RULE 92-97

[G. R. No. 147148. January 13, 2003]

PILAR Y. GOYENA, petitioner, vs. AMPARO LEDESMA-GUSTILO, respondent.

D E C I S I O NCARPIO-MORALES, J.:

From the Court of Appeals June 19, 2000 Decision which affirmed that of the Regional Trial Court (RTC) of Makati, Branch 149 in Special Proceeding No. N-4375 appointing herein respondent Amparo Ledesma Gustilo as guardian over the person and property of her sister Julieta Ledesma, Pilar Y. Goyena, Julietas close friend and companion of more than 60 years, comes to this Court on petition for review on certiorari.

On July 8, 1996, respondent filed at the RTC of Makati a PETITION FOR LETTERS OF GUARDIANSHIP[1] over the person and properties of her sister Julieta, the pertinent allegations of which read:

2. That for the most part during the year 1995 and 1996, Julieta Ledesma has been a patient in the Makati Medical Center where she is under medical attention for old age, general debility, and a mini-stroke which she suffered in the United States in early 1995;

3. That Julieta Ledesma is confined to her bed and can not get up from bed without outside assistance, and she has to be moved by wheel chair;

4. That Julieta Ledesma owns real estate and personal properties in Metro Manila and in Western Visayas, with an aggregate estimated assessed and par value of P1 Million Pesos[;]

5. That Julieta Ledesma is not in a position to care for herself, and that she needs the assistance of a guardian to manage her interests in on-going corporate and agricultural enterprises;

6. That the nearest of kin of Julieta Ledesma are her sisters of the full blood, namely, petitioner Amparo Ledesma Gustilo, Teresa Ledesma (aka. Sister Cristina of the

Religious of the Assumption, and Loreto Ledesma Mapa, all of whom have given their consent to the filing of this petition as shown by their signatures at the bottom of this petition[;]

7. That petitioner has extensive experience in business management of commercial, agricultural and corporate enterprises, many of which are in the same entities where Julieta Ledesma holds an interest, and that she is in a position to monitor and supervise the delivery of vitally needed medical services to Julieta Ledesma whether in the Metro Manila area, or elsewhere.

Petitioner filed an Opposition to the petition for letters of guardianship. She later filed an Amended Opposition on August 15, 1996 reading in part:

2.03 The petition lacked factual and legal basis in that Julieta Ledesma is competent and sane and there is absolutely no need to appoint a guardian to take charge of her person/property. She is very able to take charge of her affairs, and this is clearly evident from her letters to the petitioner. Copies of her recent letters are herewith attached as Annexes A to E.

x x x

2.05 Petitioner is not fit to be appointed as the guardian of Julieta Ledesma since their interests are antagonistic (Sudler v. Sudler, 121 Md. 46. 49 L.R.A. 800, as cited in vol. V-B Francisco Revised Rules of Court, Rule 93, Section 4, p. 414).

x x x

3.01 The above captioned petition should be dismissed for utter lack of legal and/or factual basis.

3.02 In the remote event that this Honorable Court should find that Julieta Ledesma is incompetent and resolve that there is need to appoint a guardian over her person and property, this Honorable Court should appoint as such guardian:

1. Oppositor Goyena;

2. Bart Lacson;

3. Fely Montelibano;

4. Jose T. Revilla; or

5. a qualified and reputable person as may be determined fit by this Honorable Court.

By Decision[2] of October 4, 1996, the trial court found Julieta incompetent and incapable of taking care of herself and her property and appointed respondent as guardian of her person and properties, ratiocinating as follows:

A perusal of the records shows that petitioner (Amparo) is 72 years of age, the youngest sister of Julieta. Admittedly, the Oppositor Pilar Goyena, 90 years of age has been the close friend and companion of Julieta for 61 years. Julieta was with Oppositor when she suffered her first stroke in Makati in 1991 which was the reason why Julieta had to give up the management of their hacienda in Bacolod. It is also not disputed that Julieta was with Pilar when she had her second stroke in the U.S. In short, the special bond of friendship existing between Julieta and the Oppositor cannot be denied. Now that Julieta is unable to manage her personal life and business concerns due to senility and vascular dementia, the oppositor wants to be appointed her guardian or else Bart Lacson, Fely Montelibano and Jose T. Revilla.

