AUSTRIA vs.

REYES
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal
(Special Proceedings 2457) a petition for probate, ante mortem, of her last will and
testament. The probate was opposed by the present petitioners Ruben Austria, Consuelo
Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner, are
nephews and nieces of Basilia. This opposition was, however, dismissed and the probate
of the will allowed after due hearing.
On April 23, 1959, more than two years after her will was allowed to probate, Basilia died.
On February 6, 1963, more than three years after they were allowed to intervene, the
petitioners Ruben Austria, let al., moved the lower court to set for hearing the matter of
the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the late
Basilia. Before the date set by the court for hearing arrived, however, the respondent
Benita Cruz-Meez who entered an appearance separately from that of her brother
Perfecto Cruz, filed on February 28, 1963 a motion asking the lower court, by way of
alternative relief, to confine the petitioners' intervention, should it be permitted, to
properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides
subsequently submitted their respective memoranda, and finally, the lower court issued
an order on June 4, 1963, delimiting the petitioners' intervention to the properties
of the deceased which were not disposed of in the will.
The uncontested premises are clear. Two interests are locked in dispute over the bulk of
the estate of the deceased. Arrayed on one side are the petitioners Ruben Austria,
Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and nieces
who are concededly the nearest surviving blood relatives of the decedent. On the other
side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meez, Isagani
Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the deceased
Basilia, and all of whom claim kinship with the decedent by virtue of legal adoption. At
the heart of the controversy is Basilia's last will immaculate in its extrinsic
validity since it bears the imprimatur of duly conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which
the respondent Perfecto Cruz and his brothers and sisters claim to have with the
decedent. The lower court had, however, assumed, by its orders in question, that the
validity or invalidity of the adoption is not material nor decisive on the efficacy of the
institution of heirs; for, even if the adoption in question were spurious, the respondents
Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs but as
testamentary heirs instituted in Basilia's will. This ruling apparently finds support in
article, 842 of the Civil Code which reads:
One who has no compulsory heirs may dispose of by will all his estate or any part of it in
favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene
the provisions of this Code with regard to the legitime of said heirs.
The lower court must have assumed that since the petitioners nephews and niece are not
compulsory heirs, they do not possess that interest which can be prejudiced by a freewheeling testamentary disposition. The petitioners' interest is confined to properties, if
any, that have not been disposed of in the will, for to that extent intestate succession can
take place and the question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate
should descend to them by intestacy by reason of the intrinsic nullity of the institution of
heirs embodied in the decedent's will. They have thus raised squarely the issue of

whether or not such institution of heirs would retain efficacy in the event there exists
proof that the adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause.
Coming closer to the center of the controversy, the petitioners have called the attention
of the lower court and this Court to the following pertinent portions of the will of the
deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na
mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at
Isagani, na pawang may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang
maiiwan, sa kaparaanang sumusunod:
A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng bawa't
isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]),
ang kalahati () ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking
yumaong asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng testamentong
ito, ang kalahati () ng mga lagay na lupa at palaisdaan na nasa Obando at Polo,
Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang kalahati ()
ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumao kong
kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise to the inference that the
late Basilia was deceived into believing that she was legally bound to bequeath one-half
of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The
petitioners further contend that had the deceased known the adoption to be spurious,
she would not have instituted the respondents at all the basis of the institution
being solely her belief that they were compulsory heirs. Proof therefore of the
falsity of the adoption would cause a nullity of the institution of heirs and the opening of
the estate wide to intestacy. Did the lower court then abuse its discretion or act in
violation of the rights of the parties in barring the petitioners nephews and niece from
registering their claim even to properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the
following requisites must concur: First, the cause for the institution of heirs must be
stated in the will; second, the cause must be shown to be false; and third, it must
appear from the face of the will that the testator would not have made such institution if
he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for
the institution of the respondents was the testatrix's belief that under the law she could
not do otherwise. If this were indeed what prompted the testatrix in instituting the
respondents, she did not make it known in her will. Surely if she was aware that
succession to the legitime takes place by operation of law, independent of her own
wishes, she would not have found it convenient to name her supposed compulsory heirs

to their legitimes. Her express adoption of the rules on legitimes should very well indicate
her complete agreement with that statutory scheme. But even this, like the petitioners'
own proposition, is highly speculative of what was in the mind of the testatrix when she
executed her will. One fact prevails, however, and it is that the decedent's will does
not state in a specific or unequivocal manner the cause for such institution of
heirs. We cannot annul the same on the basis of guesswork or uncertain implications.

orders complained of served merely to clarify the first an act which the court could
legally do. Every court has the inherent power to amend and control its processes and
orders so as to make them conformable to law and justices. 6 That the court a quo has
limited the extent of the petitioners' intervention is also within its powers as articulated by
the Rules of Court.7
_____________________________________________________________________________________________________________________________________________

And even if we should accept the petitioners' theory that the decedent instituted
the respondents Perfecto Cruz, et al. solely because she believed that the law
commanded her to do so, on the false assumption that her adoption of these respondents
was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever
false cause the testator may have written in his will for the institution of heirs. Such
institution may be annulled only when one is satisfied, after an examination of the will,
that the testator clearly would not have made the institution if he had known the cause
for it to be false. Now, would the late Basilia have caused the revocation of the institution
of heirs if she had known that she was mistaken in treating these heirs as her legally
adopted children? Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at
best is vague and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang
mana," were borrowed from the language of the law on succession and were used,
respectively, to describe the class of heirs instituted and the abstract object of the
inheritance. They offer no absolute indication that the decedent would have willed her
estate other than the way she did if she had known that she was not bound by law to
make allowance for legitimes. Her disposition of the free portion of her estate
(libre disposicion) which largely favored the respondent Perfecto Cruz, the
latter's children, and the children of the respondent Benita Cruz, shows a
perceptible inclination on her part to give to the respondents more than what
she thought the law enjoined her to give to them. Compare this with the relatively
small devise of land which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner
Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al. from the
inheritance, then the petitioners and the other nephews and nieces would succeed to the
bulk of the testate by intestacy a result which would subvert the clear wishes of the
decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit
injunctions in the Civil Code: "The words of a will are to receive an interpretation which
will give to every expression some effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a will, that is to be preferred
which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate, 2 as was
done in this case. Moreover, so compelling is the principle that intestacy should be
avoided and the wishes of the testator allowed to prevail, that we could even vary the
language of the will for the purpose of giving it effect. 3 A probate court has found, by final
judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary
capacity and her last will executed free from falsification, fraud, trickery or undue
influence. In this situation, it becomes our duty to give full expression to her will. 4
At all events, the legality of the adoption of the respondents by the testatrix
can be assailed only in a separate action brought for that purpose, and cannot
be the subject of a collateral attack.5
To the petitioners' charge that the lower court had no power to reverse its order of
December 22, 1959, suffice it to state that, as borne by the records, the subsequent

REYES vs. BARETTO-DATU

Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case
No. 1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to
deliver to the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by
his deceasea wife under the terms of the will of the late Bibiano Barretto, consisting of lots
in Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the barrio of San
Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land
Records of this Province, being the share of plaintiff's wards as minor heirs of the
deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they
acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan,
covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285,
6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of
these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros
Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa
Barretto and his nephew an nieces The usufruct o the fishpon situate i barrio Sa
Roque Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria
Gerardo I the meantime Maria Gerardo was appointe administratrix. By virtue
thereof, she prepared a project of partition, which was signed by her in her own behalf
and as guardian of the minor Milagros Barretto. Said project of partition was approved by
the Court of First Instance of Manila on November 22, 1939. The distribution of the estate
and the delivery of the shares of the heirs followed forthwith. As a consequence, Salud
Barretto took immediate possession of her share and secured the cancellation of the
original certificates of title and the issuance of new titles in her own name.
Everything went well since then. Nobody was heard to complain of any irregularity in the
distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon
her death, it was discovered that she had executed two wills, in the first of which, she
instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second,
she revoked the same and left all her properties in favor of Milagros Barretto alone. Thus,
the later will was allowed and the first rejected. In rejecting the first will presented by
Tirso Reyes, as guardian of the children of Salud Barretto, the lower court held that Salud
was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto.
This ruling was appealed to the Supreme Court, which affirmed the same.1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir
of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased
Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this
action for the recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not
only of the fishpond under litigation, but of all the other properties willed and delivered to
Salud Barretto, for being a spurious heir, and not entitled to any share in the estate of

Bibiano Barretto, thereby directly attacking the validity, not only of the project of partition,
but of the decision of the court based thereon as well.

status is prohibited, the law nowhere forbids a settlement by the parties over the share
that should correspond to a claimant to the estate.

The defendant contends that the Project of Partition from which Salud acquired the
fishpond in question is void ab initio and Salud Barretto did not acquire any valid title
thereto, and that the court did not acquire any jurisdiction of the person of the defendant,
who was then a minor.'

At any rate, independently of a project of partition which, as its own name implies, is
merely a proposal for distribution of the estate, that the court may accept or reject, it is
the court alone that makes the distribution of the estate and determines the persons
entitled thereto and the parts to which each is entitled (Camia vs. Reyes, 63 Phil. 629,
643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it
is that judicial decree of distribution, once final, that vests title in the distributees. If the
decree was erroneous or not in conformity with law or the testament, the same should
have been corrected by opportune appeal; but once it had become final, its binding effect
is like that of any other judgment in rem, unless properly set aside for lack of jurisdiction
or fraud.

Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the
project of partition submitted in the proceedings for the settlement of the estate of
Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null
and void ab initio (not merely voidable) because the distributee, Salud Barretto,
predecessor of plaintiffs (now appellants), was not a daughter of the spouses Bibiano
Barretto and Maria Gerardo. The nullity of the project of partition was decreed on the basis
of Article 1081 of the Civil Code of 1889 (then in force) providing as follows: .
A partition in which a person was believed to be an heir, without being so, has been
included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that since Bibiano
Barretto was free to dispose of one-third (1/3) of his estate under the old Civil Code, his
will was valid in favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such free
part. And it concluded that, as defendant Milagros was the only true heir of Bibiano
Barretto, she was entitled to recover from Salud, and from the latter's children and
successors, all the Properties received by her from Bibiano's estate, in view of the
provisions of Article 1456 of the new Civil Code of the Philippines establishing that
property acquired by fraud or mistake is held by its acquirer in implied trust for the real
owner. Hence, as stated at the beginning of this opinion, the Court a quo not only
dismissed the plaintiffs' complaint but ordered them to return the properties received
under the project of partition previously mentioned as prayed for in defendant Milagros
Barretto's counterclaim. However, it denied defendant's prayer for damages. Hence, this
appeal interposed by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been
misapplied to the present case by the court below. The reason is obvious: Salud Barretto
admittedly had been instituted heir in the late Bibiano Barretto's last will and testament
together with defendant Milagros; hence, the partition had between them could not be
one such had with a party who was believed to be an heir without really being one, and
was not null and void under said article. The legal precept (Article 1081) does not speak of
children, or descendants, but ofheirs (without distinction between forced, voluntary or
intestate ones), and the fact that Salud happened not to be a daughter of the testator
does not preclude her being one of the heirs expressly named in his testament; for
Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he
chose. While the share () assigned to Salud impinged on the legitime of Milagros, Salud
did not for that reason cease to be a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller than her
legitime invalidate the institution of Salud as heir, since there was here no preterition, or
total ommission of a forced heir. For this reason,Neri vs. Akutin, 72 Phil. 322, invoked by
appellee, is not at all applicable, that case involving an instance of preterition or omission
of children of the testator's former marriage.
Appellee contends that the partition in question was void as a compromise on the civil
status of Salud in violation of Article 1814 of the old Civil Code. This view is erroneous,
since a compromise presupposes the settlement of a controversy through mutual
concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the Philippines,
Art. 2028); and the condition of Salud as daughter of the testator Bibiano Barretto, while
untrue, was at no time disputed during the settlement of the estate of the testator. There
can be no compromise over issues not in dispute. And while a compromise over civil

