actors popping out of dark spaces, just inches from patrons. Actors wield knives, chainsaws, axes and severed body parts. There were also strobe lights, eerie music and actors who frequently chase patrons who run away. An audio tape played to patrons before the attraction warned of this possibility, and stated the biggest cause of minor injuries was running away. Patrons were warned not to run, and to take note of uneven ground with tree roots, rocks, etc.
Plaintiff, who was with friends, passed what he thought was the exit and was distracted with laughter among friends when the group was unexpectedly confronted with a final scare. An actor was holding a gas-powered chainsaw (however, the chain had been removed), and revved it as he approached the group.
The actor started to chase the plaintiff, who ran in fear. As he was fleeing, plaintiff fell and was injured as a result.
He later filed a personal injury lawsuit against the company that operates the haunted house, alleging assault and negligence. In his lawsuit, he took note of the fact that 15 people who had fallen as they ran from the chainsaw-wielding actor near the exit. Three other falls occurred the same night as plaintiff’s. However, none were injured.
Defendant countered the lawsuit with a motion for summary judgment, citing the assumption of risk doctrine. In California, the assumption of risk doctrine holds there isn’t a duty to eliminate risks or protect plaintiff from danger that is inherent to a certain sport or activity. Plaintiff assumes that risk while engaging in the activity.
In Florida, assumption of risk is often considered in conjunction with comparative fault. That is, jurors consider it as part of the level of fault a plaintiff assumes for his or her own injuries. It can be used in lawsuits pertaining to hazardous occupation injuries, per F.S. 769.04.
In Griffin, trial court granted defendant’s motion for summary judgment, finding there was no breach of any duty to plaintiff. A key point of contention was whether the incident occurred inside the attraction. The court ruled the incident did occur inside the event, and plaintiff had assumed the risk of extreme fear when he entered.
The appeals court affirmed, noting that a patron of a haunted house can expect to be frightened, run and even fall and that such is the fundamental nature of a haunted house or haunted attraction. Further, the court noted, there was no indication defendant increased the injury risk beyond what was inherent by acting recklessly. – Injury Lawyer Florida

The doctrine of assumption of risk is also known as volenti non fit injuria.

Assumption of Risk

A defense, facts offered by a party against whom proceedings have been instituted to diminish a plaintiff's Cause of Action or defeat recovery to an action in Negligence, which entails proving that the plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it.

Under the federal rules of Civil Procedure, assumption of the risk is an Affirmative Defense that the defendant in a negligence action must plead and prove. The doctrine of assumption of risk is also known as volenti non fit injuria.

Situations that encompass assumption of the risk have been classified in three broad categories. In its principal sense, assumption of the risk signifies that the plaintiff, in advance, has consented to relieve the defendant of an obligation of conduct toward him or her and to take a chance of injury from a known risk ensuing from what the defendant is to do or leave undone. The consequence is that the defendant is unburdened of all legal duty to the plaintiff and, therefore, cannot be held liable in negligence.

A second situation occurs when the plaintiff voluntarily enters into some relation with the defendant, knowing that the defendant will not safeguard the plaintiff against the risk. The plaintiff can then be viewed as tacitly or implicitly consenting to the negligence, as in the case of riding in a car with knowledge that the steering apparatus is defective, which relieves the defendant of the duty that would ordinarily exist.

In the third type of situation, the plaintiff, cognizant of a risk previously created by the negligence of the defendant, proceeds voluntarily to confront it, as when he or she has been provided with an article that the plaintiff knows to be hazardous and continues to use after the danger has been detected. If this is a voluntary choice, the plaintiff is deemed to have accepted the situation and assented to free the defendant of all obligations.

In all three situations, the plaintiff might be acting in a reasonable manner and not be negligent in the venture, because the advantages of his or her conduct outweigh the peril. The plaintiff's decision might be correct, and he or she might even act with unusual circumspection because he or she is cognizant of the danger that will be encountered. If that is the case, the defense operates to refute the defendant's negligence by denying the duty of care that would invoke this liability, and the plaintiff does not recover because the defendant's conduct was not wrongful toward the plaintiff.

With respect to the second and third situations, however, the plaintiff's conduct in confronting a known risk might be in itself unreasonable, because the danger is disproportionate to the advantage the plaintiff is pursuing, as when, with other transportation available, the individual chooses to ride with an intoxicated driver. If this occurs, the plaintiff's conduct is a type of contributory negligence, an act or omission by the plaintiff that constitutes a deficiency in ordinary care, which concurs with the defendant's negligence to comprise the direct or proximate cause of injury. In such cases, the defenses of assumption of risk and contributory negligence overlap.

