[ G. R. No.
L-23445, June 23, 1966 ] On August 29, 1963, before a hearing was had on the
REMEDIOS NUGUID, PETITIONER AND
APPELLANT VS. FELIX NUGUID AND PAZ
SALONGA NUGUID, OPPOSITORS AND
APPELLEES.
DECISION
SANCHEZ, J.:
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 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.
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 intrinsic validity 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 nullity 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.
(Sgd.) Illegible
T/ ROSARIO NUOUID"
The statute we are called upon to apply is Article 854 of the
Civil Code which, in part, provides:
"Art. 854. The preteritlon 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; 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 -
"Art. 814. The preterition of one or all of the forced heirs in
the direct line, whether living at tbe 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 consists en omitir al heredero- en el
testamento. 0 no se le nombra siquiera, o aun nombrandole
como padre, hijo, etc., no se le instituye heradero ni se le
deshereda expresamente, ni se le asigna parte alguna de
los bienes, resultando privado de un raodo tacito de su
derecho a legitima.
Para que exista pretericitfn, con arreglo al articulo 814,
basta que en el testamento omita el tastador a uno
cualquiera de aquellos a quienes por su muerte corresponds
la herencia forssosa. 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."[5]
It may now appear trite but 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 vouid; In re
Morrow's Estate, 54 A. 342, 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:34-25). 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 aboli3h; 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 institucioin de heredero, dando caracter absoluto a este
ordenamlento", 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:
"En cuanto a la institucitin de heredero, se anula. Lo que se
anula deja de existir, en todo o en parte? No se anade
limitacion alguna, como en el artfculo 851, en el que se
expresa que se anulara la institucion de heredero en cuanto
perjudique a la legitlma del desheredado. Debe, pues,
entenderse que la anulacio'n es completa o total, y que este
artlculo como especial en el caso que le motiva. rige con
preferencia al 817." [10]
The same view is expressed by Sanchoz Roman:-
"La eonsecuencfa de la anulacifn 6 nulidad de- la institucidn
de heredero por pretericlin de uno, varios 6 todos los
forzosos en linea recta, es la apertura de la sucesidn
intestada, total 6 parcial. SerA total, cuando el testador que
comets la pretericiin, hubiere dispuesto de todos los bienes
por tltulo universal de herencia en favor de los herederos
institucion, cuya instituclon se anula, porque asi lo exige la
generalidad del precepto legal del art. 814, al determiner,
como efecto de la preterici6n, 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 nul-
lification 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, S&nchez RomSn cites the "Memoria annual del
Tribunal Supremo, correspondiente a 1908", which in our
opinion expresses the rule of interpretation, viz:
"*** El art. 814, que preceptiia en tales casos de preterici6n
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 6 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 6 supuesto, y consiguientemente,
en un testamento donde falte la institucion, es obllgado
llamar a los herederos forzosos en todo caso, como habrfa
que llamar a los de otra clase, cuando el testador no
hubiese distribufdo todos sus bienes en legados, siendo
tanto mas obllgada 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 constituirfa
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
razdn para modificar la ley, pero que 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
raz6n para convertir este juicio en regla de interpretaci6n,
desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer."[12]
3. We should not be led astray by the statement in
Article 854 that, annulment notwithstanding, "the
devisees 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, x x x todas aquellas otras disposiciones
que no se refieren a la institucidn de heredero
***".[13] As Manreea 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 donacidn."[14]
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 preterition and disinheritance.
Preterltlon "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." [16] Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of
his share in the legitime for a cause authorized by
law."[17] In Manresa's own words: "La privaciin expresa de la
legitima constituye la desheredacio'n. La privacio'n tacita de
la misma se denomina pretericion.'[18] Sanchez Roman
emphasizes the distinction by stating that disinheritance "es
siempre Yoluntarla": 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.
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," but
only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the ease 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, adquieren el derecho a todo; deshereda dos,
solo les corresponde un tercio o dos teroios,[22] segun el
caso."[23]
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 Koran in the Nerl case heretofore cited, viz:
"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.
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 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. *** 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.
Upon the view we take of this case, the order of November
8, 1963 under review is hereby affirmed. No costs allowed.
SO ORDERED.
 [ G. R. No. L-24365, June 30, 1966 ]
IN THE MATTER OF THE INTESTATE ESTATE OF
EDWARD E. CHRISTENSEN, DECEASED. ADOLFO
C. AZNAR, EXECUTOR AND APPELLEE, VS. MARIA
LUCY CHRISTENSEN DUNCAN, OPPOSITOR AND
APPELLANT, MARIA HELEN CHRISTENSEN,
OPPOSITOR AND APPELLEE.
DECISION
MAKALINTAL, J.:
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,
and who is now residing at No. 665 Rodger Young Village,
Los Angeles, California, U.S.A.
"4. I further declare that I now have ne living ascendants,
and no descendants except my above named daughter,
MARIA LUCY CHRISTENSEN DANEY.
*******
"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.'"
*******
"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 any time 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 (½) to ay
well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now
residing at No. 2124 Twentieth Street, Bakersfield,
California, U.S.A., and one-half (½) 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 Treviño,
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 preteritlon or omission of onet 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 preterit ion, 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 nay 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 legitlme,
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 devisee and
legacies and other testamentary dispositions shall be valid
to such extent as will not Impair the legitlme."
Thus, according to appellant, under both Articles 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 ignorancla o falta de memoria en el testador; on
el de dejar algo al heredero forzoso, no. Este no se
encuentra privado totalmente de su legitima; ha recibido
por cualquier titulo una porcion de los bienes hereditarios,
porcion que no alcanza a completar la legitima, pero que
influye poderosamente en el anlmo del legislador para
decidirle a adopter una solucion blen diferente de la
señalada 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 repartldo en favor de extrafios o en favor de
otros legieimarios por via de legado, donaclon o mejora
mayor cantldad de la que la ley le consentla disponer. El
heredero forzoso no puede perder su legit ima, pero
tarapoco puede pedlr mas que la misma. De aqul su
derecbo a reclamar solamente lo que le falta; el
conplemento de la porcion que forzosaaente le
corresponde."
"*** Dejar el testador por cualquler tltulo, equivale a
disponer en testamento por titulo de herencla, legado o
mejora, y en favor de legitimarios, de alguna cantldad o
porcion de bienes menor que la legitima o Igual a la misma.
Tal Sentido, que es el mas propio en el articulo 815, no
pugna tampoco con la doctrina de la ley. Cuando en el
testamento se deia algo al heredero forzoso. la preterlclon
es incomplete : es maa formularia que real. Cuando en el
te-stamento nada ae deja al legitimario, hay verdadera
preterlclon." (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 expreaa, es siempre voluntaria; la
pretericion puede serlo, pero se presume lnvoluntaria la
omlsion 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, presclndiendo
absoluta y totalmente de el y no mencionandole en ninguna
de aus disposicioneg tefltamentarlas, o no inatituyendole en
partealguna de la herencla. ni por titulo de heredero ni por
el de legatario aunque le mencionara o norabrara 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 pretericlon. aino de complement o de aquella. El primer
supuesto o de pretericion se regula por el artlculo 814, y
produce aceion de nulidad de la institucion de heredero; y el
segundo, o de complement; o de legitima, por el 815 y solo
origlna la ace ion ad suplementum, para completar
la legitima." (Sanches 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 omislon se refiera a uo
beredero forzoso; (b) Que la omision sea conr pleta; que el
heredero forzoso oada reciba en el testamento.
"B. Que la omieion sea completa Esta cendlclon se deduce
del mismo Articulo 814 y resulta con evldencia al relacionar
esce articulo con el 815. El heredero forzoso a quien el
testador deja algo por cualquler titulo en su testamento, no
se halla proplamente omitido, pues se le nombra y se le
reconoce participaclon en los bienes heredltarlos. Podria
dlscutlrse en el Articulo 814 si era o no necesarlo que se
reconoclese el derecho del heredero como tal heredero,
pero el articulo 815 desvaoece esta duda. Aquel se ocupa de
prlvaclon completa o total, taclta; este, de la prlvaclon
parcial. Los efectos deben ser y son, como veremos,
completamente distiotos." (6 Manresa pp. 428).
"La prlvaclon de la legitlma puede ser total o parclal. "Privar
totalmente de la legltlma es negarla en absoluto al
legltlmarlo, despojarle de ella por complete A este caso se
reflere el articulo 814. Prlvar parclalmente de la legitlma, es
manguarla o reduclrla, dejar al legltlmarlo una porcl6n
menor que la que le corresponde. A este caso se reflere el
articulo 815. El 813 slenta, pues, una regla general, y las
consecuencias del quebrantamiento de esta regla se
determlna en los artlculos 814 y 815." (6 Hanresa p. 418).