It is thus apparent that where a court has validly issued a decree of distribution of the
estate, and the same has become final, the validity or invalidity of the project of partition
becomes irrelevant.
It is, however, argued for the appellee that since the court's distribution of the estate of
the late Bibiano Barretto was predicated on the project of partition executed by Salud
Barretto and the widow, Maria Gerardo (who signed for herself and as guardian of the
minor Milagros Barretto), and since no evidence was taken of the filiation of the heirs, nor
were any findings of fact or law made, the decree of distribution can have no greater
validity than that of the basic partition, and must stand or fall with it, being in the nature
of a judgment by consent, based on a compromise. Saminiada vs. Mata, 92 Phil. 426, is
invoked in support of the proposition. That case is authority for the proposition that a
judgment by compromise may be set aside on the ground of mistake or fraud, upon
petition filed in due time, where petition for "relief was filed before the compromise
agreement a proceeding, was consummated" (cas. cit. at p. 436). In the case before us,
however, the agreement of partition was not only ratified by the court's decree of
distribution, but actually consummated, so much so that the titles in the name of the
deceased were cancelled, and new certificates issued in favor of the heirs, long before the
decree was attacked. Hence, Saminiada vs. Mata does not apply.
Moreover, the defendant-appellee's argument would be plausible if it were shown that the
sole basis for the decree of distribution was the project of partition. But, in fact, even
without it, the distribution could stand, since it was in conformity with the probated will of
Bibiano Barretto, against the provisions whereof no objection had been made. In fact it
was the court's duty to do so. Act 190, section 640, in force in 1939, provided: .
SEC. 640. Estate, How Administered. When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, and such letters
testamentary or of administration, shall extend to all the estate of the testator in the
Philippine Islands. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may operate
upon it; and the residue, if any, shall be disposed of as is provided by law in cases of
estates in these Islands belonging to persons who are inhabitants of another state or
country. (Emphasis supplied)
That defendant Milagros Barretto was a minor at the time the probate court distributed
the estate of her father in 1939 does not imply that the said court was without jurisdiction
to enter the decree of distribution. Passing upon a like issue, this Court ruled in Ramos vs.
Ortuzar, 89 Phil. Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they
would be concluded by the result of the proceedings, not only as to their civil status but as
the distribution of the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil.
938, "The proceeding for probate is one in rem (40 Cyc., 1265) and the court acquires
jurisdiction over all persons interested, through the publication of the notice prescribed by

section 630 C.P.C.; and any order that any be entered therein is binding against all of
them." (See also in re Estate of Johnson, 39 Phil. 156.) "A final order of distribution of the
estate of a deceased person vests the title to the land of the estate in the distributees".
(Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason
why, by analogy, these salutary doctrines should not apply to intestate proceedings.
The only instance that we can think of in which a party interested in a probate proceeding
may have a final liquidation set aside is when he is left out by reason of circumstances
beyond his control or through mistake or inadvertence not imputable to negligence. Even
then, the better practice to secure relief is reopening of the same case by proper motion
within the reglementary period, instead of an independent action the effect of which, if
successful, would be, as in the instant case, for another court or judge to throw out a
decision or order already final and executed and reshuffle properties long ago distributed
and disposed of.
It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto
Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and
that Maria Gerardo was not her judicially appointed guardian. The claim is not true. Maria
Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The
mere statement in the project of partion that the guardianship proceedings of the minor
Lucia Milagros Barretto are pending in the court, does not mean that the guardian had not
yet been appointed; it meant that the guardianship proceedings had not yet been
terminated, and as a guardianship proceedings begin with the appointment of a guardian,
Maria Gerardo must have been already appointed when she signed the project of
partition. There is, therefore, no irregularity or defect or error in the project of partition,
apparent on the record of the testate proceedings, which shows that Maria Gerardo had
no power or authority to sign the project of partition as guardian of the minor Lucia
Milagros Barretto, and, consequently, no ground for the contention that the order
approving the project of partition is absolutely null and void and may be attacked
collaterally in these proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only made a party
by publication but actually appeared and participated in the proceedings through her
guardian: she, therefore, can not escape the jurisdiction of the Manila Court of First
Instance which settled her father's estate.
Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could
not have ignored that the distributee Salud was not her child, the act of said widow in
agreeing to the oft-cited partition and distribution was a fraud on appellees rights and
entitles her to relief. In the first place, there is no evidence that when the estate of Bibiano
Barretto was judicially settled and distributed appellants' predecessor, Salud Lim Boco
Barretto to, knew that she was not Bibiano's child: so that if fraud was committed, it was
the widow, Maria Gerardo, who was solely responsible, and neither Salud nor her minor
children, appellants herein, can be held liable therefor. In the second placegranting that
there was such fraud, relief therefrom can only be obtained within 4 years from its
discovery, and the record shows that this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit
24), she became of age five years later, in 1944. On that year, her cause of action
accrued to contest on the ground of fraud the court decree distributing her father's estate
and the four-year period of limitation started to run, to expire in 1948 (Section 43, Act.
190). In fact, conceding that Milagros only became aware of the true facts in 1946
(Appellee's Brief, p. 27), her action still became extinct in 1950. Clearly, therefore, the
action was already barred when in August 31, 1956 she filed her counterclaim in this case
contesting the decree of distribution of Bibiano Barretto's estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence that
appellant Tirso Reyes had induced her to delay filing action by verbally promising to
reconvey the properties received by his deceased wife, Salud. There is no reliable
evidence of the alleged promise, which rests exclusively on the oral assertions of Milagros
herself and her counsel. In fact, the trial court made no mention of such promise in the
decision under appeal. Even more: granting arguendo that the promise was made, the
same can not bind the wards, the minor children of Salud, who are the real parties in
interest. An abdicative waiver of rights by a guardian, being an act of disposition, and not
of administration, can not bind his wards, being null and void as to them unless duly
authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the
proceedings for the settlement of the estate of Bibiano Barretto duly approved by the
Court of First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being
contrary to either Article 1081 or 1814 of the, Civil Code of 1889; (2) that Milagros
Barretto's action to contest said partition and decree of distribution is barred by the
statute of limitations; and (3) that her claim that plaintiff-appellant guardian is a
possessor in bad faith and should account for the fruits received from the properties
inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the
plaintiffs' action for partition of the fishpond described in the complaint should have been
given due course.
Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is
reversed and set aside in so far as it orders plaintiff-appellant to reconvey to appellee
Milagros Barretto Datu the properties enumeracted in said decision, and the same is
affirmed in so far as it denies any right of said appellee to accounting. Let the records be
returned to the court of origin, with instructions to proceed with the action for partition of
the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of the
Register of Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in
the complaint No costs.
AZNAR vs. DUNCAN
Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving
a will executed on March 5, 1951. The will was admitted to probate by the Court of First
Instance of Davao in its decision of February 28, 1954. In that same decision the court
declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was
a natural child of the deceased. The declaration was appealed to this Court, and was
affirmed in its decision of February 14, 1958 (G.R. No. L-11484).
In another incident relative to the partition of the deceased's estate, the trial court
approved the project submitted by the executor in accordance with the provisions of the
will, which said court found to be valid under the law of California. Helen Garcia appealed
from the order of approval, and this Court, on January 31, 1963, reversed the same
on the ground that the validity of the provisions of the will should be governed
by Philippine law, and returned the case to the lower court with instructions that the
partition be made as provided by said law (G.R. No. L-16749).
On October 29, 1964, the Court of First Instance of Davao issued an order approving the
project of partition submitted by the executor, dated June 30, 1964, wherein the
properties of the estate were divided equally between Maria Lucy Christensen
Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter
referred to as merely Lucy Duncan), whom the testator had expressly
recognized in his will as his daughter (natural) and Helen Garcia, who had been
judicially declared as such after his death. The said order was based on the
proposition that since Helen Garcia had been preterited in the will the institution of Lucy
Duncan as heir was annulled, and hence the properties passed to both of them as if the
deceased had died intestate, saving only the legacies left in favor of certain other

persons, which legacies have been duly approved by the lower court and distributed to
the legatees.
The case is once more before us on appeal, this time by Lucy Duncan, on the sole
question of whether the estate, after deducting the legacies, should pertain to her and to
Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir
should be merely reduced to the extent necessary to cover the legitime of Helen Garcia,
equivalent to 1/4 of the entire estate.
The will of Edward E. Christensen contains, among others, the following clauses which are
pertinent to the issue in this case:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs.
Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is
now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my
above-named daughter, MARIA LUCY CHRISTENSEN DANEY.
xxxxxxxxx
7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo
Garcia, about eighteen years of age and who, notwithstanding the fact that she was
baptized Christensen, is not in any way related to me, nor has she been at any time
adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao,
Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine
Currency, the same to be deposited in trust for the said Maria Helen Christensen with the
Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred
Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any
interest which may have accrued thereon, is exhausted.
xxxxxxxxx
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed at
my death and which may have come to me from any source whatsoever, during her
lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at
anytime prior to her decease having living issue, then and in that event, the life interest
herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my
daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of
my property with the same force and effect as if I had originally so given, devised and
bequeathed it to her; and provided, further, that should the said MARIA LUCY
CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and
bequeath all the rest, remainder and residue of my property one-half (1/2) to my wellbeloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth
Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased
brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles,
California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California,
U.S.A., share and share alike, the share of any of the three above named who may
predecease me, to go in equal parts to the descendants of the deceased; and, provided
further, that should my sister Mrs. Carol Louise C. Borton die before my own decease,
then, and in that event, the share of my estate devised to her herein I give, devise and
bequeath to her children, Elizabeth Borton de Trevio, of Mexico City Mexico; Barbara
Borton Philips, of Bakersfield, California, U.S.A., and Richard Borton, of Bakersfield,
California, U.S.A., or to the heirs of any of them who may die before my own decease,
share and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of Helen
Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of
heir pursuant to Article 854 of the Civil Code, which provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious.
On the other hand, appellant contends that this is not a case of preterition, but is
governed by Article 906 of the Civil Code, which says: "Any compulsory heir to whom the
testator has left by any title less than the legitime belonging to him may demand that the
same be fully satisfied." Appellant also suggests that considering the provisions of the will
whereby the testator expressly denied his relationship with Helen Garcia, but left to her a
legacy nevertheless although less than the amount of her legitime, she was in effect
defectively disinherited within the meaning of Article 918, which reads:
ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of
which, if contradicted, is not proved, or which is not one of those set forth in this Code,
shall annul the institution of heirs insofar as it may prejudice the person disinherited; but
the devices and legacies and other testamentary dispositions shall be valid to such extent
as will not impair the legitimate.
Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only
to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the
succession were intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of
Article 815. Commenting on Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de
memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra
plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los
bienes hereditarios, porcion que no alcanza a completar la legitima, pero que influeye
poderosamente en el animo del legislador para decidirle a adoptar una solucion bien
diferente de la sealada para el caso de pretericion.
El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero
haciendo un calculo equivocado, ha repartido en favor de extraos o en favor de otros
legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de
consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede
pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al
complemento de la porcion que forzosamente la corresponde.
... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de
herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de
bienes menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al
articulo 815, no pugna tampoco con la doctrina de la ley. Cuando en el testamento se deja
algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando
en el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th
Ed., 1951, p. 437.)
On the difference between preterition of a compulsory heir and the right to ask for
completion of his legitime, Sanchez Roman says:
La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se
presume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador
en su testamento a la satisfaccion del derecho a la legitima del heredero forzoso
preterido, prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de

