This is a Petition for Review on Certiorari of the Decision of the Court of Appeals, dated October 17, 1996, in CA-G.R. CV No. 41283, which reversed the decision, dated June 10, 1992, of the Regional Trial Court, Branch 67, Pasig City, in Civil Case No. 59705.

The facts of the case are, as follows:

On March 23, 1987, Evarista M. dela Merced died intestate, without issue. She left five (5) parcels of land situated in Orambo, Pasig City.

At the time of her death, Evarista was survived by three sets of heirs, viz: (1) Francisco M. dela Merced, her legitimate brother ; (2) Teresita P. Rupisan, her niece who is the only daughter of Rosa de la Merced-Platon (a sister who died in 1943) ; and (3) the legitimate children of Eugenia dela Merced-Adriano (another sister of Evarista who died in 1965), namely: Herminio, Ruben, Joselito, Rogelio, Wilfredo, Victor and Constantino, all surnamed Adriano, Corazon Adriano-Ongoco and Jasmin Adriano-Mendoza.

Almost a year later or on March 19, 1988, to be precise, Francisco (Evarista's brother) died. He was survived by his wife Blanquita Errea dela Merced and their three legitimate children, namely, Luisito E. dela Merced, Blanquita M. Macatangay and Ma. Olivia M. Paredes.

On April 20, 1989, the three sets of heirs of the decedent, Evarista M. dela Merced, referring to (1) the abovenamed heirs of Francisco; (2) Teresita P. Rupisan and (3) the nine ^[9] legitimate children of Eugenia, executed an extrajudicial settlement, entitled "Extrajudicial Settlement of the Estate of the Deceased Evarista M. dela Merced" adjudicating the properties of Evarista to them, each set with a share of one-third (1/3) pro-indiviso.

On July 26 ,1990, private respondent Joselito P. Dela Merced , illegitimate son of the late Francisco de la Merced, filed a "Petition for Annulment of the Extrajudicial Settlement of the Estate of the Deceased Evarista M. Dela Merced with Prayer for a Temporary Restraining Order", alleging that he was fraudulently omitted from the said settlement made by petitioners, who were fully aware of his relation to the late Francisco. Claiming successional rights, private respondent Joselito prayed that he be included as one of the beneficiaries, to share in the one-third (1/3) pro-indiviso share in the estate of the deceased Evarista, corresponding to the heirs of Francisco.

On August 3, 1990, the trial court issued the temporary restraining order prayed for by private respondent Joselito, enjoining the sale of any of the real properties of the deceased Evarista.

After trial, however, or on June 10, 1992, to be definite, the trial court dismissed the petition, lifted the temporary restraining order earlier issued, and cancelled the notice of lis pendens on the certificates of title covering the real properties of the deceased Evarista.

In dismissing the petition, the trial court stated:

"The factual setting of the instant motion after considering the circumstances of the entire case and the other evidentiary facts and documents presented by the herein parties points only to one issue which goes into the very skeleton of the controversy, to wit: "Whether or not the plaintiff may participate in the intestate estate of the late Evarista M. Dela Merced in his capacity as representative of his alleged father, Francisdo Dela Merced, brother of the deceased, whose succession is under consideration.

x x x x x x x x x

It is to be noted that Francisco Dela Merced, alleged father of the herein plaintiff, is a legitimate child, not an illegitimate. Plaintiff, on the other hand, is admittedly an illegitimate child of the late Francisco Dela Merced. Hence, as such, he cannot represent his alleged father in the succession of the latter in the intestate estate of the late Evarista Dela Merced, because of the barrier in Art. 992 of the New Civil Code which states that:

`An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother, nor shall such children or relatives inherit in the same manner from the illegitimate child.'

The application of Art. 992 cannot be ignored in the instant case, it is clearly worded in such a way that there can be no room for any doubts and ambiguities. This provision of the law imposes a barrier between the illegitimate and the legitimate family. x x x" (Rollo, p. 87-88)

Not satisfied with the dismissal of his petition, the private respondent appealed to the Court of Appeals.

In its Decision of October 17,1996, the Court of Appeals reversed the decision of the trial court of origin and ordered the petitioners to execute an amendatory agreement which shall form part of the original settlement, so as to include private respondent Joselito as a co-heir to the estate of Francisco, which estate includes one-third (1/3) pro indiviso of the latter's inheritance from the deceased Evarista.