Again Sanchez Roman:
"QUE LA OMISION SEA TOTAL. — Aunque el articulo 814 no
consigns de modo expreso esta clrcunstancla de que la
preterlclon o falta de mencion e institucion o dlapoBicion
testamentaria a su favor, sea total, completa y absoluta, asl
se deduce de no hacer distlncion o salvedad alguna
empleandola en terminos generales; pexo sirve a
confirmarlo de un modo Indudable el sigulente articulo 815,
al deoir que el heredero forzoso a qulen el testador haya
dejado, por cualquier titulo, menos de la legitima que le
correspoada, podrlapedlr el complemento de la mlsma, lo
cual ya do son el caso ni los efectos de la ureterlclon. que
anula la institucion, sino simplemente los del 8uplemento
pecesarlo 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 ed. 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 815 of the Spanish Civil Code, which is now
Article 906 of our own Code. Sanchez Roman, in the citation
given above, comments as follows:
"RESPECTO DEL COMPLEMENTO BE LA LEGITIMA.- Se
inspira el Codigo en esta materia en la doctrlna clasica del
Derecho romano y patrio (2); pero con alguna racional
modificacion. Concedlan 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 favorecldo como donatario, porque
se atendia, no solo a la deficiencia de la cuantia de lo que se
le hubiere dejado por otro titulo que no fuera el de
heredero, sino al honor de aue se le privaba no dandole este
caracter. y solo cuando era instituido heredero en narte o
cantidad Inferior a lo que le correspondiera por legitima. era
cuando bastaba el elercicio 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 814 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
corregponda, y se le otorga tan solo el derecho de pedir
el complemento de la misma sin necesidad de que se anulen
las disposiciones testamentarlas, que se reduclran en lo que
sean inoficiosas, conforme al artlculo 817, cuya
interpretaclon y sentido tienen ya en su apoyo la saneion 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 disposition 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 donacion mortis causa en el testamento y
no fuera de el." (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 legltime, but without refer- ring 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. vs. 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 remanded with instructions to partitionthe hereditary estate
oppositor-appellee Helen Garcia, but left her a legacy of anew as indicated in this decision, that is, by giving to
P3,600.00. oppositor-appellee Maria Helen Christensen Garcia no more
than the portion corresponding to her as legitime,
The estate of the deceased Christensen upon his death equivalent to one-fourth (1/4) of the hereditary estate, after
consisted of 339 shares of stocks in the Christensen deducting all debts and charges, which shall not include
Plantation Company and a certain amount in cash. One- those imposed in the will of the decedent, In accordance
fourth (1/4) of said estate descended to Helen Garcia as her with Article 908 of the Civil Code. Costs against appellees in
legitime. Since she became the owner of her share as of the this instance.
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
 FIRST DIVISION
[ G.R. No. L-57848, June 19, 1982 ]
RAFAEL E. MANINANG AND SOLEDAD
L. MANINANG, PETITIONERS, VS. COURT OF
APPEALS, HON. RICARDO L. PRONOVE, JR., AS
JUDGE OF THE COURT OF FIRST INSTANCE OF
RIZAL AND BERNARDO S. ASENETA,
RESPONDENTS.
DECISION
MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April 28, 1981 of
respondent Appellate Court in CA-G.R. No. 12032-R entitled
"Rafael E. Maninang and Soledad L. Maninang vs Hon.
Ricardo Pronove, Judge of the Court of First Instance of
Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".
Pertinent to the controversy are the following antecedental
facts:
On May 21, 1977, Clemencia Aseneta, single, died at the
Manila Sanitarium Hospital at age 81. She left a
holographic will, the pertinent portions of which are quoted
hereunder:
"x x x
"It is my will that all my real properties located in Manila,
Makati, Quezon City, Albay and Legaspi City and all my
personal properties shall be inherited upon my death by
Dra. Soledad L. Maninang with whose family I have lived
continuously for around the last 30 years
now. Dra. Maninang and her husband Pamping have been
kind to me. x x x I have found peace and happiness with
them even during the time when my sisters were still alive
and especially now when I am now being troubled by my
nephew Bernardo and niece Salvacion. I am not
incompetent as Nonoy would like me to appear. I know
what is right and wrong. I can decide for myself. I do not
consider Nonoy as my adopted son. He has made me do
things against my will."
"x x x"
On June 9, 1977, petitioner Soledad Maninang filed a
Petition for probate of the Will of the decedent with the
Court of First Instance-Branch IV, Quezon City (Sp. Proc.
No. Q-23304, hereinafter referred to as the Testate Case).
On July 25, 1977, herein respondent Bernardo Aseneta,
who, as the adopted son, claims to be the sole heir of
decedent Clemencia Aseneta, instituted intestate
proceedings with the Court of First Instance-Branch XI,
Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter the
Intestate Case, for brevity).
On December 23, 1977, the Testate and Intestate Cases
were ordered consolidated before Branch XI, presided by re-
spondent Judge.
Respondent Bernardo then filed a Motion to Dismiss the
Testate Case on the ground that the holographic will was
null and void because he, as the only compulsory heir, was
preterited and, therefore, intestacy should ensue. In
support of said Motion to Dismiss, respondent Bernardo
cited the cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs.
Nuguid (17 SCRA 449), and Ramos vs. Baldovino
(2 CA Rep. 2nd, 878).[1]
In her Opposition to said Motion to Dismiss, petitioner
Soledad averred that it is still the rule that in a case for
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; and that respondent Bernardo was effectively
disinherited by the decedent.[2]
On September 8, 1980, the lower Court ordered the
dismissal of the Testate Case in this wise:
"For reasons stated in the motion to dismiss filed by
petitioner Bernardo S. Aseneta which the Court finds
meritorious, the petition for probate of will filed by Soledad
L. Maninang and which was docketed as Sp. Proc. No. Q-
23304 is DISMISSED, without pronouncement as to costs."
On December 19, 1980, the lower Court denied
reconsideration for lack of merit and in the same Order
appointed Bernardo as the administrator of the intestate
estate of the deceased Clemencia Aseneta "considering that
he is a forced heir of said deceased while oppositor
Soledad Maninang is not, and considering further that
Bernardo Aseneta has not been shown to be unfit to
perform the duties of the trust."
Petitioners Maninang resorted to a Certiorari Petition before
respondent Court of Appeals alleging that the lower Court
exceeded its jurisdiction in issuing the Orders of dismissal of
the Testate Case (September 8, 1980) and denial of
reconsideration (December 19, 1980).
On April 28, 1981, respondent Court[3] denied Certiorari and
ruled that the trial Judge's Order of dismissal was final in
nature as it finally disposed of the Testate Case and,
therefore, appeal was the proper remedy, which petitioners
failed to avail of. Continuing, it said that even granting that
the lower Court committed errors in issuing the questioned
Orders, those are errors of judgment reviewable only by
appeal and not by Certiorari.
Thus, this Petition before us.
We find that the Court a quo acted in excess of its juris-
diction when it dismissed the Testate Case. Generally, the
probate of a Will is mandatory.
"No will shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules of
Court."[4]
The law enjoins the probate of the Will and public policy
requires it, because unless the Will is probated and notice
thereof given to the whole world, the right of a person to
dispose of his property by Will may be rendered nugatory. [5]
Normally, the probate of a Will does not look into its
intrinsic validity.
"x x x The authentication of a will decides no other question
than such as touch upon the capacity of the testator and the
compliance with those requisites or solemnities which the
law prescribes for the validity of wills. It does not
determine nor even by implication prejudge the validity or
efficiency (sic) of the provisions, these may be impugned as
being vicious or null, notwithstanding its
authentication. The questions relating to these points
remain entirely unaffected, and may be raised even after
the will has been authenticated x x x"[6]
"Opposition to the intrinsic validity or legality of the
provisions of the will cannot be entertained in Probate
proceeding because its only purpose is merely to determine
if the will has been executed in accordance with the
requirements of the law."[7]
Respondent Bernardo, however, relies on the pronounce-
ment in Nuguid vs. Nuguid[8], reading:
"In a proceeding 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 prescribed by law. The
intrinsic validity of the will normally comes only after the
court has declared that the will has been duly
authenticated. However, where practical considerations
demand that the intrinsic validity of the will be passed upon,
even before it is probated, the Court should meet that
issue. (Underscoring supplied)
Our ruling in Balanay vs. Hon. Martinez[9] had a similar
thrust:
"The trial court acted correctly in passing upon the will's
intrinsic validity even before its formal validity had been
established. The probate of a will might become an idle
ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue."
The Nuguid and the Balanay cases provide the exception
rather than the rule. The intrinsic validity of the Wills in
those cases was passed upon even before probate because
"practical considerations" so demanded. Moreover, for the
parties in the Nuguid case, the "meat of the controversy"
was the intrinsic validity of the Will; in fact, the parties in
that case "shunted aside the question of whether or not the
Will should be allowed probate." Not so in the case before
us now where the probate of the Will is insisted on by
petitioners and a resolution on the extrinsic validity of the
Will demanded.
Moreover, in the Nuguid case, this Court ruled that the Will
was intrinsically invalid as it completely preterited the
parents of the testator. In the instant case, a crucial issue
that calls for resolution is whether under the terms of the
decedent's Will, private respondent had been preterited or
disinherited, and if the latter, whether it was a valid
disinheritance. Preterition and disinheritance are two
diverse concepts.
"x x x 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.' (Neri vs. Akutin, 72 Phil. 325). Disinheritance,
in turn, 'is a testamentary disposition depriving any
compulsory heir of his share in the legitime for a cause
authorized by law.' (Justice J.B.L. Reyes and R.C. Puno, 'An
Outline of Philippine Civil Law', 1956 ed., Vol. III, p. 8,
citing cases) Disinheritance is always 'voluntary';
preterition, upon the other hand, is presumed to be 'in-
voluntary' (Sanchez Roman, Estudios de Derecho Civil 2nd
edition, Volumen 2.o, p. 1131)."[10]
The effects of preterition and disinheritance are also totally
different.
"x x x The effects flowing from preterition are totally
different from those of disinheritance. Preterition under
Article 854 of the New Civil Code '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 September 8, 1980 and December 19, 1980, are
'annul the institution of heirs', but only 'insofar as it may nullified. Special Proceeding No. Q-23304 is hereby
prejudice the person disinherited', which last phrase was remanded to said Court of First Instance-Branch XI, Rizal,
omitted in the case of preterition (III Tolentino, Civil Code therein to be reinstated and consolidated with Special
of the Philippines, 1961 Edition, p. 172). Better stated yet, Proceeding No. 8569 for further proceedings.
in disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally No pronouncement as to costs.
deprived."[11]
SO ORDERED.
