EGIDIO JOAQUIM FERNANDES Vs. MELASQUINA COLACO

JUDGEMENT

(1.) A common ancestor dies, leaving behind two branches of successors--one through his first wife and the other through second wife. His death opens succession. The first batch takes out inventory proceedings. About a couple of immovable properties, the second branch pleads exclusive possession, both under ouster and a mortgage with possession. First, the Inventory Court declares the properties as litigious but decides on their apportionment. The second branch sues for a declaration that those items of properties belong to it; the first branch sues for recovery of possession. Both before the Trial Court and before the First Appellate Court, the second branch loses. So these second appeals.

(2.) One Avelino Fernandes was the family's common ancestor. During his lifetime, he married Santana and had three children: one son and two daughters. When his first wife, Santana, died, he married Escolastica Caeiro. Through her, he had one son and one daughter. Avelino Fernandes died in 1945; his first wife in 1911; and second wife in 1965. Indeed, the children of the Second Branch as well as those of the First Branch, later, married and had their own children.

(3.) Soon after the death of Avelino and his two wives, the two branches, that is the children of Avelino Fernandes wanted the properties partitioned. In 1967, the First Branch initiated Inventory Proceedings No. 21045/1967. Initially, it did not show the suit property (three items of immovable property) in the inventory. But later, in 1972, through a supplementary list the First Branch made these properties a part of the inventory. Then, the Second Branch, the appellants, objected to it. According to them, the property, as the appellants' counsel puts it, lies beyond the common ancestors' inheritance.