sus disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni

por titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle
mas o menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir
su legitima, ya no seria caso de pretericion, sino de complementode aquella. El primer
supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la
institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo
original la accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI,
Vol. 2, p. 1131.)
Manresa defines preterition as the omission of the heir in the will, either by not naming
him at all or, while mentioning him as father, son, etc., by not instituting him as heir
without disinheriting him expressly, nor assigning to him some part of the properties.
Manresa continues:
Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento.
xxxxxxxxx
B. Que la omision sea completa Esta condicion se deduce del mismo Articulo 814 y
resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el
testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido
pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria
discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del
heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de
privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y
son, como veremos completamente distintos (6 Manresa, p. 428.)
La privacion de la legitima puede ser total o parcial.
Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella
por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es
menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde.
A este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las
consecuencias del que brantamiento de esta regla se determina en los articulos 814 y
815. (6 Manresa p. 418.)
Again Sanchez Roman:
QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no consigna de modo expreso
esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion
testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer
distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo
de un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el
testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria
pedir el complemento de la misma, lo cual yano son el caso ni los efectos de la
pretericion, que anula la institucion, sino simplemente los del suplemento necesario para
cubrir su legitima. (Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.)
The question may be posed: In order that the right of a forced heir may be limited only to
the completion of his legitime (instead of the annulment of the institution of heirs) is it
necessary that what has been left to him in the will "by any title," as by legacy, be
granted to him in his capacity as heir, that is, a titulo de heredero? In other words, should
he be recognized or referred to in the will as heir? This question is pertinent because in
the will of the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir
indeed her status as such is denied but is given a legacy of P3,600.00.
While the classical view, pursuant to the Roman law, gave an affirmative answer to the
question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo

VI, Vol. 2.0 p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de
1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation
given above, comments as follows:
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo en esta materia
en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional
modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se
le dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion
hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella
de inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no
fuera el de heredero, sino al honor de que se le privaba no dandole este caracter, y solo
cuando era instituido heredero en parte o cantidad inferior a lo que le correspondiera
por legitima, era cuando bastaba el ejercicio de la accion ad suplementum para
completarla, sin necesidad de anular las otras instituciones de heredero o demas
disposiciones contenidas en el testamento.
El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le
inspira cual es la de que se complete la legitima del heredero forzoso, a quien por
cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el
derecho de pedir el complemento de la misma sin necesidad de que se anulen las
disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al
articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la
jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de la
legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del
testador, segun lo revela el texto del articulo, "el heredero forzoso a quien el
testador haya dejado, etc., esto es por titulo de legado o donacionmortis causa en el
testamento y, no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 p. 937.)
Manresa cites particularly three decisions of the Supreme Court of Spain dated January
16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the
testator left to one who was a forced heir a legacy worth less than the legitime, but
without referring to the legatee as an heir or even as a relative, and willed the rest of the
estate to other persons. It was held that Article 815 applied, and the heir could not ask
that the institution of heirs be annulled entirely, but only that the legitime be completed.
(6 Manresa, pp. 438, 441.)
The foregoing solution is indeed more in consonance with the expressed wishes of the
testator in the present case as may be gathered very clearly from the provisions of his
will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her
share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to
possess such status is no reason to assume that had the judicial declaration come during
his lifetime his subjective attitude towards her would have undergone any change and
that he would have willed his estate equally to her and to Lucy Duncan, who alone was
expressly recognized by him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in
support of their theory of preterition. That decision is not here applicable, because it
referred to a will where "the testator left all his property by universal title to the children
by his second marriage, and (that) without expressly disinheriting the children by his first
marriage, he left nothing to them or, at least, some of them." In the case at bar the
testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of
P3,600.00.
The estate of the deceased Christensen upon his death consisted of 399 shares of stocks
in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of
said estate descended to Helen Garcia as her legitime. Since she became the owner of her
share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is
entitled to a corresponding portion of all the fruits or increments thereof subsequently
accruing. These include the stock dividends on the corporate holdings. The contention of

Lucy Duncan that all such dividends pertain to her according to the terms of the will
cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia
with respect to her legitime.
One point deserves to be here mentioned, although no reference to it has been made in
the brief for oppositor-appellant. It is the institution of substitute heirs to the estate
bequeathed to Lucy Duncan in the event she should die without living issue. This
substitution results in effect from the fact that under paragraph 12 of the will she is
entitled only to the income from said estate, unless prior to her decease she should have
living issue, in which event she would inherit in full ownership; otherwise the property will
go to the other relatives of the testator named in the will. Without deciding this, point,
since it is not one of the issues raised before us, we might call attention to the limitations
imposed by law upon this kind of substitution, particularly that which says that it can
never burden the legitime (Art. 864 Civil Code), which means that the legitime must
descend to the heir concerned in fee simple.
Wherefore, the order of the trial court dated October 29, 1964, approving the project of
partition as submitted by the executor-appellee, is hereby set aside; and the case is
remanded with instructions to partition the hereditary estate anew as indicated in this
decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more
than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the
hereditary estate, after deducting all debts and charges, which shall not include those
imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs
against appellees in this instance.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez,
JJ., concur.
RESOLUTION
July 30, 1967
MAKALINTAL, J.:
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to
an alleged oversight and asking for the corresponding correction, in the last paragraph
before the dispositive part of our decision, which reads as follows:
One point deserves to be here mentioned, although no reference to it has been made in
the brief for oppositor-appellant. It is the institution of substituted heirs to the estate
bequeathed to Lucy Duncan in the event she should die without living issue. This
substitution results in effect from the fact that under paragraph 12 of the will she is
entitled only to the income from said estate, unless prior to her decease she should have
living issue, in which event she would inherit in full ownership; otherwise the property will
go to the other relatives of the testator named in the will. Without deciding this
point, since it is not one of the issues raised before us, we might call attention to the
limitations imposed by law upon this kind of substitution, particularly that which says that
it can never burden the legitime (Art. 864, Civil Code), which means that the legitime
must descend to the heir concerned in fee simple. (Decision, June 30, 1966, pages 14-15;
emphasis ours).
Oppositor-appellant points out that the matter of substitution of heirs was taken up and
discussed in her brief particularly in pages 28 and 32 thereof. This is indeed quite true,
but the reference to and discussion of the rights of the substitute heirs (called American
heirs in the brief) appears to be merely for the purpose of refuting the theory advanced by
appellees and not for the purpose of having the rights of said heirs defined in so far as,
under the terms of the will, they may affect the legitime of oppositor-appellant. This point
of course was not and could hardly have been squarely raised as an issue inasmuch as
the substitute heirs are not parties in this case. We have nevertheless called attention "to

the limitations imposed by law upon this kind of substitution," because in the brief for
oppositor-appellant, at page 45, she makes the conclusion "that the Last Will and
Testament of Edward E. Christensen are valid under Philippine Law and must be given full
force and effect;" and to give them full force and effect would precisely affect the legitime
of oppositor-appellant.
Wherefore, the last paragraph before the dispositive part of our decision quoted above is
amended by eliminating the following phrase in the first sentence: "although no reference
to it has been made in the brief for oppositor-appellant."
___________________________________________________________________________________________
NERI vs. AKUTIN
This is a case where the testator in his will left all his property by universal title to the
children by his second marriage, the herein respondents, with preterition of the children
by his first marriage, the herein petitioner. This Court annulled the institution of heirs and
declared a total intestacy.
A motion for reconsideration has been filed by the respondents on the ground (1) that
there is no preterition as to the children of the first marriage who have received their
shares in the property left by the testator, and (2) that, even assuming that there has
been a preterition, the effect would not be the annulment of the institution of heirs but
simply the reduction of the bequest made to them.
1. The findings of the trial court and those of the Court of Appeals are contrary to
respondents' first contention. The children of the first marriage are Eleuterio, Agripino,
Agapita, Getulia (who died a little less than eight years before the death of her father
Agripino Neri, leaving seven children), Rosario and Celerina.
As to Eleuterio, the trial court said that "it is not, therefore, clear that Eleuterio has
received his share out of the properties left by his father." It is true that Eleuterio appears
to have received, as a donation from his father, parcel of land No. 4, but the question of
whether there has been a donation or not is apparently left for decision in an independent
action, and to that effect Ignacia Akutin has been appointed special administratrix for the
purpose of instituting such action.
With respect to Agripino and Agapita, the parcels of land which they have occupied,
according to the trial Court, "are a part of public land which had been occupied by
Agripino Neri Chaves, and, therefore, were not a part of the estate of the latter."
Concerning Getulia who died about eight years before the death of her father Agripino
Neri, the trial Court found that "neither Getulia nor her heirs received any share of the
properties."
And with respect to Rosario and Celerina, the trial Court said that "it does not appear
clear, therefore, that Celerina and Rosario received their shares in the estate left by their
father Agripino Neri Chaves."
This is in connection with the property, real or personal, left by the deceased. As to money
advances, the trial Court found:
It is contented, furthermore, that the children of Agripino Neri Chaves in his first marriage
received money from their father. It appears that Nemesio Chaves is indebted in the
amount of P1,000; Agripino, in the amount of P500 as appears in Exhibits 14 and 15;
Getulia, in the amount of P155 as appears in Exhibit 16, 17, and 18; Celerina in the
amount of P120 as appears in Exhibit 19, 19-A and 19-B.

From these findings of the trial Court it is clear that Agapita, Rosario and the children of
Getulia had received from the testator no property whatsoever, personal, real or in cash.

discussion as to the effect of preterition, they confuse article 814 with articles 817 and
851 and other articles of the Civil Code. These three articles read:

But clause 8 of the will is invoked wherein the testator made the statement that the
children by his first marriage had already received their shares in his property excluding
what he had given them as aid during their financial troubles and the money they had
borrowed from him which he condoned in the will. Since, however, this is an issue of fact
tried by the Court of First Instance, and we are reviewing the decision of the Court of
Appeals upon a question of law regarding that issue, we can rely only upon the findings of
fact made by the latter Court, which are as follows:

ART. 814. The preterition of one or of all of the forced heirs in the direct line, whether
living at the execution of the will or born after the death of the testator, shall annul the
institution of heirs; but the legacies and betterments shall be valid in so far as they are
not inofficious.