By virtue of the dismissal of the Testate Case, the
determination of that controversial issue has not been
thoroughly considered. We gather from the assailed Order
of the trial Court that its conclusion was that respondent
Bernardo has been preterited. We are of opinion, however,
that from the face of the Will, that conclusion is not
indubitable.

As held in the case of Vda. de Precilla vs. Narciso[12].

"x x x it is as important a matter of public interest that a

purported will is not denied legalization on dubious
grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation. x x x"

Coming now to the procedural aspect, suffice it to state that

in view of our finding that respondent Judge had acted in
excess of his jurisdiction in dismissing the Testate Case,
Certiorari is a proper remedy. An act done by a Probate
Court in excess of its jurisdiction may be corrected by
Certiorari.[13]And even assuming the existence of the
remedy of appeal, we harken 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.

WHEREFORE, the Decision in question is set aside and the

Orders of the Court of First Instance-Branch XI, Rizal, dated
 FIRST DIVISION
[ G.R. No. L-41971, November 29, 1983 ]
ZONIA ANA T. SOLANO, PETITIONER, VS. THE
COURT OF APPEALS, BIENVENIDO S. GARCIA,
AND EMETERIA S. GARCIA, RESPONDENTS.
DECISION
MELENCIO-HERRERA, J.:
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:
"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 tight of any
creditors of the estate. No pronouncement as to costs."
Appealed to the Court of Appeals by ZONIA, said Court af-
firmed the judgment in toto (CA-G.R. No. 49018).
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, 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 Una 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:
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.
II.
"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 Solanobetween the
petitioner and private respondents, when said estate is
under the jurisdiction and control of the probate Court in
Special Proceedings No. 842.
III
"The Court of Appeals, as well as the trial Court, acted
without jurisdiction or in excess of jurisdiction in declaring
null and void the institution of heir in the last will and tes-
tament 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 therefrom."[3]
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 Will 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 x x x as of now"[4] In her "Appearance of Substitute
Defendant Zonia Ana T. Solano x x x Sole and Universal Heir",
ZONIA specifically prayed that she be "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 x x x and
Supplemental Cause of Action x x x " 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, preterited 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.
"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.
x x x "[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 [9], and 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 preterition 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 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 (½)
portion of the property that the testator could freely dispose
of.[12]Since the legitime of illegitimate children consists of one-
half (½) 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 preterition,
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 WHEREFORE, the judgment under review is hereby
Court declared: modified in that the hereditary share in the estate of the
decedent of petitioner Zonia Ana T. Solano is hereby declared
"The disputed order, we observe, declares the will in
to be (1/2 + (1/3 of 1/2) or 4/6 of said estate, while that of private
question a complete nullity. Article 854 of the Civil Code in
respondents, Bienvenido S. Garcia and Emeteria S. Garcia,
turn merely nullifies 'the institution of heir'. Considering, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in
however, that the will before us solely provides for the favor of Trinidad Tuagnon shall be respected. The judgment is
institution of petitioner as universal heir, and nothing more, affirmed in all other respects.
the result is the same. The entire will is null." (at p. 459)
No costs.
In contrast, in the case at bar, there is a specific bequest or
legacy so that Article 854 of the Civil Code, supra, applies SO ORDERED.
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 , on this point, declared:
[16]

"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."
 [ G.R. No. 20374, October 11, 1923 ]
IN RE WILL OF DOLORES CORONEL, DECEASED.
LORENZO PECSON, APPLICANT AND
APPELLEE, VS. AGUSTIN CORONEL ET AL.,
OPPONENTS AND APPELLANTS.
DECISION
ROMUALDEZ, J.:
On November 28, 1922, the Court of First Instance of
Pampanga probated as the last will and testament of
Dolores Coronel, the document Exhibit A, which translated is
as follows:
"In the name of God, Amen:
"I, Dolores Coronel, resident of Betis, Guagua, Pampanga,
Philippine Islands, in the full exercise of my mental
faculties, do hereby make my last will and testament, and
revoke all former wills by me executed.
"I direct and order that my body be buried in conformity
with my social standing.
"That having no forced heirs, I will all my properties, both
movable and immovable, to my nephew, Lorenzo Pecson,
who is married to my niece Angela Coronel, in consideration
of the good services which he has rendered, and is
rendering to me with good will and disinterestedness and to
my full satisfaction.
"I name and appoint my aforesaid nephew, Lorenzo Pecson,
executor of all that is willed and ordained in this my will,
without bond. Should he not be able to discharge his duties
as such executor for any reason whatsoever, I name and
appoint as substitute executor my grandson Victor Pecson, a
native and resident of the town of Betis, without requiring
him to give bond.
"All my real and paraphernal property as well as my credits,
for I declare that I have no debts, are specified in an
inventory.
"In testimony whereof and as I do not know how to write
my name, I have requested Vicente J. Francisco to write my
name at the foot hereof and on the left margin of each of its
sheets before me and all the undersigned witnesses this
July 1, 1918.
"VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
"The foregoing document was executed and declared by
Dolores Coronel to be her last will and testament in our
presence, and as the testatrix does not know how to write
her name, she requested Vicente J. Francisco to sign her
name under her express direction in our presence, at the
foot, and on the left margin of each and every sheet,
hereof. In testimony whereof, each of us signed these
presents in the presence of others and of the testatrix at the
foot hereof and on the margin of each and everyone of the
two sheets of which this document is composed, which are
numbered "one" and "two" on the upper part of the face
thereof.
 (Sgd.) "MAXIMO VERGARA widow of the deceased Hipolito Coronel, in her own behalf
and that of her three children, Generosa, Maria, and Jose,
SOTERO DUMAUAL all minors, Rosario Coronel, Agustin Coronel,
Filomeno Coronel, Casimiro Coronel, Alejo Coronel,
MARCOS DE LOS Maria Coronel, Severina Coronel, Serapia Coronel, Maria
Juana de Ocampo, widow of the deceased Manuel Coronel,
SANTOS
Dionisia Coronel, and her husband Pantaleon Gunlao.
MARIANO L.
The probate of this will is impugned on the following
CRISOSTOMO
grounds: (a) That the proof does not show that the
document Exhibit A above copied contains the last will of
PABLO BARTOLOME Dolores Coronel, and (b) that the attestation clause is not in
accordance with the provisions of section 618 of the Code of
MARCOS DE LA Civil Procedure, as amended by Act No. 2645.
CRUZ
These are the two principal questions which are debated in
DAMIAN this case and which we will now examine separately.
CRISOSTOMO
As to the first, which is the one raised in the first
assignment of error, the appellants argue: First, that it was
"On the left margin of the two sheets of the will the improbable and exceptional that Dolores Coronel should
following signatures also appear: dispose of her estate, as set forth in the document Exhibit
A, her true will being that the same be distributed among
"Mariano L. Crisostomo, Vicente J. Francisco for the testatrix her blood relatives; and second, that if such will was not
Dolores Coronel, M. Vergara, Pablo Bartolome, Sotero expressed in fact, it was due to extraneous illegal influence.
Dumaual, Damian Crisostomo, Marcos de la Cruz, Marcos de
los Santos." Let us examine the first point.

The petitioner for the probate of the will is Lorenzo Pecson,
husband of Angela Coronel, who is a niece of the deceased
Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian
Gozum, Cirila Santiago, widow of the deceased Macario
Gozum, in her own behalf and that of her three minor
children, Hilarion Coronel, Geronimo Coronel,
Maria Coronel and her husband Eladio Gongco, Juana Bituin,
The opponents contend that it was not, nor could it be, the
will of the testatrix, because it is not natural nor usual that
she should completely exclude her blood relatives from her
vast estate, in order to will the same to one who is only a
relative by affinity, there appearing no sufficient motive for
such exclusion, inasmuch as until the death of
Dolores Coronel, she maintained very cordial relations with
the aforesaid relatives who had helped her in the
management and direction of her lands. It appears,
however, from the testimony of Attorney Francisco (page
71, transcript of the stenographic notes) that
Dolores Coronel revealed to him her suspicion against some
of her nephews as having been accomplices in a robbery of
which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to
Dolores Coronel, the opponents admit that he rendered
them at least from the year 1914, although there is proof
showing that he rendered such services long before that
time.
The appellants emphasize the fact that family ties in this
country are very strongly knit and that the exclusion of
relative from one's estate is an exceptional case. It is true
that the ties of relationship in the Philippines are very
strong, but we understand that cases of preterition of
relatives from the inheritance are not rare. The liberty to
dispose of one's estate by will when there are no forced
heirs is rendered sacred by the Civil Code in force in the
Philippines since 1889. It is so provided in the first
paragraph of article 763 in the following terms:
"Any person who has no forced heirs may dispose by will of
all his property or any part of it in favor of any person
qualified to acquire it."
Even ignoring the precedents of this legal precept, the Code
embodying it has been in force in the Philippines for more
than a quarter of a century, and for this reason it is not
tenable to say that the exercise of the liberty thereby
granted is necessarily exceptional, where it is not shown
that the inhabitants of this country whose customs must
have been taken into consideration by the legislator in
adopting this legal precept, are averse to such a liberty.
As to the preference given to Lorenzo Pecson, it is not
purely arbitrary, nor a caprice or a whim of the moment.