In this area of intersection, the courts have held that the defendant can employ either defense or both. Since ordinarily either is sufficient to bar the action, the defenses have been distinguished on the theory that assumption of risk consists of awareness of the peril and intelligent submission to it, while contributory negligence entails some deviation from the standard of conduct of a reasonable person, irrespective of any remonstration or unawareness displayed by the plaintiff. The two concepts can coexist when the plaintiff unreasonably decides to incur the risk or can exist independently of each other. The distinction, when one exists, is likely to be one between risks that were in fact known to the plaintiff and risks that the individual merely might have discovered by the exercise of ordinary care.

Express Agreement

The parties can enter into a written agreement absolving the defendant from any obligation of care for the benefit of the plaintiff and liability for the consequence of conduct that would otherwise constitute negligence. In the ordinary case, public policy does not prevent the parties from contracting in regard to whether the plaintiff will be responsible for the maintenance of personal safety. A person who enters into a lease or rents an animal, or enters into a variety of similar relations entailing free and open bargaining between the parties, can assent to relieving the defendant of the obligation to take precautions and thereby render the defendant free from liability for negligence.The courts have refused to uphold such agreements, however, if one party possesses a patent disadvantage in bargaining power. For example, a contract exempting an employer from all liability for negligence toward employees is void as against public policy. A carrier transporting cargo or passengers for hire cannot evade its public responsibility in this manner, even though the agreement limits recovery to an amount less than the probable damages. The contract has been upheld, however, when it represents a realistic attempt to assess a value as liquidated or ascertained damages in advance, and the carrier graduates its rates in accordance with such value, so that complete protection would be available to the plaintiff upon paying a higher rate. The same principles apply to innkeepers, public warehousemen, and other professional bailees—such as garage, parking lot, and check-room attendants—on the basis that the indispensable necessity for their services deprives the customer of all meaningful equal bargaining power.

An express agreement can relieve the defendant from liability for negligence only if the plaintiff comprehends its terms. If the plaintiff is not cognizant of the provision in his or her contract, and a reasonable person in the same position would not have known of it, it is not binding upon the individual, and the agreement fails for lack of mutual assent. The expressed terms of the agreement must apply to the particular misconduct of the defendant. Such contracts generally do not encompass gross, willful, wanton, or reckless negligence or any conduct that constitutes an intentional tort.

Implied Acceptance of Risk

In a majority of cases, the consent to assume the risk is implied from the conduct of the plaintiff under the circumstances. The basis of the defense is not contract, but consent, and it is available in many cases in which no express agreement exists.

By entering voluntarily into any relationship or transaction in which the negligence of the defendant is evident, the plaintiff is deemed to accept and consent to it, to assume responsibility for personal safety, and to unburden the defendant of the obligation. Spectators at certain sports events assume all the known risks of injury from flying objects. Plaintiffs who enter business premises as invitees and detect dangerous conditions can be deemed to assume the risks when they continue voluntarily to encounter them.

Knowledge of Risk

The plaintiff will not normally be regarded as assuming any risk of either conditions or activities of which he or she has no knowledge. The plaintiff must not merely create the danger but must comprehend and appreciate the danger itself.

The applicable standard is basically subjective in nature, tailored to the particular plaintiff and his or her situation, as opposed to the objective standard of the reasonable person of ordinary prudence, which is employed in contributory negligence. If because of age, lack of information, or experience, the plaintiff does not comprehend the risk entailed in a known situation, the individual will not be regarded as consenting to assume it. Failure to exercise ordinary care to discover the danger is not encompassed within assumption of risk, but in the defense of contributory negligence.

An entirely subjective standard, however, allows the plaintiff considerable latitude in testifying that he or she did not know or comprehend the risk. To counteract the adverse effects of the application of this liberal standard, courts have interjected an objective element by holding that a plaintiff cannot evade responsibility by alleging that he or she did not comprehend a risk that must have been obvious.

A denial of cognizance of certain matters that are common knowledge in the community is not credible, unless a satisfactory explanation exists. As in the case of negligence itself, there are particular risks that any adult must appreciate, such as falling on ice, lifting heavy objects, and driving a defective vehicle. In addition, a plaintiff situated for a considerable length of time in the immediate vicinity of a hazardous condition is deemed to have detected and to comprehend the ordinary risks entailed in that situation. If the person completely understands the risk, the fact that he or she has temporarily forgotten it does not provide protection.