Since all the parcels that corresponded to Agripino Neri y Chaves are now in the
administrator's possession, as appears in the inventory filed in court, it is clear that the
property of the deceased has remained intact and that no portion thereof has been given
to the children of the first marriage.
xxx

xxx

xxx

It is stated by the court and practically admitted by the appellants that a child of the first
marriage named Getulia, or her heirs after her death, did not receive any share of the
property of her father.
It is true that in the decision of the Court of Appeals there is also the following
paragraphs:
As regards that large parcel of land adjoining parcel No. 1, it is contended that after the
court had denied the registration thereof. Agripino Neri y Chaves abandoned the said land
and that later on some of the children of the first marriage possessed it, thereby acquiring
title and interest therein by virtue of occupation and not through inheritance. It is not true
that this parcel containing 182.6373 hectares is now assessed in the names of some of
the children of the first marriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g,
the owners of the property are Agapita Neri de Chaves y Hermanos. Apparently, the said
land is still claimed to be the property not only of the children of the first marriage but
also of those of the second marriage.
This paragraph is but a corroboration of the finding made by the Court of Appeals that no
property has ever been advanced by the testator to the children by his first marriage. The
large parcel of land adjoining parcel No. 1 was alleged by the children of the second
marriage to have been advanced by the testator to the children by his first marriage; but
the Court of Appeals belied this claim. "It is not true," says that Court, "that this parcel
containing 182.6373 hectares is now assessed in the names of some of the children of the
first marriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g, the owners of the
property are Agapita Neri de Chaves y Hermanos," that is, the children of both marriages.
And the Court of Appeals added that "apparently, the said land is still claimed to be the
property not only of the children of the first marriage but also of those of the second
marriage," which is another way of stating that the property could not have been
advanced by the testator to the children by the first marriage would not lay a claim on it.
We conclude, therefore, that according to the findings of fact made by the Court of
Appeals, the testator left all his property by universal title to the children by his second
marriage, and that without expressly disinheriting the children by his first marriage, he
left all his property by universal title to the children by his second marriage, he left
nothing to them or, at least, some of them. This is, accordingly, a case of preterition
governed by article 814 of the Civil Code, which provides that the institution of heirs shall
be annulled and intestate succession should be declared open.
2. Upon the second question propounded in the motion for reconsideration, respondents
seem to agree that article 814 of the Civil Code is the law applicable but, in their

The preterition of the widower or widow does not annul the institution; but the person
omitted shall retain all the rights granted to him by articles 834, 835, 836, and 837 of this
Code.
ART. 817. Testamentary dispositions which diminish the legitimate of the forced heirs shall
be reduced on petition of the same in so far as they are inofficious or excessive.
ART. 851. Disinheritance made without a statement of the cause, or for a cause the truth
of which, if contested, is not shown, or which is not one of those stated in the four
following articles, shall annul the institution of heirs in so far as it is prejudicial to the
disinherited person; but the legacies, betterments, and other testamentary dispositions
shall be valid in so far as they are not prejudicial to said legitime.
The following example will make the question clearer: The testator has two legitimate
sons, A and B, and in his will he leaves all his property to A, with total preterition of B.
Upon these facts, shall we annul entirely the institution of heir in favor of A and declare a
total intestacy, or shall we merely refuse the bequest left A, giving him two-thirds, that is
one third of free disposal and one-third of betterments, plus one-half of the other third as
strict legitime, and awarding B only the remaining one-half of the strict legitime? If we do
the first, we apply article 814; if the second, we apply articles 851 or 817. But article 851
applies only in cases of unfounded disinheritance, and all are agreed that the present case
is not one of disinheritance but of preterition. Article 817 is merely a general rule
inapplicable to specific cases provided by law, such as that of preterition or disinheritance.
The meaning of articles 814 and 851, their difference and philosophy, and their relation to
article 817, are lucidly explained by Manresa in the following manner:
Cuando la legitima no es usufructuria, como ocurre en los demas casos, la pretericion no
puede menos de alterar esencialmente la institucion de heredero. Esta ha de anularse,
pero en todo o en parte, esto es, solo en cuanto perjudique el derecho del legitimario
preterido? El articulo 814 opta por la primer solucion, ya que hemos de atenermos
estrictmente al testo de la ley; mientras que el articulo 851, en casos anlogos, opta por la
segunda.
En efecto; la desheredacion sin justa causa no produce el efecto de desheredar. El
heredero conserva derecho a su legitima, pero nada mas que a su legitima. Los legados,
las merjoras, si las hay, y aun la institucion de heredero, son validas en cuanto no
perjudiquen al heredero forzoso.
La diferencia se notara perfectamente con un ejemplo. Un solteron, sin decendientes ni
ascendientes legitimos, hace testamento instituyendo por heredero a un pariente lejano.
Despues reconoce un hijo natural, o se casa y tiene descendencia, y muere sin modificar
su disposicion testamentaria. A su muerte, el hijo natural, o los legitimos, fundadose en la
nulidad total de la institucion, con arreglo al articulo 814, piden toda la herencia. En el
caso del articulo 851 solo podrian podrian pedir su legitima. Preterdos, adquieren derecho
a todo; desheredados, solo les corresponde un tercio o dos tercios, segun el caso.
En el fondo la cuestion es indentica. El testador puede siempre disponer a su arbitrio de la
parte libre. El legitimario, contra la voluntad expresa del testdor, solo tiene derecho a su
legitima. Preterido o desheredado sin justa causa la legitima. Preterido o desheredado sin
justa causa la legitma es suya. Desheredado o preterido, la porcion libre no le
corresponde, cuando el testador la asigna a otro. Logicamente no cabe que el legitmario,

en caso de pretericion, reciba todos los bienes cuando el testador haya dispuesto de ellos
a titulo de herencia, y no cuando haya dispuesto del tercio lebre a titulo de legado.
Cual es la razon de esta differencia? En la generalidad de los casos puede fundarse el
precepto en la presunta voluntad del testador. Este, al desheredar, revela que existe
alguna razon a motivo que le impulsa a obrar asi; podra no ser bastante para privar al
heredero de su legitima, pero siempre ha de estimarse sufficiente para privarle del resto
de la herencia, pues sobre esta no puede pretender ningun derecho el desheredad. El
heredero preterido no ha sido privado expresamente de nada; el testador, en los casos
normales, obra si por descuido o por error. Hemos visto un testamento en el que no se
institula heredera a una hija monja, por creer la testadora que no podia heredar. En otros
caos se ignora la existencia de un descendiente o de un ascendiente. Cuando el preterido
es una persona que ha nacido despues de muerto el testador o despues de hecho el
testamento, la razon es aun mas clara; la omision ha de presumirse involuntaria; el
testador debe suponerse que hubiera instituido heredero a esa persona si hubiera existido
al otorgarse el testamento, y no solo en cuanto a la legitima, sino en toda la herencia,
caso de no haber otros herederos forzosos, y en iguales terminos que los demas
herederos no mejorados de un mode expreso.
La opinion contraria puede tambien defederse, suponiendo que la ley anula el titulo de
heredero, mas no en absoluto la participacion en el caudal; que asi como al exceptuar la
mejora se refiere a todo el tercio o a la parte de el que haya distribuido el causante, al
exceptuar los legados se refierse a la parte libre de que haya dispuesto el mismo
testador, considerando como un simple legatario de esa porcion a la persona a quien el
testador designo como heredero. Abonaria esta solucion el articulo 817, al declarar que
las disposiciones testamentaria que menguan la legitima de los herederos forzosos han de
reducirse en cuanto fueren inoficiosas, pues amparado en este articulo el heredero
voluntario, puede pretender que la disposicion a su favor sea respetada en cuato no
perjudique a las legitimas.
La jurisprudencia no ha resuelto de frente esta cuestion, porque no se le ha presentado en
los terminos propuestos; pero ha demonstrado su criterio.
Hemos citado las Resoluciones de la Direccion de 30 de octubre de 1896 y de 20 de mayo
de 1893. En la primera se decide con valentia, con arreglo al texto expreso del articulo
814; la institucion de heredero se anula en absoluto, y se abre para toda la herencia la
succesion intestada. En la segunda se rehuye la cuestion, fundandose en circunstancias
secundarias. En el articulo siguiente examinaremos la sentencia de 16 de enero de 1895.
La interpretacion que rectamente se deprende del art 814, es la de que solo valen, y eso
en cuanto no sean inoficiosas, las disposiciones hechas a titulo de legado a mejora. En
cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo, o
en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa
que se anulara a institucion de heredero en cuanto perjudique a la legitima del
desheredado. Debe, pues, entenderse que la anulacion es completa o total, y que este
articulo, como especial en el caso que le motiva, rige con preferencia al 817. (6 Manresa,
3.a ed., pags. 351-353.) (Emphasis supplied).
The following opinion of Sanchez Roman is to the same effect and dispels all possible
doubt on the matter:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion
entestada, total o parcial. Sera total, cuando el testador que comete la pretericion,
hubiere dispuesto de todos los bienes por titulo universal de herencia en favor de los
hrederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del
precepto legal del articulo 814, al determinar, como efecto de la pretericion, el de que
"anularia la institucion de heredero". Cierto es que la preericion esta intorducida, como
remedio juridico, por sus efectos, en nombre y para garantia de la intergridad de la

legitima de los herederos forzosos y como consecuencia del precepto del 813, de que "el
testador no podra privar a los herederos de su legitima, sino en los casos expresamente
determinados por la ley", que son los de desheredacion con justa causa.
Cierto es, tambien, que en la desheredacion es muy otro el criterio del Codigo y que su
formula legal, en cuanto a sus efectos, es de alcance mas limitado, puesto que, conforme
al articulo 851, la desheredacion hecha sin condiciones de validez, "anulara la institucion
de heredero", lo mismo que la pretericion, pero solo "en cuanto perjudique la
desheredado de modo ilegal e ineficaz; salvedad o limitacion de los efectos de nulidad de
la institucion de los efectos de nulidad de la institucion hecha en el testmento, que no
existe, segun se ha visto en el 814, por el que se declara, en forma general e indistinta,
que anulara la institucion de heredero sin ninguna atencuacion respecto de que
perjudique o no, total o parcialmente, la cuantia de la legitima del heredero forzoso en
linea recta, preterido.
El resultado de ambos criterios y formulas legales, manifestamente distintas, tiene que
ser muy diverso. En el caso de la pretericion, propiamente tal o total pues si fuera
parcial y se la dejara algo al heredero forzoso por cualquier titulo, aunque see algo no
fuere suficiente al pago de sus derechos de legitima, no seria caso
de pretericion, regulado por el articulo 814, sino de complemento, regido por el 815 y la
institucion no se anularia sino que se modificaria o disminuiria en lo necesario para dicho
complente o de institucion de heredero en toda la herencia, al anularse la institucion,
por efecto de la preterido o preteridos, respecto de toda la herencia, tambien; mientras
qeu en el caso de desheredacion y de institucion en la totalidad de la herencia, tambien;
mientras que en el caso de desheredacion y de institucion en la totalidad de la herencia a
favor de otra persona, solo se anulara en parte precisa pra no perjudicar la legitima del
deshersado, que aun siendo en este caso la lata, si no hubo mejoras, porque no se
establecieron o porque los intituidos eran herederos voluntarios, dejaria subsistente la
institucion en la poarte correspoondiente al tercio de libre disposicion. Asi es que los
preteridos, en el supuesto indicado, suceden abintestato en todo, en concurrencia conlos
demas herederos forzosos o llamados pro la ley alabintestato; los
desheredados, unicamente en dos tercios o en uno o en uno tan solo, en la hipotesis de
haberse ordernado mejoras.
En cambio, ni por la desheredacion ni por la pretericion pierde su fuerza el testamento, en
cuanto a dicho tercio libre, is se trata dedescendientes; o la mitad, si se trata de
ascendientes, ya desheredados, ya preteridos, proque, ni por el uno ni por el otro medio,
se anula mas que la institucion de heredero, en general, y totalmente por la pretericion, y
solo en cuanto perjudique a la legitima del desheredado por la desheredacion; pero
subsistiendo, en ambos casos, todas acquellas otras disposiciones que no se refeiren a la
institucion de heredero y se hallen dentro del limite cuantitativo del tercio o mitad de libre
disposicion, segun que se trate de descendientes o ascendientes, preteridos o
desheredados.
La invocacion del articulo 817 para modificar estos efectos de la pretericion, procurando
limitar la anulacion de la institucion de herederos solo en cuanto perjudique a la legitima,
fundadose en que dicho articulo establece que "las disposiciones testamentarias que
menguan la legitma de los herederos forzosos se reduciran, a peticion de estos, en lo que
fueren inoficiosas o excesivas," no es aceptable ni puede variar acquellos resultados,
porque es un precepto de caracter general en toda otra clase de dsiposiciones
testamentarias que produzcan el efecto de menguar la legitima, que no puede
anteponerse, en su aplicacion, a las de indole especial para sealar los efectos de la
pretericion o de la desheredacion, regulados privativa y respectivamente por los articulos
814 y 851.
No obstante la pretericion, "valdran las mandas y legados en cuanto no sean inoficiosas."
El texto es terminante y no necesita mayor explicacion, despues de lo dicho, que su
propia letra, a no ser para observar que constituye una confimacion indudable de los
efectos de la pretericion, en cuanto alcanzansolo, pero totalmente, a la anulacion de la