The proof adduced by this appellee, although contradicted,
shows by a preponderance of evidence that besides the
services which the opponents admit had been rendered by
him to Dolores Coronel since the year 1914, he had also
rendered services prior to that time and was the
administrator and manager of the affairs of said Dolores in
the last years of her life. And that this was not a whim of
the moment is shown by the fact that six years before the
execution of the will in question, said Lorenzo Pecson was
named and appointed by Dolores Coronel as her sole heir in
the document Exhibit B, which, translated, is as follows:
"1. That my present property was acquired by me by
inheritance from my parents, but a great part thereof was
acquired by me by my own efforts and exertions;
"2. That I have made no inventory of my properties, but
they can be seen in the title deeds in my possession and in
the declarations of ownership;
"3. That I institute Lorenzo Pecson, married to
Angela Coronel, and a known resident of the town, my heir
to succeed to all my properties;
"4. That I appoint my said heir, Lorenzo Pecson, as
executor, and, in his default, Victor Pecson, a resident of
the same town;
"5. That as to my burial and other things connected with the
eternal rest of my soul, I leave them to the sound discretion
of the aforesaid Lorenzo Pecson;
"6. That as I cannot write I requested Martin Pangilinan, a
native and resident of this town, to write this will in
accordance with my wishes and precise instructions.
"In testimony whereof I had the said Martin Pangilinan write
my name and surname, and affixed my mark between my
name and surname, and Don Francisco Dumaual, Don
Mariano Sunglao, Don Sotero Dumaual, Don Marcos de la
Cruz and Don Martin Pangilinan signed as witnesses, they
having been present at the beginning of, during, and after,
the execution of this my last will.
(Sgd.)
"DOLORES CORONEL
Witnesses:
(Sgd.) "MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"
The appellants find in the testament Exhibit B something to
support their contention that the intention of
Dolores Coronel was to institute the said Pecson not as sole
beneficiary, but simply as executor and distributor of all her
estate among her heirs, for while Lorenzo Pecson's
contention that he was appointed sole beneficiary is based
on tho fact that he enjoyed the confidence of
Dolores Coronel in 1918 and administered all her property,
he did not exclusively have this confidence and
administration in the year 1912. Although such
administration and confidence were enjoyed
by Pecson always jointly with others and never exclusively,
this fact does not show that the will of the testatrix was to
appoint Pecson only as executor and distributor of her
estate among the heirs, nor does it prevent her, the
testatrix, from instituting him in 1912 or 1918 as sole
beneficiary; nor does it constitute, lastly, a test for
determining whether or not such institution in favor
of Pecson was the true will of the testatrix.
We find, therefore, nothing strange in the preterition made
by Dolores Coronel of her blood relatives, nor in the
designation of Lorenzo Pecson as her sole beneficiary.
Furthermore, although the institution of the beneficiary here
would not seem the most usual and customary, still this
would not be null per se.
"In the absence of any statutory restriction every person
possesses absolute dominion over his property, and may
bestow it upon whomsoever he pleases without regard to
natural or legal claim upon his bounty. If the testator
possesses the requisite capacity to make a will, and the
disposition of his property is not affected by fraud or undue
influence, the will is not rendered invalid by the fact that it
is unnatural, unreasonable, or unjust. Nothing can prevent
the testator from making a will as eccentric, as injudicious,
or as unjust as caprice, frivolity, or revenge can dictate.
However, as has already been shown, the unreasonableness
or injustice of a will may be considered on the question of
testamentary capacity." (40 Cyc., 1079.)
The testamentary capacity of Dolores Coronel is not
disputed in this case.
Passing to the second question, to wit, whether or not the
true last will of Dolores Coronel was expressed in the
testament Exhibit A, we will begin with expounding how the
idea of making the aforesaid will here controverted was
borne and carried out.
About the year 1916 or 1917, Dolores Coronel showed the
document Exhibit B to Attorney Francisco who was then her
legal adviser and who, considering that in order to make the
expression of her last will more legally valid, thought it
necessary that the testament be prepared in conformity
with the laws in force at the time of the death of the
testatrix, and observing that the will Exhibit B lacked the
extrinsic formalities required by Act No. 2645 enacted after
its execution, advised Dolores Coronel that the will be
remade. She followed the advice, and Attorney Francisco,
after receiving her instructions, drew the will Exhibit A in
accordance therewith, and brought it to the house of
DoloresCoronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her
presence and that of the witnesses and asked her whether
the will was in accordance with her wishes.
Dolores Coronelanswered that it was, and requested her
attorney, Mr. Francisco, to sign the will for her, which the
attorney accordingly did in the presence of the witnesses,
who in turn signed it before the testatrix and in the
presence of each other.
Upon the filing of the motion for a rehearing on the first
order allowing the probate of the will, the opponents
presented an affidavit of Pablo Bartolome to the effect that,
following instructions of Lorenzo Pecson, he had informed
the testatrix that the contents of the will were that she
entrusted Pecson with the distribution of all her property
among the relatives of the said Dolores. But during the new
trial Pablo Bartolome, in spite of being present in the court
room on the day of the trial, was not introduced as a
witness, without such an omission having been satisfactorily
accounted for.
While it is true that the petitioner was bound to present
Pablo Bartolome, being one of the witnesses who signed the
will, at the second hearing when the probate was
controverted, yet we cannot consider this point against the
appellee for this was not raised in any of the assignments of
error made by the appellants. (Art. 20, Rules of the
Supreme Court.)
On the other hand, it was incumbent upon the opponents to
present Pablo Bartolome to prove before the court the
statement made by him in his affidavit, since it was their
duty to prove what they alleged, which was that
Dolores Coronel had not understood the true contents of the
will Exhibit A. Having suppressed, without explanation, the
testimony of Pablo Bartolome, the presumption is against
the opponents and that is, that such a testimony would
have been adverse had it been produced at the hearing of
the case before the court. (Sec. 334, subsec. 5, Code of
Civil Procedure.)
The opponents call our attention to the fourth clause of the
document which says: "I name and appoint my aforesaid
nephew, Lorenzo Pecson, executor of all that is willed and
ordained in this my will, without bond. Should he not be
able to discharge his duties as such executor for any reason
whatsoever, I name and appoint as a substitute executor
my grandson Victor Pecson, resident of the town of Betis,
without requiring him to give bond," and contend that this
clause is repugnant to the institution of Lorenzo Pecson as
sole beneficiary of all her estate, for if such was the
intention of the testatrix, there would have been no
necessity of appointing an executor, nor any reason for
designating a substitute in case that the first one should not
be able to discharge his duties, and they perceived in this
clause the idea which, according to them, was not
expressed in the document, and which was that Pecson was
simply to be a mere executor entrusted with the distribution
of the estate among the relatives of the testatrix, and that
should he not be able to do so, this duty would devolve
upon his substitute.
But it is not the sole duty of an executor to distribute the
estate, which in testate succession, such as the instant
case, has to be distributed with the intervention of the
court. An executor has, besides, other duties and general
and special powers intended for the preservation, defense,
and liquidation of the estate so long as the same has not
reached, by order of the court, the hands of those entitled
thereto.
The fact that Dolores Coronel foresaw the necessity of an
executor does not imply a negation of her desire to will all
her estate to Lorenzo Pecson. It is to be noted, furthermore,
that in the will, it was ordered that her body be given a
burial in accordance with her social standing and she had a
perfect right to designate a person who should see to it that
this order was complied with. One of the functions of an
executor is the fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her
estate to her blood relatives, for such was the promise
made to Maria Coronel, whom Rosario Coronel tends to
corroborate. We do not find such a promise to have been
sufficiently proven, and much less to have been seriously
made and coupled with a positive intention on the part of
Dolores Coronel to fulfill the same. In the absence of
sufficient proof of fraud, or undue influence, we cannot take
such a promise into account, for even if such a promise was
in fact made, Dolores Coronel could retract or forget it
afterwards and dispose of her estate as she pleased. Wills
themselves, which contain more than mere promises, are
essentially revocable.
It is said that the true will of Dolores Coronel not expressed
in the will can be inferred from the phrase used by Jose M.
Reyes in his deposition when speaking of the purpose for
which Lorenzo Pecson was to receive the estate, to wit:
"in order that the latter might dispose of the estate in the
most appropriate manner."
Weight is given to this phrase from the circumstance that its
author was requested by Attorney Francisco to explain the
contents of Exhibit B and had acted as interpreter between
Dolores Coronel and Attorney Francisco at their interviews
previous to the preparation of Exhibit A, and had translated
into the Pampango dialect this last document, and, lastly,
was present at the execution of the will in question.
The disputed phrase "in order that the latter might dispose
of the estate in the most appropriate manner" was used by
the witness Reyes while sick in a hospital and testifying in
the course of the taking of his deposition.
The appellants interpret the expression "dispose in the most
appropriate manner" as meaning to say "distribute it among
the heirs." Limiting ourselves to its meaning, the expression
is a broad one, for the disposition may be effected in several
and various ways, which may not necessarily be a
"distribution among the heirs," and still be a "disposition in
the most appropriate manner." "To dispose" is not the same
as "to distribute."
