EN BANC

[G.R. No. L-5267. October 27, 1953.]

LUZ HERMOSA, as administratrix of the Intestate Estate of

Fernando Hermosa, R., and FERNANDO HERMOSA, JR. , petitioners, vs .
EPIFANIO M. LONGARA , respondent.

Manuel O. Chan for petitioners.

Jacinto R. Bohol for respondents.

SYLLABUS

1. OBLIGATIONS AND CONTRACTS; CONDITIONAL OBLIGATIONS; A

CONDITION THAT DOES NOT DEPEND UPON THE EXCLUSIVE WILL OF THE DEBTOR;
SUSPENSIVE CONDITIONS. — The condition of the obligation was that payment was to
be made "as soon as he (obligor) receives funds derived from the sale of his property in
Spain." The will to sell on the part of the debtor (intestate) was present in fact, or
presumed legally to exist, although the price and other conditions thereof were still
within his discretion and nal approval. But in addition to this acceptability of the sale
to him (obligor), there were still other conditions that had to concur to effect the sale,
mainly that of the presence of a buyer, ready, able and willing to purchase the property
under the conditions demanded by the vendor. Without such a buyer the sale could not
be carried out or the proceeds thereof sent to the islands. Held: The condition does not
depend exclusively upon the will of the debtor, but also upon other circumstances
beyond his power or control. If the condition were "if he decides to sell his house," or "if
he likes to pay the sums advanced," or any other condition of similar import implying
that upon him (the debtor) alone payment would depend, the condition would be
potestativa, dependent upon his will or discretion. The condition, as stated above,
implies that the obligor had already decided to sell his house, or at least that he had
made his creditors believe that he had done so, and that all that was needed to make
his obligation (to pay his indebtedness) demandable is that the sale be consummated
and the price thereof remitted to the islands. The condition of the obligation was not a
purely potestative one, depending exclusively upon the will of the obligor, but a mixed
one, depending partly upon chance, i. e., the presence of a buyer of the property for the
price and under the conditions desired by the obligor. The obligation is clearly governed
by the second sentence of article 1115 of the old Civil Code (8 Manresa, 126). The
condition is, besides, a suspensive condition, upon the happening of which the
obligation to pay is made dependent. And upon the happening of the condition, the debt
became immediately due and demandable. (Article 1114, old Civil Code; 8 Manresa,
119.)
2. ID., EVIDENCE, PRESUMPTION OR INFERENCE FROM PRESERVATION AND
POSSESSION OF EVIDENCE OF INDEBTEDNESS. — The sale was not affected in the
lifetime of the debter (the intestate), but after his death and by his administrator, the
very wife of the claimant. There was no evidence to show that the claim was the
product of a collusion or connivance between the administratrix and the claimant. The
receipts of the advances were preserved. Held: That there was really a promise made
by the intestate to pay for the credit advances, may be implied from the fact that the
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 receipts thereof had been preserved; had the advances been made without intention of
demanding their payment later, said receipts would not have been preserved. Regularity
of the advances and the close relationship between the intestate and the claimant also
support this contention.
3. ID.; SUSPENSIVE CONDITION WHICH TOOK PLACE AFTER OBLIGOR'S
DEATH; STATUTE OF LIMITATIONS. — The fact that the suspensive condition took
place after the death of the debtor, and that the advances were made more than ten
years before the sale are immaterial (4 Sanchez Roman, p. 122). The obligation
retroacts to the date when the contract was entered into, and all amounts advanced
from the time of the agreement became due upon the happening of the suspensive
condition. As the obligation to pay became due and demandable only when the house
was sold and the proceeds received in the islands, the action to recover the same only
accrued, within the meaning of the statute of limitations, on the date the money became
available here; hence, the action to recover the advances has not yet prescribed.
4. ID.; DESCENT AND DISTRIBUTION; GRANDSON'S ALLOWANCE, A
PERSONAL OBLIGATION. — Credits furnished the intestate's grandson after his
(intestate's) death should not be allowed. Even if authorization to furnish necessaries to
his grandson may have been given, this authorization could not be made to extend after
his death, for two obvious reasons: (1) The obligation to furnish support is personal
and is extinguished upon the death of the person obliged to give support (article 150,
old Civil Code); and (2) upon the death of a principal (the intestate), his agent's authority
or authorization is deemed terminated (article 1732, old Civil Code).
5. ID.; STATUTE OF NONCLAIMS; APPEALS; QUESTIONS NOT RAISED IN
LOWER COURTS. — The question of whether or not the appellant's claims are barred by
the statute of non-claims cannot be passed upon on appeal where this question was
never raised in any of the courts below.