institucion de heredero, pero no a la de las mandas y mejoras en cuanto no sean

preteridos; calficativo de tales, como sinonimo legal de excessivas, que en otros articulos,
como el 817, establece la ley. (6 Sanchez Roman, Volumen 2.o pags. 1140-1141.)
These comments should be read with care if we are to avoid misunderstanding. Manresa,
for instance, starts expounding the meaning of the law with an illustration. He says that in
case of preterition (article 814). the nullity of the institution of heirs is total, whereas in
case of disinheritance (article 851), the nullity is partial, that is, in so far as the institution
affects the legitime of the disinherited heirs. "Preteridos, adquieren derecho
atodo;desheredados, solo les corresponde un tercio o dos tercios, segun el caso." He then
proceeds to comment upon the wisdom of the distinction made by law, giving two views
thereon. He first lays the view contrary to the distinction made by law, then the
arguments in support of the distinction, and lastly a possible defense against said
arguments. And after stating that the Spanish jurisprudence has not as yet decided
squarely the question, with an allusion] to two resolutions of the Spanish Administrative
Direction, one in favor of article 814 and another evasive, he concludes that the
construction which may rightly be given to article 814 is that in case of preterition, the
institution of heirs is null in toto whereas in case of disinheritance the nullity is limited to
that portion of the legitime of which the disinherited heirs have been illegally deprived. He
further makes it clear that in cases of preterition, the property bequeathed by universal
titled to the instituted heirs should not be merely reduced according to article 817, but
instead, intestate succession should be opened in connection therewith under article 814,
the reason being that article 814, "como especial en el caso que le motiva, rige con
preferencia al 817." Sanchez Roman is of the same opinion when he said: "La invocacion
del articulo 817 para modificar estos efectos de la pretecion, procurando limitar la
anulacion de la institucion de heredero solo en cuanto perjudque a la legitima,
fundandose en que dicho articulo establece que "las disposiciones testmentarias que
menguan la legitima de los herederos forzosos se fueren inoficisosas o excesivas," no es
aceptable ni puede variar aquellos resultados, porque es un precepto de caracter
general en toda otra clase de disposiciones testmentarias que produzcan el efecto de
menguar la legitima, que no puede anteponerse, en su aplicacion, a las de indole
especial para sealar los efectos de la pretericon o de la desheredacion, regulados
privativa y respectivamente por los articulos 814 y 851.
Of course, the annulment of the institution of heirs in cases of preterition does not always
carry with it the ineffectiveness of the whole will. Neither Manresa nor Sanchez Roman nor
this Court has ever said so. If, aside from the institution of heirs, there are in the will
provisions leaving to the heirs so instituted or to other persons some specific properties in
the form of legacies or mejoras, such testamentary provisions shall be effective and the
legacies and mejoras shall be respected in so far as they are not inofficious or excessive,
according to article 814. In the instant case, however, no legacies or mejoras are provided
in the will, the whole property of the deceased having been left by universal title to the
children of the second marriage. The effect, therefore, of annulling the institution of heirs
will be necessarily the opening of a total intestacy.
But the theory is advanced that the bequest made by universal titled in favor of the
children by the second marriage should be treated as legado and mejora and, accordingly,
it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a
complete abrogation of articles 814 and 851 of the Civil Code. If every case of institution
of heirs may be made to fall into the concept of legacies and betterments reducing the
bequest accordingly, then the provisions of articles 814 and 851 regarding total or partial
nullity of the institution, would be absolutely meaningless and will never have any
application at all. And the remaining provisions contained in said article concerning the
reduction of inofficious legacies or betterments would be a surplusage because they
would be absorbed by article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.

With reference to article 814, which is the only provision material to the disposition of this
case, it must be observed that the institution of heirs is therein dealt with as a thing of
separate and distinct from legacies or betterment. And they are separate and distinct not
only because they are distinctly and separately treated in said article but because they
are in themselves different. Institution of heirs is a bequest by universal title of property
that is undetermined. Legacy refers to specific property bequeathed by a particular or
special title. The first is also different from a betterment which should be made expressly
as such (article 828). The only instance of implied betterment recognized by law is where
legacies are made which cannot be included in the free portion (article 828). But again an
institution of heirs cannot be taken as a legacy.
It is clear, therefore, that article 814 refers to two different things which are the two
different objects of its two different provisions. One of these objects cannot be made to
merge in the other without mutilating the whole article with all its multifarious
connections with a great number of provisions spread throughout the Civil Code on the
matter of succession. It should be borne in mind, further, that although article 814
contains who different provisions, its special purpose is to establish a specific rule
concerning a specific testamentary provision, namely, the institution of heirs in a case of
preterition. Its other provision regarding the validity of legacies and betterments if not
inofficious is a mere reiteration of the general rule contained in other provisions (articles
815 and 817) and signifies merely that it also applies in cases of preterition. As regards
testamentary dispositions in general, the general rule is that all "testamentary disposition
which diminish the legitime of the forced heirs shall be reduced on petition of the same in
so far as they are inofficous or excessive" (article 817). But this general rule does not
apply to the specific instance of a testamentary disposition containing an institution of
heirs in a case of preterition, which is made the main and specific subject of article 814. In
such instance, according to article 814, the testamentary disposition containing the
institution of heirs should be not only reduced but annulled in its entirety and all the
forced heirs, including the omitted ones, are entitled to inherit in accordance with the law
of intestate succession. It is thus evident that, if, in construing article 814, the institution
of heirs therein dealt with is to be treated as legacies or betterments, the special object of
said article would be destroyed, its specific purpose completely defeated, and in that wise
the special rule therein established would be rendered nugatory. And this is contrary to
the most elementary rule of statutory construction. In construing several provisions of a
particular statute, such construction shall be adopted as will give effect to all, and when
general and particular provisions are inconsistent, the latter shall prevail over the former.
(Act No. 190, secs. 287 and 288.)
The question herein propounded has been squarely decided by the Supreme Court of
Spain in a case wherein a bequest by universal title was made with preterition of heirs and
the theory was advanced that the instituted heirs should be treated as legatarios. The
Supreme Court of Spain said:
El articulo 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho
o el acto no se ha realizado, debiendo, por lo tanto, procederse sobre tal base o supuesto,
y consiguientemente, en un testmento donde fate la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribuido todos sus bienes en legados, siendo tanto mas obligada
esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de
quein testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpertacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues
aun cuando asi fuese, sera esto razon para modificar la ley, peo que no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la

testamnetificaion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay rason para convertir este juico en regla de interpretacion, desvirtuando
y anulando por este procedimiento lo que el legislator quiere establecer. (6 Sanchez
Roman, Volumen 2.o, p. 1138.)
It is maintained that the word "heredero" under the Civil Code, is not synonymous with the
term "heir" under the Code of Civil Procedure, and that the "heir" under the latter Code is
no longer personally liable for the debts of the deceased as was the "heredero" under the
Civil Code, should his acceptance be pure and simple, and from all these the conclusion is
drawn that the provisions of article 814 of the Civil Code regarding the total nullity of the
institution of heirs has become obsolete. This conclusion is erroneous. It confuses form
with substance. It must be observed, in this connection, that in construing and applying a
provision of the Civil Code, such meaning of its words and phrases as has been intended
by the framers thereof shall be adopted. If thus construed it is inconsistent with the
provisions of the Code of Civil Procedure, then it shall be deemed repealed; otherwise it is
in force. Repeals by implication are not favored by the courts and when there are two acts
upon the same subject, effect should be given to both if possible (Posadas vs. National
City Bank, 296 U. S., 497). The word "heir" as used in article 814 of the Civil Code may not
have the meaning that it has under the Code of Civil Procedure, but this in no wise can
prevent a bequest from being made by universal title as is in substance the subjectmatter of article 814 of the Civil Code. Again, it may also be true that heirs under the
Code of Civil Procedure may receive that bequest only after payment of debts left by the
deceased and not before as under the Civil Code, but this may have a bearing only upon
the question as to when succession becomes effective and can in no way destroy the fact
that succession may still be by universal or special title. Since a bequest may still be
made by universal title and with preterition of forced heirs, its nullity as provided in article
814 still applies there being nothing inconsistent with it in the Code of Civil Procedure.
What is important and is the basis for its nullity is the nature and effect of the bequest
and not its possible name nor the moment of its effectiveness under the Code of Civil
Procedure.
Furthermore, there were in the Code of Civil Procedure sections Nos. 755 and 756 which
read:
SEC. 755. Share of child born after making will. When a child of a testator is born after
the making of a will, and no provision is therein made for him, such child shall have the
same share in the estate of the testator as if he had died intestate; and share of such
child shall be assigned to him as in cases of intestate estates, unless it is apparent from
the will that it was the intention of the testator that no provision should be made for such
child.
SEC. 756. Share of child or issue of child omitted from will. When a testator omits to
provide in his will for any of his children, or for issue of a deceased child, and it appears
that such omission was made by mistake, or accident, such child, or the issue of such
child, shall have the same share in the estate of the testator as if he had died intestate, to
be assigned to him as in the case of intestate estates.
It is these provisions of the Code of Civil Procedure that have affected substantially
articles 814 and 851 of the Civil Code, but they have been expressly repealed by Act No.
2141, section 1 of which read as follows:
Sections seven hundred and fifty-five, seven hundred and fifty-six, seven hundred and
fifty-seven, seven hundred and fifty-eight, and seven hundred and sixty of Act Numbered
One hundred and ninety, entitled `An Act providing a Code of Procedure in Civil Actions
and Special Proceedings in the Philippine Islands are hereby repealed and such provisions
of the Civil Code as may have been amended or repealed by said sections are hereby
restored to full force and effects. (Emphasis ours.)

Among the provisions of the Civil Code which are thus expressly restored to full force are
undoubtedly articles 814 and 851. There can be no possible doubt, therefore, that those
two articles are in force.
Article 1080 of the Civil Code that is also invoked deserves no consideration except for the
observation that it has no relevancy in the instant case.
Our attention is directed to the case of Escuin vs. Escuin (11 Phil., 332). We have never
lost sight of the ruling laid down in that case which has been reiterated in Eleazar vs.
Eleazar (37 Off. Gaz., p. 1782). In the Escuin case, the deceased left all his property to his
natural father (not a forced heir) and his wife with total preterition of his father and wife.
Without reconsidering the correctness of the ruling laid down in these two cases, we will
note that the doctrine stands on facts which are different from the facts in the present
case. There is certainly a difference between a case of preterition in which the whole
property is left to a mere friend and a case of preterition in which the whole property is
left to one or some forced heirs. If the testamentary disposition be annulled totally in the
first case, the effect would be a total deprivation of the friend of his share in the
inheritance. And this is contrary to the manifest intention of the testator. It may fairly be
presumed that, under such circumstances, the testator would at leave give his friend the
portion of free disposal. In the second case, the total nullity of the testamentary
disposition would have the effect, not of depriving totally the instituted heir of his share in
the inheritance, but of placing him and the other forced heirs upon the basis of equality.
This is also in consonance with the presumptive intention of the testator. Preterition,
generally speaking, is due merely to mistake or inadvertence without which the testator
may be presumed to treat alike all his children.
And specially is this true in the instant case where the testator omitted the children by his
first marriage upon the erroneous belief that he had given them already more shares in
his property than those given to the children by his second marriage. It was, therefore, the
thought of the testator that the children by his first marriage should not receive less than
the children by his second marriage, and to that effect is the decision of this Court sought
to be reconsidered. Motion for reconsideration is hereby denied.
___________________________________________________________________________________________
NUGUID vs. NUGUID
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be admitted to probate and that
letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father
and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as
universal heir of the deceased, oppositors who are compulsory heirs of the deceased in
the direct ascending line were illegally preterited and that in consequence the
institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.

