A long-running family squabble over a deceased businessman’s remains waxed hot anew: Pasay City Regional Trial Court (RTC) dismissed the plea of a widow to junk the civil case filed by her brother-in-law that seeks to exhume the remains of her husband in a disputed property at the Manila Memorial Park (MMP) in Parañaque City.

In his decision, Pasay City RTC Branch 119 Judge Pedro De Leon Gutierrez said that there is a probable cause to pursue the case filed by the plaintiff, Green Cross alcohol founder Gonzalo Co, against his sister-in-law, Lucy Co.

“Defendant’s (Lucy Co) averments that plaintiff (Gonzalo Co) cannot revoke his consent due to the existence of a co-ownership is a matter of defense and of evidence. Unfortunately, this Court cannot admit or conclude as fact the existence of a co-ownership absent any evidence supporting such averments,” Gutierrez said.

Co, who founded Green Cross, Inc. (GCI), asked the court in 2010 to order the transfer of the remains of his brother Joseph, Lucy Co’s husband, from a burial lot he owned at the MMP. Joseph died in 1992.

He had requested the exhumation to give way to the construction of a bone niche that the MMP management had approved but his sister-in-law had refused such request.

Under the law, the permission of the wife is needed for the exhumation and transfer of the remains to another lot.

Because of this, Lucy Co asked the Pasay judge to dismiss the case, arguing that Co had no cause of action, the venue was improper, and that his court had not acquired jurisdiction over the case. She also argued that the action was barred by prescription.

But Gutierrez said that all the elements of a cause of action were present in the case and since it was a personal action for specific performance, the venue of the suit was proper as Gonzalo Co is a resident of Pasay.

In her brief, Lucy Co argued that when the Gonzalo Co and his siblings consented to the construction of the family mausoleum over the MMP lots registered in their names, “all of them ceded rights of ownership and constituted to partake as co-owners of the lots and mausoleum that stands on them.”

In throwing out Lucy Co’s appeal, Gutierrez said the court has jurisdiction over the subject matter of the case and that it was filed with the period prescribed under Article 1146 of the Civil Code.

Gutierrez also ordered Lucy Co to file her answer to the complaint within 15 days of receipt.

Gutierrez said the case is one for simple recovery of possession, a personal action, and is directed at Lucy Co for her to agree on the exhumation of the remains of her husband.

He also noted that Gonzalo Co did not cede his rights over the property when he allowed it to be used as the resting place of his brother in 1992 and rejected the plea of Lucy Co that the suit be junked outright on the basis of prescription.

Lucy Co maintained that since the property in question had been used for more than 10 years, Gonzalo Co can no longer invoke his property rights based on Article 1134 of the Civil Code that states that ownership and other real rights over immovable property are acquired by ordinary prescription through possession of 10 years.

But the Pasay court explained that Lucy Co was invoking acquisitive prescription that “does not relate to the prescription of the litigant’s right of action which does not accrue until the party obligated refuses.”

Gutierrez emphasized that the Gonzalo Co’s formal demand letter was dated March 2, 2012 and the action instituted was within the prescribed period.