To judge correctly the import of this phrase, the
circumstances under which it was used must be taken into
account in this particular instance. The witness Reyes, the
author of the phrase, was not expressing his own original
ideas when he used it, but was translating into Spanish
what Dolores Coronel had told him. According to the facts,
the said witness is not a Spaniard, that is to say, the
Spanish language is not his native tongue, but, perhaps, the
Pampango dialect. It is an admitted fact based on reason
and experience that when a person translates from one
language to another, it is easier for him to express with
precision and accuracy when the version is from a foreign
language to a native one than vice-versa. The witness
Reyes translated from the Pampango dialect, which must be
more familiar to him, to the Spanish language which is not
his own tongue. And judging from the language used by him
during his testimony in this case, it cannot be said that this
witness masters the Spanish language. Thus is explained
the fact that when asked to give the reason for the
appointment of an executor in the will, he should say at the
morning session that "Dolores Coronel did appoint Don
Lorenzo Pecson and in his default, Victor Pecson, to act
during her lifetime, but not after her death," which was
explained at the afternoon session by saying "that
Dolores Coronel did appoint Don Lorenzo Pecson executor of
all her estate during his lifetime and that in his default,
either through death or incapacity, Mr. Victor Pecson was
appointed executor." Taking into account all the
circumstances of this witness, there is ground to attribute
his inaccuracy as to the discharge of the duties of an
executor, not to ignorance of the elementary rule of law on
the matter, for the practice of which he was qualified, but to
a non-mastery of the Spanish language. We find in this
detail of translation made by the witness Reyes no sufficient
reason to believe that the will expressed by
Dolores Coronel at the said interview with Attorney
Francisco was to appoint Lorenzo Pecson executor and mere
distributor of her estate among her heirs.
As to whether or not the burden of proof was on the
petitioner to establish that he was the sole legatee to the
exclusion of the relatives of Dolores Coronel, we understand
that it was not his duty to show the reasons which the
testatrix may have had for excluding her relatives from her
estate, giving preference to him. His duty was to prove that
the will was voluntary and authentic and he, who alleges
that the estate was willed to another, has the burden of
proving his allegation.
Attorney Francisco is charged with having employed
improper means for making Lorenzo Pecson appear in the
will as sole beneficiary. However, after an examination of all
the proceedings had, we cannot find anything in the
behavior of this lawyer, relative to the preparation and
execution of the will, that would justify an unfavorable
conclusion as to his personal and professional conduct, nor
that he should harbor any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising
Dolores Coronel to make a new will other than the last one,
Exhibit B (in the drawing of which he does not appear to
have intervened), so that the instrument might be executed
with all the new formalities required by the laws then in
force; nor in the preparation of the new will substantially in
accordance with the old one; nor in the selection of
attesting witnesses who were persons other than the
relatives of Dolores Coronel. Knowing, as he did, that
Dolores Coronelwas excluding her blood relatives from the
inheritance, in spite of her having been asked by him
whether their exclusion was due to a mere inadvertence,
there is a satisfactory explanation, compatible with
honorable conduct, why said attorney should prescind from
such relatives in the attesting of the will, to the end that no
obstacle be placed in the way to the probating thereof.
The fact that this attorney should presume that Dolores was
to ask him to sign the will for her and that he should
prepare it containing this detail is not in itself fraudulent.
There was in this case reason so to presume, and it appears
that he asked her, through Pablo Bartolome, whom she
wanted to sign the document in her stead.
No imputation can be made to this attorney of any interest
in favoring Lorenzo Pecson in the will, because the latter
was already his client at the execution of said will. Attorney
Francisco denied this fact, which we cannot consider proven
after examining the evidence.
The conduct observed by this attorney after the death of
Dolores Coronel in connection with the attempted
arrangement between Lorenzo Pecson and the opponents,
does not, in our opinion, constitute any data leading to the
conclusion that an heir different from the true one intended
by the testatrix should have been fraudulently made to
appear instituted in the will Exhibit A. His attitude towards
the opponents, as can be gathered from the proceedings
and especially from his letter Exhibit D, does not show any
perverse or fraudulent intent, but rather a conciliatory
purpose. It is said that such a step was well calculated to
prevent every possible opposition to the probate of the will.
Even admitting that one of his objects in entering into such
negotiations was to avoid every possible opposition to the
probate of the will, such object is not incompatible with
good faith, nor does it necessarily justify the inference that
the heir instituted in the instrument was not the one whom
the testatrix wanted appointed.
The appellants find rather suspicious the interest shown by
the said attorney in trying to persuade Lorenzo Pecson to
give them some share of the estate. These negotiations
were not carried out by the attorney out of his own
initiative, but at the instance of the same opponent,
Agustin Coronel, made by the latter in his own behalf and
that of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient
proof to believe that he should have tried, through fraud or
any undue influence, to frustrate the alleged intention of the
testatrix to leave her estate to her blood relatives. The
opponents insinuate that Lorenzo Pecson employed Attorney
Francisco to carry out his reproachable designs, but such
depraved instrumentality was not proven, nor was it shown
that said lawyer, or Lorenzo Pecson, should have contrived
or put into execution any condemnable plan, nor that both
should have conspired for illegal purposes at the time of the
preparation and execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the
will was being read to Dolores Coronel, the provision
whereby the estate was ordered distributed among the
heirs, the preponderance of the evidence is to the effect
that said Norberto Paras was not present at such reading of
the will. Appellants do not insist on the probative force of
the testimony of this witness, and do not oppose its being
stricken out.
The data furnished by the case do not show, to our mind,
that Dolores Coronel should have had the intention of giving
her estate to her blood relatives instead of to
Lorenzo Pecson at the time of the execution of the will
Exhibit A, nor that fraud or whatever other illegal cause or
undue influence should have intervened in the execution of
said testament. Neither fraud nor evil is presumed and the
record does not show either.
Turning to the second assignment of error, which is made to
consist in the will having been probated in spite of the fact
that the attestation clause was not in conformity with the
provision of section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, let us examine the tenor of such
clause which literally is as follows:
"The foregoing document was executed and declared by
Dolores Coronel to be her last will and testament in our
presence, and as the testatrix does not know how to write
her name, she requested Vicente J. Francisco to sign her
name under her express direction in our presence at the
foot and on the left margin of each and every sheet hereof.
In testimony whereof, each of us signed these presents in
the presence of others and of the testatrix at the foot hereof
and on the margin of each and everyone of the two pages of
which this document is composed. These sheets are
numbered correlatively with the words "one" and "two" on
the upper part of the face thereof.
(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los
Santos, Mariano L. Crisostomo, Pablo Bartolome, Marcos de
la Cruz, Damian Crisostomo."
Appellants remark that it is not stated in this clause that the
will was signed by the witnesses in the presence of the
testatrix and of each other, as required by section 618 of
the Code of Civil Procedure, as amended, which on this
particular point provides the following:
"The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other."
Stress is laid on the phrase used in the attestation clause
above copied, to wit:
"each of us signed in the presence of others."
Two interpretations can absolutely be given here to the
expression "of others." One, that insinuated by the
appellants, namely, that it is equivalent to "of other
persons," and the other, that contended by the appellee, to
wit, that the phrase should be held to mean "of the others,"
the article "the" having inadvertently been omitted.
Should the first interpretation prevail and "other persons"
be taken to mean persons different from the attesting
witnesses, then one of the solemnities required by law
would be lacking. Should the second be adopted and "of
others" construed as meaning the other witnesses to the
will, then the law would have been complied with in this
respect.
Including the concomitant words, the controverted phrase
results thus: "each of us signed these presents in the
presence of others and of the testatrix."
If we should omit the words "of others and," the expression
would be reduced to "each of us signed these presents in
the presence of the testatrix," and the statement that the
witnesses signed each in the presence of the others would
be lacking. But as a matter of fact, these words "of others
and" are present. Then, what for are they there? Is it to say
that the witnesses signed in the presence of other persons
foreign to the execution of the will, which is completely
useless and to no purpose in the case, or was it for some
useful, rational, necessary object, such as that of making it
appear that the witnesses signed the will each in the
presence of the others? The first theory presupposes that
the one who drew the will, who is Attorney Francisco, was
an unreasonable man, which is an inadmissible hypothesis,
being repugnant to the facts shown by the record. The
second theory is the most obvious, logical and reasonable
under the circumstances. It is true that the expression
proved to be deficient. The deficiency may have been
caused by the drawer of the will or by the typist. If by the
typist, then it must be presumed to have been merely
accidental. If by the drawer, it is explainable taking into
account that Spanish is not only not the native language of
the Filipinos, who, in general, still speak until nowadays
their own dialects, but also that such a language is not even
the only official language since several years ago.
In Re will of Abangan (40 Phil., 476), this court said:
"The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee
their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make
a will. So when an interpretation already given assures such
ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will, must be
disregarded."
We believe it to be more reasonable to construe the
disputed phrase "of others" as meaning "of the other
witnesses," and that a grammatical or clerical error was
committed consisting in the omission of the article "the."
Grammatical or clerical errors are not usually considered of
vital importance when the intention is manifest in the will.
"The court may correct clerical mistakes in writing, and
disregard technical rules of grammar as to the construction
of the language of the will when itr becomes necessary for it
to do so in order to effectuate the testator's manifest
intention as ascertained from the context of the will. But
unless a different construction is so required the ordinary
rules of grammar should be adhered to in construing the
will." (40 Cyc., 1404).
And we understand that in the present case the
interpretation we adopt is imperative, being the most
adequate and reasonable.
The case of In the matter of the estate of Geronima Uy
Goque (43 Phil., 405), decided by this court and invoked by
the appellants, refers, so far as pertinent to the point herein
at issue, to an attestation clause wherein the statement that
the witnesses signed the will in the presence of each other
is totally absent. In the case at bar, there is the expression
"in the presence of others" whose reasonable interpretation
is, as we have said, "in the presence of the other
witnesses." We do not find any parity between the present
case and that of Re estate of Geronima Uy Coque above
cited.