The court's order of November 8, 1963, held that "the will in question is a complete nullity
and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and
dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
probate of a will. The court's area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the court.
Said court at this stage of the proceedings is not called upon to rule on
the intrinsicvalidity or efficacy of the provisions of the will, the legality of any devise or
legacy therein.[[1]]
A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that the
will has been duly authenticated.[[2]] But petitioner and oppositors, in the court below and
here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears in
the record, in the event of probate or if the court rejects the will, probability exists that
the case will come up once again before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question.[[3]] After all, there exists a
justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below
that the will is a complete nullity. This exacts from us a study of the disputed will and the
applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
certain amount of property, do hereby give, devise, and bequeath all of the property
which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with
me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of
November, nineteen hundred and fifty-one.

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall void the
institution of heir; but the legacies and betterments [[4]] shall be valid, in so far as they are
not inofficious. .
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera
o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita
el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204
Pa. 484.[[6]]
The word "annul" as used in statute requiring court to annul alimony provisions of divorce
decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot
out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S.
2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132. [[7]]
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify;
to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.[[8]]
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents,
now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both
of them: They thus received nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre la institucion de heredero, dando
caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of
the Civil Code.[[9]] The one-sentence will here institutes petitioner as the sole, universal
heir nothing more. No specific legacies or bequests are therein provided for. It is in this
posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate.
Says Manresa:

(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious. .
Except for inconsequential variation in terms, the foregoing is a reproduction of Article
814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o

en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa
que se anulara la institucion de heredero en cuanto prejudique a la legitima del
deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con preferencia al 817. [[10]]
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion
intestada total o parcial. Sera total, cuando el testador que comete la pretericion, hubiese
dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos
instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal

del art. 814, al determinar, como efecto de la pretericion, el de que "anulara la institucion
de heredero." ... [[11]]
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of such institution of universal heir
without any other testamentary disposition in the will amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 offers no
leeway for inferential interpretation. Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual
del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule of
interpretation, viz:

neither instituted as heirs nor are expressly disinherited." [[16]] Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in thelegitime for a
cause authorized by law. " [[17]] In Manresa's own words: "La privacion expresa de la
legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." [[18]] Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to
be "involuntaria". [[19]] Express as disinheritance should be, the same must be supported
by a legal cause specified in the will itself. [[20]]
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho
o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada
esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues
aun cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador quiere establecer. [[12]]

On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall
annul the institution of heir". This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition. [[21]] Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive language, in commenting on the
rights of the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, [[22]] el caso. [[23]]

3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the mere institution of a
universal heir in a will void because of preterition would give the heir so instituted a
share in the inheritance. As to him, the will is inexistent. There must be, in addition to
such institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests)
"pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion
de heredero ... . [[13]] As Manresa puts it, annulment throws open to intestate succession
the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de
legado, mejora o donacion. [[14]]

But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and, accordingly,
it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a
complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution
of heirs may be made to fall into the concept of legacies and betterments reducing the
bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial
nullity of the institution, would. be absolutely meaningless and will never have any
application at all. And the remaining provisions contained in said article concerning the
reduction of inofficious legacies or betterments would be a surplusage because they
would be absorbed by Article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.

As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather
than one of preterition". [[15]] From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to appreciate the distinction
between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. [[24]]
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
theNeri case heretofore cited, viz:

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.
With reference to article 814, which is the only provision material to the disposition of this
case, it must be observed that the institution of heirs is therein dealt with as a thing
separate and distinct from legacies or betterments. And they are separate and distinct not
only because they are distinctly and separately treated in said article but because they
are in themselves different. Institution of heirs is a bequest by universal title of property
that is undetermined. Legacy refers to specific property bequeathed by a particular or
special title. ... But again an institution of heirs cannot be taken as a legacy. [[25]]
The disputed order, we observe, declares the will in question "a complete nullity". Article
854 of the Civil Code in turn merely nullifies "the institution of heir". Considering,
however, that the will before us solely provides for the institution of petitioner as universal
heir, and nothing more, the result is the same. The entire will is null.

_________________________________________________________________________________________
SOLANO vs. CA
A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming
the judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil
Case No. 3956, an action for Recognition.
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be
illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In
his Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of the
suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the
DECEDENT as the only surviving heir mentioned in his Last Will and Testament probated
on March 10, 1969, or prior to his death, in Special Proceedings No. 842 of the same
Court. ZONIA entered her formal appearance as a "substitute defendant" on March 4,
1970 claiming additionally that she was the sole heir of her father, SOLANO, and asking
that she be allowed to assume her duties as executrix of the probated Will with the least
interference from the GARCIAS who were "mere pretenders to be illegitimate children of
SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental
Cause of Action" impugning the recognition of ZONIA as an acknowledged natural child
with the prayer that she be declared instead, like them, as an adulterous child of the
DECEDENT. ZONIA did not file any responsive pleading and the case proceeded to trial.
The GARCIAS further moved for the impleading of the SOLANO estate in addition to
ZONIA, which was opposed by the latter, but which the Trial Court granted in its Order
dated April 15, 1970. 1
In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in
the parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2)
the correct status of ZONIA, and 3) the hereditary share of each of them in view of the
probated Will. 2
On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered
judgment the dispositive portion of which decrees: t.hqw

Emeteria Garcia was born (Exhibits "B " & "2"). Their birth certificates and baptismal
certificates mention only the mother's name without the father's name. The facts
establish, however, that SOLANO during his lifetime recognized the GARCIAS as his
children by acts of support and provisions for their education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this
relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her
Birth Certificate, her status was listed as "illegitimate"; her mother as Trinidad Tuagnon;
her father as "P.N.C. " (Exhibit "V"), or "padre no conocido".
During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on
November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and
Trinidad Tuagnon executed an "Escritura de Reconocimiento de Unit Hija Natural" (Exhibit
"Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the right to use the
name ZONIA Ana Solano y Tuagnon. The document was registered with the Local Civil
Registrar on the same date.
On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit "11"),
instituting ZONIA as his universal heir to all his personal and real properties in Camalig,
Tabaco and Malinao, all in the province of Albay, except for five parcels of land in
Bantayan, Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct Upon
SOLANO's petition (Exhibit "10"), the Will was duly probated on March 10, 1969 in Special
Proceedings No. 842 of the Court of First Instance of Albay, Branch II, in a Decision also
rendered by Judge Ezequiel S. Grageda (Exhibit "12").
As above stated, these facts are not in question.
Petitioner maintains, however, that: t.hqw
I
The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of
jurisdiction in declaring substitute defendant Zonia Ana Solano, now petitioner, an
illegitimate child of the late Dr. Meliton Solano in an action where private respondents, as
plaintiffs in the Court below, sought recognition as natural children of Dr. Meliton Solano.

WHEREFORE, judgment is hereby rendered declaring the plaintiffs Bienvenido S. Garcia

and Emeteria S. Garcia and the defendant Sonia Ana Tuagnon as the illegitimate children
of the late Dr. Meliton Solano under the class of ADULTEROUS CHILDREN, with all the
rights granted them by law. The institution of Sonia Ana Solano as sole and universal heir
of the said deceased in the will is hereby declared null and void and the three (3) children
shall share equally the estate or one- third (1/3) each, without prejudice to the legacy
given to Trinidad Tuagnon and the right of any creditors of the estate. No pronouncement
as to costs.

II

Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CAG.R. No. 49018).

The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of
jurisdiction in declaring nun and void the institution of heir in the last will and testament
of Dr. Meliton Solano, which was duly probated in special proceedings No. 842 of the Court
of First Instance of Albay, and in concluding that total intestacy resulted there from. 3

ZONIA seeks a reversal of that affirmance in this petition, which was given due course.
At the outset, we should state that we are bound by the findings of fact of both the Trial
Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are,
in fact, illegitimate children of the DECEDENT. The oral testimony and the documentary
evidence of record inevitably point to that conclusion, as may be gleaned from the
following background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The
latter died. On a world tour he met a French woman, Lilly Gorand, who became his second
wife in 1928. The union was short-lived as she left him in 1929. In the early part of 1930,
SOLANO started having amorous relations with Juana Garcia, out of which affair was born
Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935,

The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of
jurisdiction in ordering the division of the estate of Dr. Meliton Solano between the
petitioner and private respondents, when said estate is under the jurisdiction and control
of the probate Court in Special Proceedings No. 842.
III

Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to
declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in
the same action despite the pendency of Special Proceedings No. 842; and 3) to declare
null and void the institution of heir in the Last Win and Testament of SOLANO, which was
duly probated in the same Special Proceedings No. 842, and concluding that total
intestacy resulted.
It is true that the action below was basically one for recognition. However, upon notice of
SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving heir

... as of as of now" 4 In her "Appearance of Substitute Defendant Zonia Ana T. Solano ...
Sole and Universal Heir", ZONIA specifically prayed that she be 6 allowed to assume her
duties as executrix and administratrix of the probated will and testament of the late Dr.
Meliton Solano, under Special Proceedings No. 842, which is already final and executory,
with least interference from the plaintiffs (GARCIAS) who may be classified for the
moment as only pretenders to be illegitimate children". In other words, ZONIA did not only
rely upon SOLANO's Answer already of record but asserted new rights in her capacity as
sole and universal heir, "executrix and administratrix, "and challenged the right of the
GARCIAS to recognition. Thus, she was not defending the case as a mere representative of
the deceased but asserted rights and defenses in her own personal capacity. So it was
that the GARCIAS filed a "Reply to Appearance of ZONIA ... and Supplemental Cause of
Action ... "vigorously denying that ZONIA was SOLANO's sole and universal heir; that
ZONIA could not legally be considered as SOLANO's acknowledged natural child because
of a legal impediment; that the admission to probate of SOLANO's Will was merely
conclusive as to its due execution; that the supposed recognition under a notarial
instrument of ZONIA as an acknowledged natural child was fraudulent and a product of
misrepresentation; that ZONIA's recognition in the Will as an acknowledged natural child
is subject to nullification and that at most ZONIA is, like them, an adulterous child of
SOLANO with Trinidad Tuagnon.
During the trial, the GARCIAS presented evidence to prove their allegations not only in
their main complaint but also in their "Reply to Appearance and Supplemental Cause of
Action". ZONIA presented no objection to the presentation by the GARCIAS of their oral
and documentary evidence and even cross-examined their witnesses. ZONIA, for her part,
presented her own testimonial and documentary evidence, denied the relationship of the
GARCIAS' to SOLANO and presented the notarial recognition in her favor as an
acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as
raised by the parties in their own pleadings and pursuant to their respective evidence
during the trial, the litigation was converted into a contest between the GARCIAS and
ZONIA precisely as to their correct status as heirs and their respective rights as such. No
error was committed by either the Trial Court or the Appellate Court, therefore, in
resolving the issue of ZONIA's status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the
institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom;
and distributing the shares of the parties in SOLANO's estate when said estate was under
the jurisdiction and control of the Probate Court in Special Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar situation is thrust upon us
here. It should be recalled that SOLANO himself instituted the petition for probate of the
Will during his lifetime. That proceeding was not one to settle the estate of a deceased
person that would be deemed terminated only upon the final distribution of the residue of
the hereditary estate. With the Will allowed to probate, the case would have terminated
except that it appears that the parties, after SOLANO's death, continued to file pleadings
therein. Secondly, upon motion of the GARCIAS, and over the objection of ZONIA, the Trial
Court ordered the impleading of the estate of SOLANO and proceeded on that basis. In
effect, therefore, the two cases were consolidated. The records further disclose that the
action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before
the same Branch of the Court and before the same presiding Judge. Thirdly, it is settled
that the allowance of a Will is conclusive only as to its due execution. 5 A probate decree is
not concerned with the intrinsic validity or legality of the provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the
facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that
ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO
and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her
birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained
only in 1943, and, therefore, did not have the legal capacity to contract marriage at the
time of ZONIA's conception, 7 that being compulsory heirs, the GARCIAS were, in fact,