It is interesting to note that the oppositor has interposed her objection to the appointment of Amparo as guardian because she thinks that the latter dislikes her. She further added that there were a number of letters allegedly written by Julieta to Amparo which showed Julietas sentiments regarding certain matters. Nevertheless, not one of the nearest of kin of Julieta opposed the petition. As a matter of fact, her sisters signified their conformity thereto. Thus, Ms. Goyenas mere conjecture that Amparo dislikes her is no sufficient reason why the petition should be denied. Neither does it make Amparo unsuitable and unfit to perform the duties of a guardian. On the contrary, it is Ms. Goyena who could be considered as to have an adverse interest to that of Julieta if it is true that 50% of Julietas holdings at the Makati Medical Center has been transferred to her as alleged in Exhibit 1 and Exhibit A.

By and large, the qualification of Amparo to act as guardian over the person and properties of Julieta has been duly established. As a sister, she can best take care of Julietas concerns and well being. Now that Julieta is in the twilight of her life, her family should be given the opportunity to show their love and affection for her without however denying Pilar Goyena access to her considering the special bond of friendship between the two. Needless to say, the oppositor at 90 years of age could not be said to be physically fit to attend to all the needs of Julieta.

WHEREFORE, petitioner Amparo Gustilo, is hereby appointed guardian over the person and property of Julieta Ledesma, an incompetent with all the powers and duties specified under the law.

Accordingly, let letters of guardianship issue to petitioner upon her filing of a bond in the amount of P200,000.00 to guarantee the performance of the obligations prescribed for general guardians.

SO ORDERED. (Emphasis supplied)

Petitioners Motion for Reconsideration of the trial courts decision was, by Order of November 4, 1996[3], denied in this wise:

Acting on the Motion for Reconsideration filed by the Oppositor thru counsel, and finding no merits on the ground stated therein, considering that petitioner appears to be most qualified and suitable to act as Julieta Ledesmas guardian after taking into consideration the qualifications of the oppositor and her other recomendees [sic], aside from the fact that petitioners appointment as such was not objected to by any of her nearest kin, in contrast to the hostile interest of oppositor, the same is hereby DENIED.

SO ORDERED.

On appeal of petitioner, the Court of Appeals affirmed the trial courts decision on the following ratiocination:[4]

Indeed, oppositor-appellant (Pilar) has not shown the authenticity and due execution of the letters which purport to show the existence of a rift between Julieta and her family and dissatisfaction as to how the businesses were managed. At any rate, while it is correct to say that no person should be appointed guardian if his interest conflict with those of the ward (Guerrero vs. Teran, 13 Phil. 212), there are really no antagonistic interests to speak of between petitioner [Amparo] and Julieta, they being co-owners of certain properties. There is also no showing that petitioners business decisions in the past had resulted in the prejudice of Julieta.

While the oppositor may have been very close to Julieta, there is no sufficient showing that petitioner is hostile to the best interests of the latter. On the contrary, it was the petitioner who, realizing the need for the appointment of a person to guard her sisters interests, initiated the petition for guardianship. We see no indication that petitioner is animated by a desire to prejudice Julietas health as well as financial interests. In point of fact, it was oppositor-appellant who had initially concealed the deteriorating state of mind of Julieta from the court. Oppositors advanced age of 90 years also militate against her assuming the guardianship of the incompetent. The oppositor has declared that she is not interested to be appointed legal guardian (p.21[,] Appellants Brief, Rollo, p. 59). But the persons that she points to as being better choices as Julietas guardian over the appellee have not acted,

nor even indicated, their desire to act as such. In any case, We see no cogent reason why We should reverse the well-reasoned disquisition of the trial court.

WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED.

SO ORDERED. (Emphasis supplied)

Petitioners Motion for Reconsideration of the Court of Appeals decision having been denied, she filed the present petition which proffers that:

THE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW AND APPLICABLE DECISIONS OF THIS HONORABLE COURT.