Finally, we will take up the question submitted by the
opponents as to the alleged insufficiency of the evidence to
show that the attesting witnesses Damian Crisostomo and
Sotero Dumaual were present at the execution of the will in
controversy. Although this point is raised in the first
assignment of error made by the appellants, and not in the
second, it is discussed in this place, because it refers to the
very fact of attestation. However, we do not believe it
necessary to analyze in detail the evidence of both parties
on this particular point. The evidence leads us to the
conclusion that the two witnesses aforementioned were
present at the execution and signing of the will. Such is also
the conclusion of the trial judge who, in this respect, states
the following, in his decision:
"As to the question of whether or not the testatrix and the
witnesses signed the document Exhibit A in accordance with
the provisions of law on the matter, that is, whether or not
the testatrix signed the will, or caused it to be signed, in the
presence of the witnesses, and the latter in turn signed in
her presence and that of each other, the court, after
observing the demeanor of the witnesses for both parties, is
of the opinion that those for the petitioner spoke the
truth. It is neither probable nor likely that a man versed in
the law, such as Attorney Francisco, who was present at the
execution of the will in question, and to whose
conscientiousness in the matter of compliance with all the
extrinsic formalities of the execution of a will, and to
nothing else, was due the fact that the testatrix had
canceled her former will (Exhibit B) and had a new one
(Exhibit A) prepared and executed, should have consented
the omission of a formality compliance with which would
have required little or no effort; namely, that of seeing to it
that the testatrix and the attesting witnesses were all
present when their respective signatures were affixed to the [ G.R. No. 47799, May 21, 1943 ]
will." And the record does not furnish us sufficient ground
for deviating from the line of reasoning and findings of the ADMINISTRATION OF THE ESTATE OF
trial judge.
AGRIPINO NERI Y CHAVEZ. ELEUTERIO NERI ET
AL., PETITIONERS, US. IGNACIA AKUTIN AND
In conclusion we hold that the assignments of error made
HER CHILDREN, RESPONDENTS
by the appellants are not supported by the evidence of
record.
DECISION
The judgment appealed from is affirmed with costs against
the appellants. So ordered.
MORAN, J.:

This is where the testator in his will left all his property by
universal to the children by his second marriage, the herein
respondents, with preterition of the children by his first
marriage, the herein petitioners. 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 Celerina in the amount of P120 as appears in Exhibits
properties left by his father." It is true that Eleuterio 19, 19-A and 19-B"
appears to have received, as a donation from his father,
From these findings of the trial Court it is clear that
parcel of land No. 4, but the question of whether there has
Agapita, Rosario and the children of Getulia had received
been a donation or not is apparently left for decision in an
from the, childrenof Getulia had received from the testator
independent action, and to that effect Ignacia Akutin has
no property whatsoever, personal, real or in cash.
been appointed special administratrix for the purpose of
instituting such action.
But clause 8 of the will is invoked wherein the testator
made the statement that the children by his first marriage
With respect to Agripino and Agapita the parcels of land
had already received their shares in his property excluding
which they have occupied, according to the trial Court, "are
what he had given them as aid during their financial
a part of public land which had been occupied by
troubles and the money they had borrowed from him which
Agripino Neri Chaves, and, therefore, were not a part of the
he condoned in the will. Since, however, this is an issue of
estate of the latter.
fact tried by the Court of First Instance, and we are
reviewing the decision of the Court of Appeals upon a
Concerning Getulia who died about eight years before the
question of law regarding that issue, we can rely only upon
death of her father Agripino Neri, the trial Court found that
the findings of fact made by the latter Court, which are as
"neither Getulia nor her heirs received any share of
follows:
the properties.
"Since all the parcels that corresponded to Agripino Neri y
And with respect to Rosario and Celerina, the trial Court Chaves are now in the administrator's possession, as
said that "it does not appear clear, therefore that Celerina appears in the inventory filed in court, it is clear that the
and Rosario received their shares m the estate left by their property of the deceased has remained intact and that no
father Agripino Neri Chaves." portion thereof has been given to the children of the first
marriage.
This is in connection with the property, real or personal, left
by the deceased. As to money advances, the trial Court "* * * * * * * * * *
found:
"It is stated by the court and practically admitted by the
"It is contended, furthermore, that the children of
appellants that a child of the first marriage named Getulia,
Agripino Neri Chaves in his first mariage received money
or her heirs after her death, did not receive any share of the
from their father. It appears that Nemesio Chaves is
property of her father."
indebted in the amount of P1,000; Agripino, in the amount
P500 as appears in Exibits 14 and 15. Getulia, in the It is true that in the decision of the Court of Appeals
amount of P155 as appears in Exhibits 16, 17, and 18; there is also the following paragraph:
"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 Mid 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 for otherwise the children
by the second marriage would not ay 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 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
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:
"ART. 814. The preterition of one or of all the forced heirs
in the direct line, whether living at the execution of the will
or born after 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.
"The pretertion of the widower or widow does not annul the
institution; nut the person omitted shall retain all the rights
granted to him by articles 834, 835, 836, and 837 of this
Code.
"If the forced heirs omitted die before the testator, the
institution shall become operative."
"ART. 817. Testamentary dispositions which diminish the
legitime 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, betterment, 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 to 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 usufructuaria, como ocurre
en los demas casos, la pretericion no puede menos de
alterar esenciahnente la institucioin 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 primera solucion, ya que hemos de
atenernos estrictamente al texto de la ley; mientras que el
articulo 851, en casos analogos, 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
mejoras, si las hay, y aun la institucidn de heredero, son
validas en cuanto no perjudiquen al heredero forzoso.
"La diferencia se notara perfectamente con un ejemplo. Un
solteron, sin descendientes 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 disposition
testamentaria. A su muerte, el hijo natural, o los
legitimos, fundandose en la nulidad total de
la institucidn, con arreglo al articulo 814, piden toda la
herencia. En caso del articulo 851 sdlo podrian pedir su
legitima. Preteridos, adquieren derecho a
todo; desheredados, solo les corresponde un terdo o dos
tercios, segun el caso.
"En el fondo la cuestidn es identica. El testador
puede siempre disponer a su arbitrio de la parte libre. El
legitimario, contra la voluntad expresa del testador, solo
tiene derecho a su legftima. Preterido o desheredado sin
justa causa la legitima es suya. Desheredado o preterido, la
portion libre no le corresponde, cuando el testador
la asigna a otro. Logicamente no cabe que el legitimario, 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 libre a titulo de legado.
"Cual es la razon de esta diferencia? En la generalidad de
los casos puede fundarse el precepto en la
presunta voluntad del testador Este, al desherecter,
revela que existe alguna razon o motivo que le impulsa a
obrar asi; podra no ser bastante para privar al here dero de
su legitima, pero siempre ha de estimarse
sufitiente para privarle del resto de la herencia, pues
sobre esta no puede pretender ningun derecho el
desheredado. El heredero pretendo 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 instituia heredera a una hija
monja, por creer la testadora que no podia heredar. En
otros casos se ignora la existance 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 mis 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 nerencia, caso de no haber otros
herederos forzosos, y en iguales terminos que los demas
herederos no mejorados de un modo expreso.
"La opinion contraria puede tambien defenderse suponiendo
que la ley ariula el titulo de heredero, mas no en absolute
la participacion en el caudal; que aso como al exceptuar la
mejora se refiere a la parte libre de que haya dispuesto el
mismo testador, considerando como un simple legatano de
esa porcion a la Persona a quien el testador designo como
herederos Abonaria esta Solucion el articulo 817, al declarar
que las disposiciones testamentarias que menguan la
legitima de los herederos forzosos han de reducirse en
cuanto fueren inoficiosas, pues amparado en este articulo
el heredero voluntano, puede pretender que la disposicion a
su favor sea respetada cuanto no perjudxque a las
legitamas.
"La junsprudencia no ha resuelto de frente este cuestion,
porque no se le ha presentado en lo? terminoa propuestos;
pero ha demostrado su cnteno.
"Hemos citado las Resoluciones de la Direccion de 30 de
octubre de 1896 y de 20 de mayo de 1898. En la primera
se decide con valentia, con arreglo al texto expreso del
articulo 814; la institution de heredero se anula en
absoluto, y se abre para toda la herencia la sucesion
intestada. En la segunda se rehuye la cuestion,fundandose
en circunstancias secundanas. En el articulo siguiente
examinaremos la sentencia de 16 de enero de 1895.
"La interpretacion que rectamente se desprende del art.
814, es la de que solo valen, y eso en cuanto no sean
inoficiosas, las disposiciones kechas a titulo de legado o
mejora. En cuanto a la institucidn de heredero, se anula. Lo
que se anula deja de existir, en todo, o en parte? No se
añade Iimitacion alguna, como en el articulo 851, en el que
se expresa que se anulara la institution de heredero en
cuanto perjudique a la legitima del desheredado. Debe,
pues. entenderse que la antilacwSn es completa o total, y
que este arttculo, como especial en el caso que le motiva,
rige con preferencia at 817." (6 Manresa, 3.a ed., pags.
351-353.)(Italics 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 institution
de heredero por pretericion de uno, varies 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, hubiere 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 articulo
814, al determinar, como efecto de la pretericion, el de que
'anulara la institucion de heredero'. Cierto es que
la pretericion esta introducida, como remedio
juridico, por sus efectos, en nombre y para garantia de la
integridad 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': es decir, nada mas que en lo que
menoscabe o desconozca sus derechos a la legitima, y, por
tanto en la parte cuota o cantidad que represente en el
caudal hereditario, atendida la condicion de legitimario del
desheredado de modo ilegal e ineficaz; salvedad o
limitation de los efectos de nulidad de la institucion hecha
en el testamento, que no existe, segun se ha visto en el
814, por el que se declara, en forma general e indistinta,
que anulara la institution de heredero sin ninguna
atenuacion 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 ese 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 institution no se anularia sino que se modificaria o
disminuiria en lo necesario para dicho complemento—o de
institucion de he redero en toda la herencia, al anularse la
institution, por efecto de la pretericion, se abre la intestada
en favor del preterido o preteridos, respecto de toda la
herencia, tambien; mientras que en la caso de
desheredacion y de institucion en ia totalidad de la herencia
a favor de otra persona, solo se anulara en la parte precisa
para no Perjudicar la legitima del desheredado, que aun
siendo en este caso la lata, si no hubo mejoras, porque no
se establecieron p porque los instituidos eran herederos
voluntaries, dejaria subsistence la institution en la parte
correspondieiite al tercio de libre dispostcion Asi es que los
preteridos, en el supuesto mdicado, suceden abintestato en
todo, en concurrence con los demas herederos forzosos o
llamados por la ley al abintestato; los desheredados,
unicamente en dos tercios o en uno tan solo, en la hipotesis
de haberse ordenado mejoras.
