NERI v.

AKUTIN
GR No.L-47799, May 21, 1943

Facts: Agripino Neri y Chavez, who died on December 12, 1931, had by his first
marriage six children named Eleuterio, Agripino, Agapito, Getulia, Rosario and
Celerina; and by his second marriage with Ignacia Akutin, five children named
Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter in the first
marriage, died on October 2, 1923, that is, a little less than eight years before the
death of said Agripino Neri y Chavez, and was survived by seven children named
Remedios, Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's
testament, which was admitted to probate on March 21, 1932, he willed that his
children by the first marriage shall have no longer any participation in his estate, as
they had already received their corresponding shares during his lifetime. At the
hearing for the declaration of heirs, the trial court found, contrary to what the
testator had declared in his will, that all his children by the first and second
marriages intestate heirs of the deceased without prejudice to one-half of the
improvements introduced in the properties during the existence of the last conjugal
partnership, which should belong to Ignacia Akutin.

Moreover, the land he had left behind for his children by the first marriage was
denied registration for it turned out to be a public land.

Issue: Whether the will should be cancelled in view of the omission of heirs.

Whether there is disinheritance in this case.

Held: 1) Yes. The Court annulled the institution of heirs and declared a total
intestacy on the ground that testator left all his property by universal title to the
children by his second marriage, without expressly disinheriting the children by his
first marriage but 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.

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.(Cf. 6
Manresa, 346.) In the instant case, while the children of the first marriage were
mentioned in the will, they were not accorded any share in the heriditary property,
without expressly being disinherited. It is, therefore, a clear case of preterition as
contended by appellants. The omission of the forced heirs or anyone of them,
whether voluntary or involuntary, is a preterition if the purpose to disinherit is not
expressly made or is not at least manifest.

2) NO. There is nothing in the will that supports this conclusion. True, the testator
expressly denied them any share in his estate; but the denial was predicated, not
upon the desire to disinherit, but upon the belief, mistaken though it was, that the
children by the first marriage had already received more than their corresponding
shares in his lifetime in the form of advancement. Such belief conclusively negatives
all inference as to any intention to disinherit, unless his statement to that effect is
prove to be deliberately fictitious, a fact not found by the Court of Appeals. The
situation contemplated in the above provision is one in which the purpose to
disinherit is clear, but upon a cause not stated or not proved, a situation which does
not obtain in the instant case. Disinheritance made without a statement of the
cause, if contested, shall annul the institution of heirs in so far as it is prejudicial to
the disinherited person. This is but a case of preterition which annuls the institution
of heirs.