pretended from SOLANO's Last' Will and Testament; and that as a result of said
preterition, the institution of ZONIA as sole heir by SOLANO is null and void pursuant to
Article 854 of the Civil Code. t.hqw
The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious. ... 8
As provided in the foregoing provision, the disposition in the Will giving the usufruct in
favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a
legacy, recognized in Article 563 of the Civil Code, 9and should be respected in so far as it
is not inofficious. 10
So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares
of the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below,
holding that the entire Will is void and intestacy ensues, the pretention of the GARCIAS
should annul the institution of ZONIA as heir only insofar as the legitime of the omitted
heirs is impaired. The Will, therefore, is valid subject to that limitation. 11 It is a plain that
the intention of the testator was to favor ZONIA with certain portions of his property,
which, under the law, he had a right to dispose of by Will, so that the disposition in her
favor should be upheld as to the one-half (1/2) portion of the property that the testator
could freely dispose of. 12 Since the legitime of illegitimate children consists of one half
(1/2) of the hereditary estate, 13 the GARCIAS and ZONIA each have a right to participation
therein in the proportion of one-third (1/3) each. ZONIA's hereditary share will, therefore,
be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will respectively be entitled
to 1/3 of 1/2 or 1/6 of the value of the estate.
As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties
indicated in the Will is valid and should be respected.
The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et
al., 15 which held that where the institution of a universal heir is null and void due to
pretention, the Will is a complete nullity and intestate succession ensues, is not applicable
herein because in the Nuguid case, only a one-sentence Will was involved with no other
provision except the institution of the sole and universal heir; there was no specification of
individual property; there were no specific legacies or bequests. It was upon that factual
setting that this Court declared: t.hqw
The disputed order, we observe, declares the will in question 'a complete nullity. Article
854 of the Civil Code in turn merely nullifies 'the institution of heir'. Considering, however,
that the will before us solely provides for the institution of petitioner as universal heir, and
nothing more, the result is the same. The entire will is null." (at p. 459)
In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of
the Civil Code, supra, applies merely annulling the "institution of heir".
Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate
Court was never questioned before either Court. ZONIA herself had gone, without
objection, to trial on the issues raised and as defined by the Trial Court. Neither had ZONIA
assigned lack of jurisdiction of the Trial Court as an error before the Appellate Court. She
should now be held estopped to repudiate that jurisdiction to which she had voluntarily
submitted, after she had received an unfavorable judgment, The leading case of Tijam vs.
Sibonghanoy, 16 on this point, declared: t.hqw
A party cannot invoke the jurisdiction of a court to secure affirmative relief against his
opponent and after failing to obtain such relief, repudiate or question the same
jurisdiction. The question whether the court has jurisdiction either of the subject matter of
the action or of the parties is not because the judgment or order of the court is valid and

conclusive as an adjudication but for the reason that such practice cannot be tolerated
obviously for reasons of public policy. After voluntarily submitting a cause and
encountering an adverse decision on the merits, it is too late for the loser to question the
jurisdiction or power of the court.
WHEREFORE, the judgment under review is hereby modified in that the hereditary share
in the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be
(1/2 + (1/3 of 1/2) or 4/6 of said estate, while that of private respondents, Bienvenido S.
Garcia and Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The
usufruct in favor of Trinidad Tuagnon shall be respected. The judgment is affirmed in all
other respects. No costs.

(2) he is merely a universal heir and (3) the widow and the adopted daughter have been
pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition with
preliminary injunction which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3;
Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and
ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain
in Special Proceedings No. 591 ACEB

___________________________________________________________________________________________
ACAIN vs. IAC, G.R. No. 72706

His motion for reconsideration having been denied, petitioner filed this present petition for
the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6).
Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals
in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the
dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on
October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for
reconsideration.

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the
Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the
Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition
in Special Proceedings No. 591 ACEB No special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court,
now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu
City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the
issuance to the same petitioner of letters testamentary, docketed as Special Proceedings
No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in
which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita,
Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by
Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation
in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private
respondents. The will contained provisions on burial rites, payment of debts, and the
appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On
the disposition of the testator's property, the will provided:

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary
injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity
of the will sought to be probated and it cannot pass upon the intrinsic validity thereof
before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The
preterition mentioned in Article 854 of the New Civil Code refers to preterition of
"compulsory heirs in the direct line," and does not apply to private respondents who are
not compulsory heirs in the direct line; their omission shall not annul the institution of
heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere
institution of a universal heir in the will would give the heir so instituted a share in the
inheritance but there is a definite distinct intention of the testator in the case at bar,
explicitly expressed in his will. This is what matters and should be in violable.

THIRD: All my shares that I may receive from our properties. house, lands and money
which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother
SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C
Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the
money properties, lands, houses there in Bantayan and here in Cebu City which constitute
my share shall be given to me to his children, namely: Anita, Constantino, Concepcion,
Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition
in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591
ACEB

Article 854 of the Civil Code provides:

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased
and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the
following grounds for the petitioner has no legal capacity to institute these proceedings;

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional
and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devisees and legacies shall be valid
insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he
effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450
[1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is
concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend
from the testator, although she is a compulsory heir. Stated otherwise, even if the
surviving spouse is a compulsory heir, there is no preterition even if she is omitted from
the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the same
thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption
by the testator has not been questioned by petitioner (.Memorandum for the Petitioner,
pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code,
adoption gives to the adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a legal heir of the adopter.
It cannot be denied that she has totally omitted and preterited in the will of the testator
and that both adopted child and the widow were deprived of at least their legitime.
Neither can it be denied that they were not expressly disinherited. Hence, this is a clear
case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en
virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result
in intestacy are the legacies and devises made in the will for they should stand valid and
respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of
such institution of universal heirs-without any other testamentary disposition in the willamounts to a declaration that nothing at all was written. Carefully worded and in clear
terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid
v. Nuguid), supra. No legacies nor devises having been provided in the will the whole
property of the deceased has been left by universal title to petitioner and his brothers and
sisters. The effect of annulling the "Institution of heirs will be, necessarily, the opening of
a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and
devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a
probate proceeding he must have an interest iii the estate, or in the will, or in the property
to be affected by it either as executor or as a claimant of the estate and an interested
party is one who would be benefited by the estate such as an heir or one who has a claim
against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner
is not the appointed executor, neither a devisee or a legatee there being no mention in
the testamentary disposition of any gift of an individual item of personal or real property
he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an
interest in the will as an heir, defined under Article 782 of the Civil Code as a person
called to the succession either by the provision of a will or by operation of law. However,
intestacy having resulted from the preterition of respondent adopted child and the
universal institution of heirs, petitioner is in effect not an heir of the testator. He has no
legal standing to petition for the probate of the will left by the deceased and Special
Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned
order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465
[1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of
Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is
axiomatic that the remedies of certiorari and prohibition are not available where the

petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in
the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590
[1982]). They are, however, proper remedies to correct a grave abuse of discretion of the
trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda.
de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent
Court, the general rule is that the probate court's authority is limited only to the extrinsic
validity of the will, the due execution thereof, the testator's testamentary capacity and
the compliance with the requisites or solemnities prescribed by law. The intrinsic validity
of the will normally comes only after the Court has declared that the will has been duly
authenticated. Said court at this stage of the proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449
[1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478
[1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of
Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid
the oppositors to the probate moved to dismiss on the ground of absolute preteriton The
probate court acting on the motion held that the will in question was a complete nullity
and dismissed the petition without costs. On appeal the Supreme Court upheld the
decision of the probate court, induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears in
the record, in the event of probate or if the court rejects the will, probability exists that
the case will come up once again before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question. After all there exists a
justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the
surviving spouse was grounded on petitioner's lack of legal capacity to institute the
proceedings which was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the
petition deals with the validity of the provisions of the will. Respondent Judge allowed the
probate of the will. The Court held that as on its face the will appeared to have preterited
the petitioner the respondent judge should have denied its probate outright. Where
circumstances demand that intrinsic validity of testamentary provisions be passed upon
even before the extrinsic validity of the will is resolved, the probate court should meet the
issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp.
Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1)
petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal
heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It
was denied by the trial court in an order dated January 21, 1985 for the reason that "the
grounds for the motion to dismiss are matters properly to be resolved after a hearing on
the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent
motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p.
109).
For private respondents to have tolerated the probate of the will and allowed the case to
progress when on its face the will appears to be intrinsically void as petitioner and his

brothers and sisters were instituted as universal heirs coupled with the obvious fact that
one of the private respondents had been preterited would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added futility. The trial
court could have denied its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic validity of the will was resolved
(Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and
prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v.
Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the
Court harkens to the rule that in the broader interests of justice, a petition for certiorari
may be entertained, particularly where appeal would not afford speedy and adequate
relief. (Maninang Court of Appeals, supra).
_____________________________________________________________________________________
DY YIENG SEANGIO vs. REYES
This is a petition for certiorari1 with application for the issuance of a writ of preliminary
injunction and/or temporary restraining order seeking the nullification of the orders, dated
August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila, Branch 21
(the RTC), dismissing the petition for probate on the ground of preterition, in the
consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and
entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D.
Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C. Seangio v. Dy
Yieng Seangio, Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of the
RTC, and praying for the appointment of private respondent Elisa D. SeangioSantos as
special administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition.
They contended that: 1) Dy Yieng is still very healthy and in full command of her faculties;
2) the deceased Segundo executed a general power of attorney in favor of Virginia giving
her the power to manage and exercise control and supervision over his business in the
Philippines; 3) Virginia is the most competent and qualified to serve as the administrator
of the estate of Segundo because she is a certified public accountant; and, 4) Segundo
left a holographic will, dated September 20, 1995, disinheriting one of the private
respondents, Alfredo Seangio, for cause. In view of the purported holographic will,
petitioners averred that in the event the decedent is found to have left a will, the intestate
proceedings are to be automatically suspended and replaced by the proceedings for the
probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as
SP. Proc. No. 9993396, was filed by petitioners before the RTC. They likewise reiterated
that the probate proceedings should take precedence over SP. Proc. No. 9890870
because testate proceedings take precedence and enjoy priority over intestate
proceedings.2
The document that petitioners refer to as Segundos holographic will is quoted, as follows:
Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio
dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at
sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako
nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking
Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa
aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng
Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya
anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng
tatlong saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No. 99
93396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings5 primarily on the ground that the document purporting to be the holographic
will of Segundo does not contain any disposition of the estate of the deceased and thus
does not meet the definition of a will under Article 783 of the Civil Code. According to
private respondents, the will only shows an alleged act of disinheritance by the decedent
of his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not
named nor instituted as heir, devisee or legatee, hence, there is preterition which would
result to intestacy. Such being the case, private respondents maintained that while
procedurally the court is called upon to rule only on the extrinsic validity of the will, it is
not barred from delving into the intrinsic validity of the same, and ordering the dismissal
of the petition for probate when on the face of the will it is clear that it contains no
testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally,
the authority of the probate court is limited only to a determination of the extrinsic

validity of the will; 2) private respondents question the intrinsic and not the extrinsic
validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent;
and, 4) the rule on preterition does not apply because Segundos will does not constitute a
universal heir or heirs to the exclusion of one or more compulsory heirs. 6

FROM THE FACE OF THE TESTATORS WILL THAT NO PRETERITON EXISTS AND THAT THE
WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate
proceedings:

RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE

INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS
TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.