The relevant and dispositive part of the Decision of the Court of Appeals, reads:

"x x x x x x x x x

It is a basic principle embodied in Article 777, New Civil Code that the rights to the succession are transmitted from the moment of the death of the decedent, so that Francisco dela Merced inherited 1/3 of his sister's estate at the moment of the latter's death. Said 1/3 of Evarista's estate formed part of Francisco's estate which was subsequently transmitted upon his death on March 23, 1987 to his legal heirs, among whom is appellant as his illegitimate child. Appellant became entitled to his share in Francisco's estate from the time of the latter's death in 1987. The extrajudicial settlement therefore is void insofar as it deprives plaintiff-appellant of his share in the estate of Francisco M. dela Merced. As a consequence, the cancellation of the notice of lis pendens is not in order because the property is directly affected. Appellant has the right to demand a partition of his father's estate which includes 1/3 of the property inherited from Evarista dela Merced.

"WHEREFORE, premises considered, the appealed decision is hereby REVERSED and SET ASIDE. Defendants-appellees are hereby ordered to execute an amendatory agreement/settlement to include herein plaintiff-appellant Joselito dela Merced as co-heir to the estate of Francisco dela Merced which includes 1/3 of the estate subject of the questioned Deed of Extrajudicial Settlement of the Estate of Evarista M. dela Merced dated April 20, 1989. The amendatory agreement/settlement shall form part of the original Extrajudicial Settlement. With costs against defendants-appellees.

SO ORDERED." (Rollo, p. 41)

In the Petition under consideration, petitioners insist that being an illegitimate child, private respondent Joselito is barred from inheriting from Evarista because of the provision of Article 992 of the New Civil Code, which lays down an impassable barrier between the legitimate and illegitimate families.

The Petition is devoid of merit.

Article 992 of the New Civil Code is not applicable because involved here is not a situation where an illegitimate child would inherit ab intestato from a legitimate sister of his father, which is prohibited by the aforesaid provision of law. Rather, it is a scenario where an illegitimate child inherits from his father, the latter's share in or portion of, what the latter already inherited from the deceased sister, Evarista.

As opined by the Court of Appeals, the law in point in the present case is Article 777 of the New Civil Code, which provides that the rights to succession are transmitted from the moment of death of the decedent.

Since Evarista died ahead of her brother Francisco, the latter inherited a portion of the estate of the former as one of her heirs. Subsequently, when Francisco died, his heirs, namely: his spouse, legitimate children, and the private respondent, Joselito, an illegitimate child, inherited his (Francisco's) share in the estate of Evarista. It bears stressing that Joselito does not claim to be an heir of Evarista by right of representation but participates in his own right, as an heir of the late Francisco, in the latter's share (or portion thereof) in the estate of Evarista.

Petitioners argue that if Joselito desires to assert successional rights to the intestate estate of his father, the proper forum should be in the settlement of his own father's intestate estate, as this Court held in the case of Gutierrez vs. Macandog (150 SCRA 422 [1987])

Petitioners' reliance on the case of Gutierrez vs. Macandog (supra) is misplaced. The said case involved a claim for support filed by one Elpedia Gutierrez against the estate of the decedent, Agustin Gutierrez, Sr., when she was not even an heir to the estate in question, at the time, and the decedent had no obligation whatsoever to give her support. Thus, this Court ruled that Elpedia should have asked for support pendente lite before the Juvenile and Domestic Relations Court in which court her husband (one of the legal heirs of the decedent) had instituted a case for legal separation against her on the ground of an attempt against his life. When Mauricio (her husband) died, she should have commenced an action for the settlement of the estate of her husband, in which case she could receive whatever allowance the intestate court would grant her.

The present case, however, relates to the rightful and undisputed right of an heir to the share of his late father in the estate of the decedent Evarista, ownership of which had been transmitted to his father upon the death of Evarista. There is no legal obstacle for private respondent Joselito, admittedly the son of the late Francisco, to inherit in his own right as an heir to his father's estate, which estate includes a one-third (1/3) undivided share in the estate of Evarista.

WHEREFORE, for lack of merit, the Petition is hereby DENIED and the Appealed Decision of the Court of Appeals AFFIRMED in toto.

SO ORDERED.

Romero (Chairman), Panganiban, and Gonzaga-Reyes, JJ., concur.
Vitug, J., on official business abroad.