DECISION

LABRADOR , J : p

This is an appeal by way of certiorari against a decision of the Court of Appeals,

fourth division, approving certain claims presented by Epifanio M. Longara against the
intestate estate of Fernando Hermosa, Sr. The claims are of three kinds, namely,
P2,341.41 representing credit advances made to the intestate from 1932 to 1944,
P12,924.12 made to his son Francisco Hermosa, and P3,772 made to his grandson,
Fernando Hermosa, Jr. from 1945 to 1947, after the death of the intestate, which
occurred in December, 1944. The claimant presented evidence and the Court of
Appeals found, in accordance therewith, that the intestate had asked for the said credit
advances for himself and for the members of his family "on condition that their
payment should be made by Fernando Hermosa, Sr. as soon as he receive funds
derived from the sale of his property in Spain." Claimant had testi ed without
opposition that the credit advances were to be "payable as soon as Fernando Hermosa,
Sr.'s property in Spain was sold and he received money derived from the sale." The
Court of Appeals held that payment of the advances did not become due until the
administratrix received the sum of P20,000 from the buyer of the property. Upon
authorization of the probate court in October, 1947, the administratrix sold the property
in November, 1947, and the same was paid for subsequently. The claim was led on
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 October 2, 1948.
It is contended on this appeal that the obligation contracted by the intestate was
subject to a condition exclusively dependent upon the will of the debtor (a condicion
potestativa) and therefore null and void, in accordance with article 1115 of the old Civil
Code. The case of Osmeña vs. Rama, (14 Phil. 99) is cited to support appellants
contention. In this case, this court seems to have led that a promise to pay an
indebtedness "if a house of strong materials is sold" is an obligation the performance
of which depended on the will of the debtor. We have examined this case and we nd
that the supposed ruling was merely an assumption and the same was not the actual
ruling of the case.
A careful consideration of the condition upon which the payment of the sums
advanced was made to depend, i.e., "as soon as he (intestate) receive funds derived
from the sale of his property in Spain," discloses the fact that the condition in question
does not depend exclusively upon the will of the debtor, but also upon other
circumstances beyond his power or control. If the condition were "if he decides to sell
his house," or "if he likes to pay the sums advanced," or any other condition of similar
important implying that upon him (the debtor) alone payment would depend, the
condition would be potestativa, dependent exclusively upon his will or discretion. In the
form that the condition was found by the Court of Appeals, however, the condition
implies that the intestate had already decided to sell his house, or at least that he had
made his creditors believe that he had done so, and that all that was needed to make
his obligation (to pay his indebtedness) demandable is that the sale be consummated
and the price thereof remitted to the islands. Note that if the intestate would prevent or
would have prevented the consummation of the sale voluntarily, the condition would be
or would have been deemed or considered complied with (article 1119, old Civil Code).
The will to sell on the part of the intestate was, therefore, present in fact, or presumed
legally to exist, although the price and other conditions thereof were still within his
discretion and nal approval. But in addition to this acceptability of the price and other
conditions of the sale to him (the intestate-vendor), there were still other conditions
that had to concur to effect the sale, mainly that of the presence of a buyer, ready, able
and willing to purchase the property under the conditions demanded by the intestate.
Without such a buyer the sale could not be carried out or the proceeds thereof sent to
the islands. It is evident, therefore, that the condition of the obligation was not a purely
potestative one, depending exclusively upon the will of the intestate, but a mixed one,
depending partly upon the will of the intestate and partly upon chance, i.e., the presence
of a buyer of the property for the price and under the conditions desired by the
intestate. The obligation is clearly governed by the second sentence of article 1115 of
the old Civil Code (8 Manresa, 126). The condition is, besides, a suspensive condition,
upon the happening of which the obligation to pay is made dependent. And upon the
happening of the condition, the debt became immediately due and demandable. (Article
1114, old Civil Code; 8 Manresa, 119.)
One other point needs to be considered, and this is the fact that the sale was not
effected in the lifetime of the debtor (the intestate), but after his death and by his
administrator, the very wife of the claimant. On this last circumstance we must bear in
mind that the Court of Appeals found no evidence to show that the claim was the
product of a collusion or connivance between the administratrix and the claimant. That
there was really a promise made by the intestate to pay for the credit advances may be
implied from the fact that the receipts thereof had been preserved. Had the advances
been made without intention of demanding their payment later, said receipts would not
have been preserved. Regularity of the advances and the close relationship between the
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 intestate and the claimant also support this conclusion.