Even when there is knowledge and appreciation of a risk, the plaintiff might not be prohibited from recovery when the circumstances introduce a new factor. The fact that the plaintiff is totally cognizant of one risk, such as the speed of a vehicle, does not signify that he or she assumes another of which he or she is unaware, such as the intoxication of the driver. Although knowledge and understanding of the risk incurred are encompassed within the concept of assumption of the risk, it is possible for the plaintiff to assume risks of whose specific existence he or she is unaware—to consent to venture into unknown conditions. In a majority of instances, the undertaking is express, although it can arise by implication in a few cases. A guest who accepts a gratuitous ride in an automobile has been regarded as assuming the risk of defects in the vehicle, unknown to the driver.

Voluntary Assumption

The doctrine of assumption of risk does not bar the plaintiff from recovery unless the individual's decision is free and voluntary. There must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct. A risk is not viewed as assumed if it appears from the plaintiff's words or from the circumstances, that he or she does not actually consent. If the plaintiff relinquishes his or her better judgment upon assurances that the situation is safe or that it will be remedied or upon a promise of protection, the plaintiff does not assume the risk, unless the danger is so patent and so extreme that there can be no reasonable reliance upon the assurance.

Even when the plaintiff does not protest, the risk is not assumed when the conduct of the defendant has provided the individual with no reasonable alternative, causing him or her to act under duress. When the defendant creates a peril, such as a burning building, those who dash into it to save their own property or the lives or property of others do not assume the risk when the alternative is to permit the threatened injury to occur. If, however, the danger is disproportionate to the value of the interest to be protected, the plaintiff might be charged with contributory negligence in regard to his or her own unreasonable conduct. When a reasonably safe alternative exists, the plaintiff's selection of the hazardous route is free and can constitute both contributory negligence and assumption of risk.

The defendant has a legal duty, which he or she is not at liberty to refuse to perform, to exercise reasonable care for the plaintiff's safety, so that the plaintiff has a parallel legal right to demand that care. The plaintiff does not assume the risk while using the defendant's services or facilities, notwithstanding knowledge of the peril, when he or she acts reasonably, and the defendant has provided no reasonable alternative other than to refrain completely from exercising the right. A common carrier or other public utility which has negligently furnished a dangerously defective set of steps cannot assert assumption of risk against a patron who uses the steps as the sole convenient means of access to the company's premises. The same principle applies to a city maintaining a public roadway or sidewalk or other public area that the plaintiff has a right to use and premises onto which the plaintiff has a contractual right to enter. When a reasonable alternative is available, the plaintiff's recalcitrance in unreasonably encountering danger constitutes contributory negligence, as well as assumption of risk.

Violation of Statute

The plaintiff still assumes the risk where the defendant's negligence consists of the violation of a statute. A guest who accepts a nighttime ride in a vehicle with inoperative lights has been regarded as consenting to relieve the defendant of the duty of complying with the standard established by the statute for protection and cannot recover for injuries. Particular statutes, however, such as child labor acts and safety statutes for the benefit of employees, safeguard the plaintiff against personal inability to protect himself or herself due to improvident judgment or incapability to resist certain pressures. Since the basic objective of such statutes would be frustrated if the plaintiff were allowed to assume the risk, it is generally held that the plaintiff cannot do so, either expressly or impliedly.

Abolition of the Defense

Numerous states have abrogated the defense of assumption of risk in automobile cases through the enactment of no-fault insurance legislation or comparative negligence acts. The theories underlying its Abolition are that it serves no purpose that is not completely disposed of by the other doctrines, it increases the likelihood of confusion, and it bars recovery in meritorious cases.

Assumption of risk is not a defense under state Workers' Compensation laws or in federal employer's liability act actions. The workers' compensation laws abolished the defense in recognition of the severe economic pressure a threatened loss of employment exerted upon workers. A worker was deemed to have assumed the risk even when acting under a direct order that conveyed an explicit or implicit threat of discharge for insubordination.

The federal Employers' Liability Act (45 U.S.C.A. § 51 et seq. [1908]) was intended to furnish an equitable method of compensation for railroad workers injured within the scope of their employment. The act provides that an employee is not deemed to have assumed the risks of employment when injury or death ensued totally or partially from the negligence of the carrier's officers, agents, or employees, or from the carrier's violation of any statute enacted for the safety of employees, where the infraction contributed to the employee's injury or death. This doctrine was abolished because of the extreme hardship it imposed on workers in this dangerous line of employment.