THE COURT OF APPEALS HAS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS IN AFFIRMING THE TRIAL COURTS DECISION DATED OCTOBER 4, 1996 AND IN ISSUING THE RESOLUTIONS DATED JUNE 29, 2000 AND FEBRUARY 9, 2001.

The petition fails.

It is well-entrenched doctrine that questions of fact are not proper subjects of appeal by certiorari under Rule 45 of the Rules of Court as this mode of appeal is confined to questions of law.[5] The test of whether the question is one of law or of fact is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case it is a question of law; otherwise, it is question of fact.[6]

In the case at bar, the only issue before this Court is whether or not the appellate court and the trial court erred in finding that respondent is not unsuitable for appointment as guardian of the person and properties of Julieta. In support of an affirmative answer, petitioner posits as follows:

1. The Court of Appeals basis for its decision that there are no antagonistic interests between [her] and [respondent] is contrary to the evidence on record,[7]

2. The Court of Appeals erred in holding that there is no showing that [respondent] is hostile to the best interest of Julieta,[8] and

3. Julieta Ledesmas appointed representatives are most suitable to be appointed as her guardian.[9]

Clearly, the issues raised and arguments in support of petitioners position require a review of the evidence, hence, not proper for consideration in the petition at bar. This Court cannot thus be tasked to go over the proofs

presented by the parties and analyze, assess, and weigh them to ascertain if the trial court and appellate court were correct in according them superior credit.[10]

That the issues raised are factual is in fact admitted by petitioner in her Reply dated August 30, 2001:[11]

Although the general rule is that this Honorable Court is not a trier of facts, its jurisdiction being limited to reviewing and revising only errors of law, it is nonetheless subject to the following exceptions which have been laid down in a number of decisions of this Honorable Court:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures; (2) When the inference made is manifestly mistaken, absurd or impossible; (3) When there is grave abuse of discretion; (4) When the judgment is based on a misapprehension of facts; (5) When the findings of facts are conflicting; (6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellants and appellee; (7) When the findings of the Court of Appeals are contrary to those of the trial court; (8) When the findings of facts are conclusions without citation of specific evidence on which they are based; (9) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; and (10) When the findings of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence on record (Emphasis supplied); (Rollo, 350-351)

Petitioner claims that there is no doubt that the instant petition falls within the above-stated exceptions because the findings of the Court of Appeals are clearly belied by the evidence on record.[12]

In the selection of a guardian, a large discretion must be allowed the judge who deals directly with the parties.[13] As this Court said:

As a rule, when it appears that the judge has exercised care and diligence in selecting the guardian, and has given due consideration to the reasons for and against his action which are urged by the interested parties, his action should not be disturbed unless it is made very clear that he has fallen into grievous error.[14]

In the case at bar, petitioner has not shown that the lower courts committed any error.

Petitioner cannot rely on Garchitorena v. Sotelo[15] with respect to the existence of antagonistic interests between respondent and Julieta. In that

case, the interest of Perfecto Gabriel as creditor and mortgagee of the minor-wards properties (a house and lot) is antagonistic to the interest of the wards as mortgagors, hence, Gabriels appointment as guardian was erroneous.For while he sought to foreclose the wards properties as creditor and mortgagee on one hand, he had to, on the other hand, endeavor to retain them for the wards as their guardian. Added to that was Gabriels appointment as guardian without him informing the guardianship court that he held a mortgage on the properties. Furthermore, he deliberately misinformed the said court that the first mortgagee was the Santa Clara Monastery when it was him. None of the said circumstances obtain in the present case.

Petitioner can neither rely on certain letters of Julieta to establish her claim that there existed[16] a rift between the two which amounts to antagonistic interests. The first letter[17] sent by Julieta to respondent which reads:

x x x So if you (appellee) do not agree with me (Julieta) my decision is right to let us divide as soon as possible, so we will have capital each of us to work, and keep the Hda, for [sic] generation to generation.

x x x

For the last time I will repeat even if I have to kneel before you and Carlos I have no interest anymore in any future investment due to my age and being single and alone in life. I would like to be able to enjoy whatever monies that correspond to me. I would like to have enough money as a reserve for any future need that I might have like hospitalization, travel, buying whatever I like, etc. etc. (Letter to appellee; Exhibit 2)

merely shows Julietas lack of interest in future investments, not necessarily a business disagreement, and certainly not per se amounting to antagonistic interests between her and respondent to render the latter unsuitable for appointment as guardian.

