In the causes of action which survive, the wrong complained [of] affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive, the injury complained of is to the person, the property and rights of property affected being incidental.

"Xxx.

The Petition for Annulment of Sale, Reconveyance and Damages survived the death of petitioner

The criterion for determining whether an action survives the death of a petitioner was elucidated in Bonilla v. Barcena,7 to wit:

The question as to whether an action survives or not depends on the nature of the action and the damage sued for. In the causes of action which survive, the wrong complained [of] affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive, the injury complained of is to the person, the property and rights of property affected being incidental.8

If the case affects primarily and principally property and property rights, then it survives the death of the plaintiff or petitioner. In Sumaljag v. Literato,9 we held that a Petition for Declaration of Nullity of Deed of Sale of Real Property is one relating to property and property rights, and therefore, survives the death of the petitioner. Accordingly, the instant case for annulment of sale of real property merits survival despite the death of petitioner Memoracion Z. Cruz.

The CA erred in affirming RTC’s dismissal of the
Petition for Annulment of Deed of Sale,
Reconveyance and Damages

When a party dies during the pendency of a case, Section 16, Rule 3 of the 1997 Revised Rules of Civil Procedure necessarily applies, viz:

Sec. 16. Death of party; duty of counsel. - Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.

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 a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice.

If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs.

The foregoing section is a revision of Section 17, Rule 3 of the old Rules of Court:

SEC. 17. Death of 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 to 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.

If the action survives despite death of a party, it is the duty of the deceased’s counsel to inform the court of such death, and to give the names and addresses of the deceased’s legal representatives. The deceased may be substituted by his heirs in the pending action. As explained in Bonilla:

x x x Article 777 of the Civil Code provides "that the rights to the succession are transmitted from the moment of the death of the decedent." From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. When [plaintiff], therefore, died[,] her claim or right to the parcels of land x x x was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution as parties in interest for the deceased plaintiff.10

If no legal representative is named by the counsel of the deceased, or the legal representative fails to appear within a specified period, it is the duty of the court where the case is pending to order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. The reason for this rule is to protect all concerned who may be affected by the intervening death, particularly the deceased and his estate.111avvphi1

In the instant case, petitioner (plaintiff) Memoracion Z. Cruz died on 30 October 1996. Her counsel, Atty. Roberto T. Neri, notified the trial court of such death on 13 January 1997, through a Manifestation stating thus:

COMES NOW the undersigned counsel and to this Honorable Court respectfully gives notice that the plaintiff, Memoracion Z. Cruz, died on October 30, 1996, in Manila as shown by a Certificate of Death, a certified true copy of which is hereto attached as Annex "A" hereof.

The legal representative of the deceased plaintiff is her son EDGARDO CRUZ whose address is at No. 3231-E Tabora St., Bo. Obrero, Tondo, Manila.

x x x x12

On 24 January 1997, respondent (defendant) Oswaldo Z. Cruz moved to dismiss the case alleging that it did not survive Memoracion’s death. The RTC granted the motion to dismiss in the assailed Order dated 2 June 1997.

We rule that it was error for the RTC to dismiss the case. As mentioned earlier, the petition for annulment of deed of sale involves property and property rights, and hence, survives the death of petitioner Memoracion. The RTC was informed, albeit belatedly,13 of the death of Memoracion, and was supplied with the name and address of her legal representative, Edgardo Cruz. What the RTC could have done was to require Edgardo Cruz to appear in court and substitute Memoracion as party to the pending case, pursuant to Section 16, Rule 3 of the 1997 Revised Rules of Civil Procedure, and established jurisprudence.

We note that on 17 October 1997, Edgardo Cruz filed with the RTC a Manifestation, stating that he is retaining the services of Atty. Roberto T. Neri. We quote:14

UNDERSIGNED HEIR of the late Memoracion Z. Cruz respectfully manifests that he is retaining the services of ATTY. ROBERTO T. NERI as counsel for the plaintiff.

(Sgd.) EDGARDO Z. CRUZ
Plaintiff

Consistent with our ruling in Heirs of Haberer v. Court of Appeals,15 we consider such Manifestation, signed by Memoracion’s heir, Edgardo Cruz, and retaining Atty. Neri’s services as counsel, a formal substitution of deceased Memoracion by her heir, Edgardo Cruz. It also needs mention that Oswaldo Cruz, although also an heir of Memoracion, should be excluded as a legal representative in the case for being an adverse party therein.16

Xxx."

MEMORACION Z. CRUZ, represented by EDGARDO Z. CRUZ, Petitioner, vs. OSWALDO Z. CRUZ, Respondent. G.R. No. 173292, September 1, 2010.