As to the fact that the suspensive condition took place after the death of the
debtor, and that advances were made more than ten years before the sale, we are
supported in our conclusion that the same is immaterial by Sanchez Roman, who says,
among other things, as to conditional obligations:
1.a La obligacion contractual afectada por condicion suspensiva, no
es exigible hasta que se cumpla la condicion, . . .
2.a El cumplimiento de la condicion suspensiva retrotrae los efectos
del acto juridico originario de la obligacion a que aquella afecta, al tiempo de la
celebracion de este; . . .
3.a La referida retroaccion, no solo tiene lugar cuando el cumplimiento
de la condicion se verifica en vida de los contrayentes, si que tambien se produce
cuando aquel se realiza despues de la muerte de estos. (4 Sanchez Roman, p.
122) (Emphasis supplied.)
As the obligation retroacts to the date when the contract was entered into, all amounts
advanced from the time of the agreement became due, upon the happening of the
suspensive condition. As the obligation to pay became due and demandable only when
the house was sold and the proceeds received in the islands, the action to recover the
same only accrued, within the meaning of the statute of limitations, on the date the
money became available here, hence the action to recover the advances has not yet
prescribed.
The above considerations dispose of the most important question raised on this
appeal. It is also contended that the third group of claims, i.e., credits furnished the
intestate's grandson after his (intestate's) death in 1944, should not have been allowed.
We nd merit in this contention. Even if authorization to furnish necessaries to his
grandson may have been given, this authorization could not be made to extend after his
death, for two obvious reasons. First because the obligation to furnish support is
personal and is extinguished upon the death of the person obliged to give support
(article 150, old Civil Code), and second because upon the death of a principal (the
intestate in this case), his agent's authority or authorization is deemed terminated
(article 1732, old Civil Code). That part of the decision allowing this group of claims,
amounting to P3,772, should be reversed.
One last contention of the appellant is that the claims are barred by the stature of
non-claims. It does not appear from the record that this question was ever raised in any
of the courts below. We are, therefore, without authority under our rules to consider this
issue at this stage of the proceedings.
The judgment appealed from is hereby a rmed in so far as it approves the
claims of appellee in the amounts of P2,341 and P12,942.12, and reversed as to that of
P3,772. Without costs.
Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo, JJ.,
concur.

Separate Opinions
PARAS, C.J., concurring and dissenting :

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 I concur in the majority decision insofar as it reverses the appealed judgment
allowing the claim for P3,772, but dissent therefrom insofar as it a rms the appealed
judgment approving appellee's claims.
The principal question is whether the stipulation to pay the advances "on
condition that their payment should be made by Fernando Hermosa, Sr. as soon as he
receives funds derived from the sale of his property in Spain", and making said
advances "payable as soon as Fernando Hermosa, Sr.'s property in Spain was sold and
he received money derived from the sale," is a condicion potestativa and therefore null
and void in accordance with article 1115 of the old Civil Code. My answer is in the
a rmative, because it is very obvious that the matter of the sale of the house rested on
the sole will of the debtor, unaffected by any outside consideration or in uence. The
majority admit that if the condition were "if he decides to sell his house" or "if he likes to
pay the sums advanced," the same would be potestative. I think a mere play of words is
invoked, as I cannot see any substantial difference. Under the condition imposed by
Fernando Hermosa, Sr., it is immaterial whether or not he had already decided to sell his
house, since there is no pretence that acceptable conditions of the sale had been made
the subject of an agreement, such that if such conditions presented themselves the
debtor would be bound to proceed with the sale. In the case at bar, the terms are still
subject to the sole judgment —if not whims and caprise — of Fernando Hermosa, Sr. In
fact no sale was affected during his lifetime. As the condition above referred to is null
and void, the debt resulting from the advances made to Fernando Hermosa, Sr. became
either immediately demandable or payable within a term to be xed by the court. In
both cases the action has prescribed after the lapse of ten years. In the case of
Gonzales vs. De Jose (66 Phil., 369, 371), this court already held as follows:
"We hold that the two promissory notes are governed by article 1128
because under the terms thereof the plaintiff intended to grant the defendant a
period within which to pay his debts. As the promissory notes do not x this
period, it is for the court to x the same. (Citing cases.) The action to ask the
court to x the period has already prescribed in accordance with section 43 (1) of
the Code of Civil Procedure. This period of prescription is ten years, which has
already elapsed from the execution of the promissory notes until the ling of the
action on June 1, 1934. The action which should be brought in accordance with
article 1128 is different from the action for the recovery of the amount of the
notes, although the effects of both are the same, being, like other civil actions,
subject to the rules of prescription."
The majority also contend that the condition in question depended on other
factors than the sole will of the debtor, and cite the presence of a buyer, ready, able and
willing to purchase the property. This is of no moment, because, as already stated, in
the absence of any contract setting forth the minimum or maximum terms which would
be acceptable to the debtor, nobody could legally compel Fernando Hermosa, Sr. to
make any sale.

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