The second letter[18] which reads:

My mind is still clear to tell you about Fortuna when I had my stroke I was confined in MMC for one month. If I am not mistaken you did not visit me. One day Carlos came to visit me and asked me this question. Do you think you will be able to continue managing the Hda? I answered him I dont know it all depends on my sickness. Carlos said who do you want to take your place? I said I want Cheling Zabaljauregui. Then Carlos said O.K. He asked Pilar can you contact Cheling? Tell him to call me or see me. The nephew of Cheling was a resident in MMC through him Pilar was able to contact Cheling and gave him Carlos message. So I thought all the time it was agreeable. I left for USA for treatment. To my surprise when I came

back from USA it was not Cheling, but you (appellee) took over the management as you requested. Carlos did not tell me but decided in your favor. x x x (Letter to appellee; Exhibit 3; emphasis supplied)

shows that: 1) respondent did not visit Julieta when she was confined at the Makati Medical Center on account of her stroke, 2) there was disagreement as to who should run the hacienda, with Julieta favoring a certain Cheling Zabaljaurigue, and 3) respondent took over management of the hacienda with their brother Carlos (Ledesma) supporting her. No inference as to the existence of antagonistic interests between respondent and Julieta can thus be made.

The third letter[19] which reads:

x x x Carlos went to the house before I left and asked from me twenty thousand (20,000) shares of San Carlos Milling which you gave because I wanted to sell all.xxx If he does not sell or cannot sell, just arrange to send them back to me. Amparing since I came here to America and Vancouver my requests have been ignored. Everyone is suspecting that Pilar is the one ordering or commanding me that is not true. What I asked from Julio is just to report to me or send me reports so I can follow up from here. But up to now he has ignored my requests x x x. (Letter to appellee Exhibit 4)

has no relevance to the issue of whether or not the lower courts erred in finding that respondent is not unsuitable for appointment as guardian. The letter in fact discloses, that it was Julietas nephew Julio Ledesma, and not respondent, who ignored the request.

As for the fourth letter[20] which reads:

I want all of you to know that whatever decision now and in the future I want to do nobody can stop me especially regarding my properties, money, etc. I will be the only one to dispose of it because it is mine. You said to Raul you are going to court, you are most welcome x x x. (Letter to Connie, Exhibit 5)

it has also no relevance to the issue in the case at bar. The letter is not even addressed to respondent but to a certain Connie (a sister-in-law of Julieta).

Petitioners assertion that respondents intent in instituting the guardianship proceedings is to take control of Julietas properties and use them for her own benefit[21] is purely speculative and finds no support form the records.

The claim that respondent is hostile to the best interests of Julieta also lacks merit. That respondent removed Julieta from the Makati Medical Center where she was confined after she suffered a stroke does not necessarily show her hostility towards Julieta, given the observation by the trial court, cited in the present petition, that Julieta was still placed under the care of doctors[22] after she checked out and was returned to the hospital when she suffered another stroke.

Finally, this Court notes two undisputed facts in the case at bar, to wit: 1) Petitioner opposed the petition for the appointment of respondent as guardian before the trial court because, among other reasons, she felt she was disliked by respondent,[23] a ground which does not render respondent unsuitable for appointment as guardian, and 2) Petitioner concealed the deteriorating state of mind of Julieta before the trial court,[24] which is reflective of a lack of good faith.

Discussion of the third argument is unnecessary, the suitability of Amparo for appointment as guardian not having been successfully contested.

ACCORDINGLY, for lack of merit, the petition is hereby DISMISSED.

SO ORDERED.

[G.R. No. 110427. February 24, 1997]

The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA ESTRADA, respondents.

D E C I S I O NNARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a spinster, a retired pharmacist, and former professor of the College of Chemistry and Pharmacy of the University of the Philippines, was declared incompetent by judgment[1] of the Regional Trial Court of Quezon City, Branch 107,[2] in a guardianship proceeding instituted by her niece, Amparo A. Evangelista.[3] She was so adjudged because of her advanced age and physical infirmities which included cataracts in both eyes and senile dementia.