"En cambio, ni por la desheredacion ni por la preterici6n
pierde su fuerza el testamento, en cuanto a dicho tercio
libre, si se trata descendientes; o la mitad, si se trata de
ascendientes, ya desheredados, ya preteridos, porque, ni
por el uno ni por el otro medio, se anula mas que la
institucion de heredero, en general, y totalmente por la
preterieion, y solo en cuanto perjudique a la legitima del
desheredado por la desheredacion; pero subsistiendo, en
ambos casos, todas aquellas otras disposiciones que no se
refieren a la institucion de heredero y se hallen dentro del
limite cuantitativo del tercio o mitad de libre disposition,
segun que se trate de descendientes o
ascendientes, preteridos o desheredados.
"La invocation del articulo 817 para modificar estos efectos
de la pretericion, procurando limitar la anulacion de la
institucion de heredero solo en cuanto perjudique a la
legitima, fundandose en que dicho articulo establece que
'las disposiciones testamentarias que menguan la legitima
de los herederos forzosos se reduciran, a petition de estos,
en lo que fueren inoficiosas o excesivas,' no es aceptable
ni puede variar aquellos resultados, porque es un precepto
de caracter general en toda otra clase de disposiciones
testamentarias que produzcan el efecto de menguar la
legitima, que no puede anteponerse, en su aplicacion, a las
de indole especial para senalar los efectos de la pretericion
o de la desheredacion, regulados privativa y
respectivamerite por los articulos 814 y 851.
"No obstante la pretericion, 'valdran las man das 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 confirmation indudable de los efectos de la
pretericion, en cuanto akanzan solo, pero totalmente, a la
anulacion de la institucion de heredero, pero no a la de las
mandas y mejoras en cuanto no sean inoficiosas o
perjudiquen a la legitima de los preteridos; calificativo de
tales, como sinonimo legal de excesivas, 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
a todo; desheredados solo les corresponde un tercio o dos
tercios, segtin 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 title 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 invocation del articulo 817 para
modificar estos efectos de la pretericion, procurando limitar
la anu lacion de la institucion de heredero solo en cuanto
Perjudique a la legitima, fundandose en que dicho
articulo establece que 'las disposiciones testamentarias que
menguan la legitima de los herederos forzosos se reduciran,
a petition de estos, en lo que fueren inoficiosas o excesivas,'
no es aceptable ni puede variar aquellos resultados, porque
es un precepto de cardcter general en toda otra clase de
disposiciones testamentarias que produzcan el efecto
de menguar la legitima, que no puede anteponerse, en su
aplicacion, a las de indole especial para senalar los efectos
de la pretericion 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 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.
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
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 two 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 signines merely that
it also applies in cases of preterition. As regards
testamentary dispositions in general, the general rule is
that all "testamentary dispositions which diminish the
legitime of the forced heirs shall be reduced on petition of
the same in so far as they are inofficious 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, sees. 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 preceptia en tales casos de pretericion
la nulidad de la institucion de heredero, no consiente
interpretacion alguna favorable a la persona institufda en el
sentido antes expuesto, aun cuando parezca, y en algun
caso pudiera ser, mas o menos equitativa, porque una
nulidad no signinca 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
consiguienemente, en un testamento donde falte la
institucion, es obligado llamar a los herederos forzosos en
todos 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 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 mterpretacion
arbitraria, dentro del derecho positivo, reputar como
legatario a un herederocuya institution 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 que no autoriza a una interpretacion
contraria a sus terminos y a los principios que informan la
testamentificacion, pues no porque parezca mejor una cosa
en el terreno del Derecho constituyente, hay razon para
convertir este Juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el
legislador 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 m substance the subject-
matter of article 814 of the Civil Code. Again, it may also be
true that heirs under the Code of Civil Procedure may
receive the bequest only after payment of debts left by the
deceased and not befOre as under the Civil Code but thls
mav 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 applied 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 mad e for him, such child shall have
the same share in the estate of the testator as if he
had died intestate; and the 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 omissio 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 reads 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: arehereby restored to full force and
effect." (Italics 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. testator may be presumed to treat alike all his children.

Article 1080 of the Civil Code that is also And speciany is this true in the instant case where the
invoked deserves no consideration except for the testator omitted the children by his first marriage upon the
observation that it has no relevancy in the instant case. erroneous beIief that he had giyen them already more
shares in his property than those given to the children by
Our attention is directed to the case of Escuin vs. Escuin his second marriage. It was therefore, the thought of the
(11 Phu., 332). We have never lost sight testator that the children by his first marriage shoui,i not
of the ruling laid down in that case which has been receive less than the children by his second marriage, and
reiterated in Elzeazar vs. Eleazer (37 Off. Gaz., p. to that effect is the decision of this Court sought to be
1782). In the Escuin case, the deceased left all reconsidered. Motion for reconsideration is hereby denied.
his property to his natural father (not a forced heir) and
his wife Ozaeta, with total preterition of an acknowledged
natural child; and, in the Eleazar case the deceased left all
his property to a friend 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 least 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 heir of his 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
 FIRST DIVISION
[ G.R. No. L-54919, May 30, 1984 ]
POLLY CAYETANO, PETITIONER, VS. HON. TOMAS
T. LEONIDAS, IN HIS CAPACITY AS THE PRE-
SIDING JUDGE OF BRANCH XXXVIII; COURT OF
FIRST INSTANCE OF MANILA AND NENITA
CAMPOS PAGUIA, RESPONDENTS.
DECISION
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul
the order of the respondent judge of the Court of First
Instance of Manila, Branch XXXVIII, which admitted to and
allowed the probate of the last will and testament of
Adoracion C. Campos, after an ex-parte presentation of
evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving
her father, petitioner Hermogenes Campos and her sisters,
private respondent Nenita C. Paguia, Remedios C. Lopez
and Marieta C. Medina as the surviving heirs. As
Hermogenes Campos was the only compulsory heir, he
executed an Affidavit of Adjudication under Rule 74, Section
I of the Rules of Court whereby he adjudicated unto himself
the ownership of the entire estate of the deceased
Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C.
Paguia filed a petition for the reprobate of a will of the
deceased, Adoracion Campos, which was allegedly executed
in the United States and for her appointment as
administratrix of the estate of the deceased testatrix.
In her petition Nenita alleged that the testatrix was an
American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her sister
at 2167 Leveriza, Malate, Manila; that during her lifetime,
the testatrix made her last will and testament on July 10,
1975, according to the laws of Pennsylvania, U.S.A.,
nominating Wilfredo Barzaga of New Jersey as executor;
that after the testatrix' death, her last will and testament
was presented, probated, allowed, and registered with the
Registry of Wills at the County of Philadelphia, U.S.A., that
Clement L. McLaughlin, the administrator who was
appointed after Dr. Barzaga had declined and waived his
appointment as executor in favor of the former, is also a
resident of Philadelphia, U.S.A., and that therefore, there is
an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the
estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the
will was filed by herein petitioner alleging among other
things, that he has every reason to believe that the will in
question is a forgery; that the intrinsic provisions of the will
are null and void; and that even if pertinent American laws
on intrinsic provisions are invoked, the same could not
apply inasmuch as they would work injustice and injury to
him.
On December 1, 1978, however, the petitioner through his
counsel, Atty. Franco Loyola, filed a Motion to Dismiss
Opposition (With Waiver of Rights or Interests) stating that
he "has been able to verify the veracity thereof (of the will)
and now confirms the same to be truly the probated will of
his daughter Adoracion." Hence, an ex-parte presentation of
evidence for the reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order,
to wit:
"At the hearing, it has been satisfactorily established that
Adoracion C. Campos, in her lifetime, was a citizen of the
United States of America with a permanent residence at
4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D);
that when alive, Adoracion C. Campos executed a Last Will
and Testament in the county of Philadelphia, Pennsylvania,
U.S.A., according to the laws thereat (Exhibits E-3 to E-3-
b); that while in temporary sojourn in the Philippines,
Adoracion C. Campos died in the City of Manila (Exhibit C)
leaving property both in the Philippines and in the United
States of America; that the Last Will and Testament of the
late Adoracion C. Campos was admitted and granted
probate by the Orphan's Court Division of the Court of
Carmon Pleas, the probate court of the Commonwealth of
Pennsylvania, County of Philadelphia, U.S.A., and letters of
administration were issued in favor of Clement J.
McLaughlin, all in accordance with the laws of the said
foreign country on procedure and allowance of wills
(Exhibits E to E-10); and that the petitioner is not suffering
from any disqualification which would render her unfit as
administratrix of the estate in the Philippines of the late
Adoracion C. Campos.