A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et

al., clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo
and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus
applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does
not apply, she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to
an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate
Court [155 SCRA 100 (1987)] has made its position clear: "for respondents to have
tolerated the probate of the will and allowed the case to progress when, on its face, the
will appears to be intrinsically void would have been an exercise in futility. It would
have meant a waste of time, effort, expense, plus added futility. The trial court could have
denied its probate outright or could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic validity of the will was resolved (underscoring
supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED
for lack of merit. Special Proceedings No. 9993396 is hereby DISMISSED without
pronouncement as to costs.
SO ORDERED.7
Petitioners motion for reconsideration was denied by the RTC in its order dated October
14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED A
QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE
QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS
"A" AND "B" HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE
76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE FOR
INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED
THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATORS WILL IS VOID
ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE
INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT
THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE
EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATORS
TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES
PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO
RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE

III

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to: a) fix the time and place for proving the
will when all concerned may appear to contest the allowance thereof, and cause notice of
such time and place to be published three weeks successively previous to the appointed
time in a newspaper of general circulation; and, b) cause the mailing of said notice to the
heirs, legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its
title clearly states,Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a
compulsory heir. Thus, there is no preterition in the decedents will and the holographic
will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs
in the direct line of Segundo were preterited in the holographic will since there was no
institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was dated,
signed and written by him in his own handwriting. Except on the ground of preterition,
private respondents did not raise any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundos
intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that
he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be
effected through a will wherein the legal cause therefor shall be specified. With regard to
the reasons for the disinheritance that were stated by Segundo in his document, the Court
believes that the incidents, taken as a whole, can be considered a form of maltreatment of
Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the
disinheritance of a child or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes
the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who disinherit
such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant; 8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo
can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed.
Segundos document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to dispose mortis
causa[9] can be clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latters property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the disinheritance results in
the disposition of the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed
in the form and within the limits prescribed by law, must be recognized as the supreme
law in succession. All rules of construction are designed to ascertain and give effect to
that intention. It is only when the intention of the testator is contrary to law, morals, or
public policy that it cannot be given effect.11
Holographic wills, therefore, being usually prepared by one who is not learned in the law,
as illustrated in the present case, should be construed more liberally than the ones drawn
by an expert, taking into account the circumstances surrounding the execution of the
instrument and the intention of the testator. 12 In this regard, the Court is convinced that
the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by
Segundo to be his last testamentary act and was executed by him in accordance with law
in the form of a holographic will. Unless the will is probated, 13 the disinheritance cannot be
given effect.14
With regard to the issue on preterition,15 the Court believes that the compulsory heirs in
the direct line were not preterited in the will. It was, in the Courts opinion, Segundos last
expression to bequeath his estate to all his compulsory heirs, with the sole exception of
Alfredo. Also, Segundo did not institute an heir16 to the exclusion of his other compulsory
heirs. The mere mention of the name of one of the petitioners, Virginia, in the document
did not operate to institute her as the universal heir. Her name was included plainly as a
witness to the altercation between Segundo and his son, Alfredo.1wphi1
Considering that the questioned document is Segundos holographic will, and that the law
favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838
of the Civil Code provides that no will shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules of Court. Thus, unless the will is
probated, the right of a person to dispose of his property may be rendered nugatory. 17

In view of the foregoing, the trial court, therefore, should have allowed the holographic
will to be probated. It is settled that testate proceedings for the settlement of the estate
of the decedent take precedence over intestate proceedings for the same purpose. 18
___________________________________________________________________________________________
PCIB vs. ESCOLIN
Himayin ang kaso, otherwise, you wont be able to usethe case later on. Superficial ang
pagkakaintindi niyo sakaso. Wont be able to make use of them unless youencountered a
deeper treatment.Mag-asawa si Linnie Jane and Charles Newton, theysettled in Baguio
kasi malamig dun. But during thelifetime of Linnie, sha yung business woman between
thetwo of them. Acquired many properties, may parityamendment pa kasi dati. She died,
survived by husband,no children, descendants. Left behind a will: I leave allmy wordly
possession to my beloved husband. Free to dowhatever he wants to do with all those
properties. He isat liberty. HOWEVER, if something remains of thoseproperties when he
dies, the remainder shall go toborhters and sisters. Died ahead of husband, willadmitted
to probate, delivered to husband
Nung bata akong lawyer not so long ago, I handled acase of Hodges spouses property in
Pangasinan. Merongattorneys fees. Important sakin yan. Charles was notvery extravagant
in his lifestyle. Hindi niya naubos yunginiwan ni Linnie. Marami natira when Charles died
muchlater. May natirang kayamanan, may pag-aawayan. Turoni Dean Magallona sa amin.
You should die broke. Sonothing for your relatives to quarrel about. Die broke.Sino nagaaway? Bro and sis of Linnie claiming theresidue vs. bro and sis of CharlesHow come,
what are the arguments?MRS: kami po magmamana kasi provided for in linnieswill. Case
of vulgar substitution under provisions of thecode.MR: Hindi yan vulgar, fideicommisary
yan. WON Vulgarhappens take at the time of testators death. Nakamanana si Charles eh!
Fideicommisary was void kasi ngawalang nakalagay that Charles was obliged to
preserveand then transmit the property. Justice Antonio Barredo, alumni of this
College:Escolin is relative of Mike Manotoc being first cousin of his Grandma who is the
sister of Mrs. Disini and yet hedoesnt know.
Not vulgar: heir instituted is not able to inherit. Charles(original heir) was able to inherit.
Not fideicommisary: such substitution must be intendedby the testator. If the testator
intended a fideicommisarybut later on became null and void then we apply A868.We
cannot do so because Mrs. Hodges did not intend tofideicommisary substitution because
allowed husbandto spend. Since not allowed, dont allow 868 provisionon
fideicommisary.It is neither vulgar nor fideicommisary.Sino magmamana? Bro and sis of
Linnie Ann becauseMrs. was a valid disposition. That disposition is adisposition subject to
resolutory as regards Charles, andsuspensive on the part of brothers and sisters of
Mrs.Hodges.- tamang decision
---------------------------------------------------------------------------------------------------------------------------------------------------

PALACIOS vs. RAMIREZ

The main issue in this appeal is the manner of partitioning the testate estate of Jose
Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron
de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his companion Wanda
de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris,
while the companion Wanda is an Austrian who lives in Spain. Moreover, the testator
provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only
his widow as compulsory heir. His will was admitted to probate by the Court of First
Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate. In due time she submitted an inventory of the estate as
follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila............................................................. P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00
por accion ................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en

El precedente legado en nuda propiedad de la participacion indivisa de la finca Santa Cruz

Building, lo ordena el testador a favor de los legatarios nombrados, en atencion a que
dicha propiedad fue creacion del querido padre del otorgante y por ser aquellos
continuadores del apellido Ramirez,
B.Y en usufructo a saber:
a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle Ramirez,
domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia, con sustitucion
vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma de Mallorca, Son
Rapina Avenida de los Reyes 13,
b.Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da. Wanda de
Nrobleski con sustitucion vulgar v fideicomisaria a saber:
En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski, de
Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a favor de su sobrino, D.
Horace V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las
usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en cualquier
memento vender a tercero los bienes objeto delegado, sin intervencion alguna de los
titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the widow
'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go
to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the
free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a
usufruct in favor of Wanda.

Deuda al Banco de las Islas Filipinas, garan-

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions
for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct
and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's
usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator; (b)
that the provisions for fideicommissary substitutions are also invalid because the first
heirs are not related to the second heirs or substitutes within the first degree, as provided
in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the
Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of
the Philippine Constitution; and that (d) the proposed partition of the testator's interest in
the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates
the testator's express win to give this property to them Nonetheless, the lower court
approved the project of partition in its order dated May 3, 1967. It is this order which Jorge
and Roberto have appealed to this Court.

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

1. The widow's legitime.

VALOR LIQUIDO........................................... P507,976.97

The appellant's do not question the legality of giving Marcelle one-half of the estate in full
ownership. They admit that the testator's dispositions impaired his widow's legitime.
Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she
or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone
survived the deceased, she is entitled to one-half of his estate over which he could
impose no burden, encumbrance, condition or substitution of any kind whatsoever. (Art.
904, par. 2, Civil Code.)

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust
Co.............................................................................................. 2,350.73
TOTAL.............................................................. P512,976.97
MENOS:

The testamentary dispositions are as follows:

A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad,
residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D. Jose Ma.
Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes, y, en su
defecto, con sustitucion vulgar reciprocal entre ambos.

It is the one-third usufruct over the free portion which the appellants question and
justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle
because the testament provides for a usufruct in her favor of one-third of the estate. The
court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio"

as her legitime and which is more than what she is given under the will is not entitled to
have any additional share in the estate. To give Marcelle more than her legitime will run
counter to the testator's intention for as stated above his dispositions even impaired her
legitime and tended to favor Wanda.

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to
Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary
substitution "provided such substitution does not go beyond one degree from the heir
originally instituted."

2. The substitutions.

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

It may be useful to recall that "Substitution is the appoint- judgment of another heir so
that he may enter into the inheritance in default of the heir originally instituted." (Art.
857, Civil Code. And that there are several kinds of substitutions, namely: simple or
common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.)
According to Tolentino, "Although the Code enumerates four classes, there are really only
two principal classes of substitutions: the simple and the fideicommissary. The others are
merely variations of these two." (111 Civil Code, p. 185 [1973].)

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or

transmission. The Supreme Court of Spain has decidedly adopted this construction. From
this point of view, there can be only one tranmission or substitution, and the substitute
need not be related to the first heir. Manresa, Morell and Sanchez Roman, however,
construe the word "degree" as generation, and the present Code has obviously followed
this interpretation. by providing that the substitution shall not go beyond one degree
"from the heir originally instituted." The Code thus clearly indicates that the second heir
must be related to and be one generation from the first heir.

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
ART. 859. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall comprise
the three mentioned in the preceding paragraph, unless the testator has otherwise
provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a second heir the
whole or part of inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally instituted, and
provided further that the fiduciary or first heir and the second heir are living at time of the
death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect of the
legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor
de sus respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal
entre ambos.
The appellants do not question the legality of the substitution so provided. The appellants
question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in
connection with the one-third usufruct over the estate given to the widow Marcelle
However, this question has become moot because as We have ruled above, the widow is
not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with
Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace
v. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda survived the
testator or stated differently because she did not predecease the testator. But dying
before the testator is not the only case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra.
Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are correct in
their claim that it is void for the following reasons:

From this, it follows that the fideicommissary can only be either a child or a parent of the
first heir. These are the only relatives who are one generation or degree from the fiduciary
(Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits
"that the testator contradicts the establishment of a fideicommissary substitution when he
permits the properties subject of the usufruct to be sold upon mutual agreement of the
usufructuaries and the naked owners." (Brief, p. 26.)
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of the estate in favor of Wanda
is void because it violates the constitutional prohibition against the acquisition of lands by
aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain in the Philippines. (Art. XIII.)
The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional provision which enables aliens to
acquire private lands does not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien would be able to circumvent the
prohibition by paying money to a Philippine landowner in exchange for a devise of a piece
of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a
usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the
vesting of title to land in favor of aliens which is proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered
distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked
ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of
Juan Pablo Jankowski and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.