Amparo A. Evangelista was appointed legal guardian of her person and estate.

Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said premises.[4] The complaint was later amended to identify the incompetent Caiza as plaintiff, suing through her legal guardian, Amparo Evangelista.

The amended Complaint[5] pertinently alleged that plaintiff Caiza was the absolute owner of the property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Caiza already had urgent need of the house on account of her advanced age and failing health, "so funds could be raised to meet her expenses for support, maintenance and medical treatment;" that through her guardian, Caiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully depriving plaintiff of the possession of the house in question, they ** (were) enriching themselves at the expense of the incompetent, because, while they ** (were) saving money by not paying any rent for the house, the incompetent ** (was) losing much money as her house could not be rented by others." Also alleged was that the complaint was "filed within one (1) year from the date of first letter of demand dated February 3, 1990."

In their Answer with Counterclaim, the defendants declared that they had been living in Caiza's house since the 1960's; that in consideration of their faithful service they had been considered by Caiza as her own family, and the latter had in fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question.

Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor,[6] the Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of attorney's fees.

But on appeal,[7] the decision was reversed by the Quezon City Regional Trial Court, Branch 96.[8] By judgment rendered on October 21, 1992,[9] the RTC held that the "action by which the issue of defendants' possession should be resolved is accion publiciana, the obtaining factual and legal situation ** demanding adjudication by such plenary action for recovery of possession cognizable in the first instance by the Regional Trial Court."

Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision [10] promulgated on June 2, 1993, the Appellate Court[11]affirmed the RTC's judgment in toto. It ruled that (a) the proper remedy for Caiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject premises as mere tenants or occupants by tolerance, they have been there as a sort of adopted family of Carmen Caiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while "said will, unless and until it has passed probate by the proper court, could not be the basis of defendants' claim to the property, ** it is indicative of intent and desire on the part of Carmen Caiza that defendants are to remain and are to continue in their occupancy and possession, so much so that Caiza's supervening incompetency can not be said to have vested in her guardian the right or authority to drive the defendants out."[12]

Through her guardian, Caiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the main that the latter erred in (a) holding that she should have pursued an accion publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this case."[13]

In the responsive pleading filed by them on this Court's requirement, [14] the Estradas insist that the case against them was really not one of unlawful detainer; they argue that since possession of the house had not been obtained by them by any "contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere demand (and hence never became unlawful) within the context of the law." Neither could the suit against them be deemed one of forcible entry, they add, because they had been occupying the property with the prior consent of the "real owner," Carmen Caiza, which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Caiza is admitted to probate." They conclude, on those postulates, that it is beyond the power of Caiza's legal guardian to oust them from the disputed premises.

Carmen Caiza died on March 19, 1994,[15] and her heirs -- the aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew, respectively -- were by this Court's leave, substituted for her.[16]

Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for recovery of possession of the property in dispute; (b) assuming desahucioto be proper, whether or not Evangelista, as

Caiza's legal guardian had authority to bring said action; and (c) assuming an affirmative answer to both questions, whether or not Evangelista may continue to represent Caiza after the latter's death.

I

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and the character of the relief sought.[17] An inquiry into the averments of the amended complaint in the Court of origin is thus in order.[18]

The amended Complaint alleges:[19]

"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this complaint;

** ** **

9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff, Carmen Caiza, for free, out of her kindness;

10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the two (2) letters of demand were ignored and the defendants refused to vacate the same. **

11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was negative and no settlement was reached. A photocopy of the Certification to File Action dated July 4, 1990; issued by said Barangay Captain is attached, marked Annex "D" and made an integral part hereof;

12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate the premises, and they are up to this time residing in the said place;

13. That this complaint is filed within one (1) year from the date of first letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian -- Amparo Evangelista;

14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they are enriching themselves at the expense of the incompetent plaintiff, because, while they are saving money by not paying any rent

for the house, the plaintiff is losing much money as her house could not be rented by others;

15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for her support, maintenance and medical treatment;

16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to spendP10,000.00 as attorney's fees."

Its prayer[20] is quoted below:

"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Caiza, represented by her legal guardian. Amparo Evangelista, respectfully prays to this Honorable Court, to render judgment in favor of plaintiff and against the defendants as follows:

1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the house and premises at No. 61 Scout Tobias, Quezon City, so that its possession can be restored to the plaintiff, Carmen Caiza: and

2. To pay attorney's fees in the amount of P10,000.00;

3. To pay the costs of the suit."

In essence, the amended complaint states:

1) that the Estradas were occupying Caiza's house by tolerance -- having been "allowed to live temporarily ** (therein) for free, out of ** (Caiza's) kindness;"

2) that Caiza needed the house "urgently" because her "health ** (was) failing and she ** (needed) funds ** to meet her expenses for her support, maintenance and medical treatment;"

3) that through her general guardian, Caiza requested the Estradas several times, orally and in writing, to give back possession of the house;

4) that the Estradas refused and continue to refuse to give back the house to Caiza, to her continuing prejudice; and

5) that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient,[21] and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law.[22]

The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend that since they did not acquire possession of the property in question "by virtue of any contract, express or implied" -- they having been, to repeat, "allowed to live temporarily ** (therein) for free, out of ** (Caiza's) kindness" -- in no sense could there be an "expiration or termination of ** (their) right to hold possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie against them, since there is no claim that they had "deprived (Caiza) of the possession of ** (her property) by force, intimidation, threat, strategy, or stealth."

The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her house, rent-free, did not create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the most rudimentary sense of fairness clearly require that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning the house to Caiza upon her demand. More than once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. [23] The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate.[24] In other words, one whose stay is merely tolerated becomes a deforciant illegally occupying the land or property the moment he is required to leave.[25] Thus, in Asset Privatization Trust vs. Court of Appeals,[26] where a company, having lawfully obtained possession of a plant upon its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand

and its repudiation, ** (its) continuing possession ** became illegal and the complaint for unlawful detainer filed by the ** (plant's owner) was its proper remedy."

It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand,[27] the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises.[28] Now, the complaint filed by Caiza's guardian alleges that the same was "filed within one (1) year from the date of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in fact a second letter of demand to vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint was actually filed on September 17, 1990, well within one year from the second (last) written demand to vacate.

The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made through her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Caiza had executed a will bequeathing the disputed property to the Estradas; that circumstance did not give them the right to stay in the premises after demand to vacate on the theory that they might in future become owners thereof, that right of ownership being at best inchoate, no transfer of ownership being possible unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by sufferance, that had been legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the property had allegedly been bequeathed to them -- an event which still has to take place; in other words; prior to the probate of the will, any assertion of possession by them would be premature and inefficacious.

In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that the proper remedy for Caiza is not ejectment but accion publiciana, a plenary

action in the RTC or an action that is one for recovery of the right to possession de jure.

II

The Estradas insist that the devise of the house to them by Caiza clearly denotes her intention that they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster would be inconsistent with the ward's will.

A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked;[29] and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, id.). [30]An owner's intention to confer title in the future to persons possessing property by his tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income from the house on account of the physical infirmities afflicting her, arising from her extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Caiza. Her Letters of Guardianship[31] dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent CARMEN CAIZA with full authority to take possession of the property of said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the management of her properties ** " [32] By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. [33] It also became her right and duty to get possession of, and exercise control over, Caiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during her incompetency. [34] That right to manage the ward's estate carries with it the right to take possession thereof and recover it from anyone who retains it,[35] and bring and defend such actions as may be needful for this purpose. [36]

Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:

"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such maintenance."

Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as the law now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve. "the issue of ownership ** only to determine the issue of possession."[37]

III

As already stated, Carmen Caiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing that Caiza's death automatically terminated the guardianship, Amaparo Evangelista lost all authority as her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit.

While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward,[38] the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this Court[39] of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.:[40]

"SEC. 18. Death of a party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be substituted for the deceased within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be

allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs.

To be sure, an ejectment case survives the death of a party. Caiza's demise did not extinguish the desahucio suit instituted by her through her guardian.[41] That action, not being a purely personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 -- affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents.

SO ORDERED.