"WHEREFORE, the Last Will and Testament of the late
Adoracion C. Canpos is hereby admitted to and allowed
probate in the Philippines, and Nenita Campos Paguia is
hereby appointed Administratrix of the estate of said
decedent; let Letters of Administration with the Will
annexed issue in favor of said Administratrix upon her filing
of a bond in the amount of P5,000.00 conditioned under the
provisions of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April
14, 1979, confirming the withdrawal of his opposition,
acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for
relief, praying that the order allowing the will be set aside
on the ground that the withdrawal of his opposition to the
same was secured through fraudulent means. According to
him, the "Motion to Dismiss Opposition" was inserted among
the papers which he signed in connection with two Deeds of
Conditional Sales which he executed with the Construction
and Development Corporation of the Philippines (CDCP). He
also alleged that the lawyer who filed the withdrawal of the
opposition was not his counsel-of-record in the special
proceedings case.
The petition for relief was set for hearing but the petitioner
failed to appear. He made several motions for
postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled
"Motion to Vacate and/or Set Aside the Order of January 10,
1979, and/or dismiss the case for lack of jurisdiction. In this
motion, the notice of hearing provided:
"Please include this motion in your calendar for hearing on
May 29, 1980 at 8:30 in the morning for submission for
reconsideration and resolution of the Honorable Court. Until
this Motion is resolved, may I also request for the future
setting of the case for hearing on the Oppositor's motion to
set aside previously filed."
The hearing of May 29, 1980 was re-set by the court for
June 19, 1980. When the case was called for hearing on this
date, the counsel for petitioner tried to argue his motion to
Vacate instead of adducing evidence in sup port of the
petition for relief. Thus, the respondent judge issued an
order dismissing the petition for relief for failure to present
evidence in support thereof. Petitioner filed a motion for
reconsideration but the same was denied. In the same
order, respondent judge also denied the motion to vacate
for lack of merit. Hence, this petition.
Meanwhile, on June 6, 1982, petitioner Hermogenes
Campos died and left a will, which, incidentally has been
questioned by the respondent, his children and forced heirs
as, on its face, patently null and void, and a fabrication,
appointing Polly Cayetano as the executrix of his last will
and testament. Cayetano, therefore, filed a motion to
substitute herself as petitioner in the instant case which was
granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the
rights of the petitioner Hermogenes Campos merged upon
his death with the rights of the respondent and her sisters, I
only remaining children and forced heirs was denied on
September 12, 1983.
Petitioner Cayetano persists with the allegations that the
respondent judge acted without or in excess of his
jurisdiction when:
"1) He ruled the petitioner lost his standing in court
deprived the Right to Notice (sic) upon the filing of the
Motion to Dismiss opposition with waiver of rights or
interests against the estate of deceased Adoracion C.
Campos, thus, paving the way for the ex-parte hearing of
the petition for the probate of decedent will.
"2) He ruled that petitioner can waive, renounce or
repudiate (not made in a public or authenticated
instrument, or by way of a petition presented to the court
but by way of a motion presented prior to an order for the
distribution of the estate - the law especially providing that
repudiation of an inheritance must be presented, within 30
days after it has issued an order for the distribution of the
estate in accordance with the rules of Court.
“3) He ruled that the right of a forced heir to his legitime
can be divested by a decree admitting a will to probate in
which no provision is made for the forced heir in complete
disregard of Law of Succession.
“4) He denied petitioner's petition for Relief on the ground
that no evidence was adduced to support the Petition for
Relief when no Notice nor hearing was set to afford
petitioner to prove the merit of his petition - a denial of the
due process and a grave abuse of discretion amounting to
lack of jurisdiction.
"5) He acquired no jurisdiction over the testate case, the
fact that the Testator at the time of death was a usual
resident of Dasmariñas, Cavite, consequently Cavite Court
of First Instance has exclusive jurisdiction over the case (De
Borja vs. Tan, G.R. No. L-7792, July 1955)."
The first two issues raised by the petitioner are anchored on
the allegation that the respondent judge acted with grave
abuse of discretion when he allowed the withdrawal of the
petitioner's opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the
respondent judge. No proof was adduced to support
petitioner's contention that the motion to withdraw was
secured through fraudulent means and that Atty. Franco
Loyola was not his counsel of record. The records show that
after the filing of the contested motion, the petitioner at a
later date, filed a manifestation wherein he confirmed that
the Motion to Dismiss Opposition was his voluntary act and
deed. Moreover, at the time the motion was filed, the
petitioner's former counsel, Atty. Jose P. Lagrosa had long
withdrawn from the case and had been substituted by Atty.
Franco Loyola who in turn filed the motion. The present
petitioner cannot, therefore, maintain that the old man's
attorney of record was Atty. Lagrosa at the time of filing the
motion. Since the withdrawal was in order, the respondent
judge acted correctly in hearing the probate of the will ex-
parte, there being no other opposition to the same.
The third issue raised deals with the validity of the
provisions of the will. As a general rule, the probate court's
authority is limited only to the extrinsic validity of the will,
the due execution thereof, the testatrix'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. However, where
practical considerations demand that the intrinsic validity of
the will be passed upon, even before it is probated, the
court should meet the issue. (Maninang v. Court of Appeals,
114 SCRA 478).
In the case at bar, the petitioner maintains that since the
respondent judge allowed the reprobate of Adoracion's will,
Hermogenes C. Campos was divested of his legitime which
was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited
the petitioner and thus, the respondent judge should have
denied its reprobate outright, the private respondents have
sufficiently established that Adoracion was, at the time of
her death, an American citizen and a permanent resident of
Philadelphia, Pennsylvania, U.S.A. Therefore, under Article
16 par. (2) and 1039 of the Civil which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
"However, intestate and testamentary successions, both
with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless
of the country wherein said property may be found."'
Art. 1039.
"Capacity to succeed is governed by the law of the nation of
the decedent."
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the Pennsylvania
law does not provide for legitimes and that all the estate
may be given away by the testatrix to a complete stranger,
the petitioner argues that such law should not apply
because it would be contrary to the sound and established
public policy and would run counter to the specific
provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the
provisions of the will, as provided for by Article 16 (2) and
1039 of the Civil Code, the national law of the decedent
must apply, This was squarely applied in the case of Bellis
v. Bellis (20 SCRN 358) wherein we ruled:
"It is therefore evident that whatever public policy or good
customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen
to leave, inter alia, the amount of successional rights, to the
decedent's national law. Specific provisions must prevail
over general ones.
xxx xxx xxx
"The parties admit that the decedent, Amos G. Bellis, was a
citizen of the State of Texas, U.S.A. and under the law of
Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under
Texas law, the Philippine Law on legitimes cannot be applied
to the testacy of Amos G. Bellis."
As regards the alleged absence of notice of hearing for the
petition for relief, the records will bear the fact that what
was repeatedly scheduled for hearing on separate dates
until June 19, 1980 was the petitioner's petition for relief
and not his motion to vacate the order of January 10, 1979.
There is no reason why the petitioner should have been led
to believe otherwise. The court even admonished the
petitioner's failing to adduce evidence when his petition for
relief was repeatedly set for hearing. There was no denial of
due process. The fact that he requested "for the future
setting of the case for hearing xxx" did not mean that at the
next hearing, the motion to vacate would be heard and
given preference in lieu of the petition for relief.
Furthermore, such request should be embodied in a motion
and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue
of jurisdiction utterly devoid of merit. Under Rule 73,
Section 1, of the Rules of Court, it is provided that:
"SECTION 1. Where estate of deceased persons settled. -If
the decedent is an inhabitant of the Philippines at the tine of
his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in
which he resided at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of
any province in which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, so far as it depends on
the place of residence of the decedent, or of the location of
his estate, shall not be contested in a suit or proceeding,
except in an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record."
Therefore, the settlement of the estate of Adoracion
Campos was correctly filed with the Court of First Instance
of Manila where she had an estate since it was alleged and
proven that Adoracion at the time of her death was a citizen
and permanent resident of Pennsylvania, United States of
America and not a "usual resident of Cavite" as alleged by
the petitioner. Moreover, petitioner is now estopped from
questioning the jurisdiction of the probate court in the
petition for relief. It is a settled rule that 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 that same jurisdiction. (See Saulog
Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284,
April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is
hereby dismissed for lack of merit.
SO ORDERED.
 EN BANC
[ G.R. No. 72706, October 27, 1987 ]
CONSTANTINO C. ACAIN, PETITIONER, VS. HON.
INTERMEDIATE APPELLATE COURT (THIRD
SPECIAL CASES DIVISION), VIRGINIA A.
FERNANDEZ AND ROSA DIONGSON,
RESPONDENTS.
DECISION
PARAS, J.:
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-A-CEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying
respondents' (petitioners herein) motion for reconsideration.
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-A-CEB. 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 in 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-A-CEB (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 NemesioAcain on February 17,
1960 was written in Bisaya (Rollo, p. 27) with a translation in English
(Rollo, p. 31) submitted 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:
"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 predeceases me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute
my share shall be given by me to his children,
namely: Anita, Constantino,Concepcion, Quirina, Laura, Flores,
Antonio and Jose, all surnamed Acain."
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-A-CEB.
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 the deceased and the latter's widow
Rosa Diongson Vda. de Acain) filed a motion to dismiss on the
following grounds: (1) the petitioner has no legal capacity to institute
these proceedings; (2) he is merely a universal heir and (3) the widow
and the adopted daughter have been preterited. (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-A-CEB.
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).
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).
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 ERIT 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 inviolable.
(F) As an instituted heir, petitioner has the legal interest and
standing to file the petition in Sp. Proc. No. 591-A-CEB for probate
of the will of Nemesio Acain; and
(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 preterited.
Article 854 of the Civil Code 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 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 be 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 [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 was 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.
Preterition annuls the institution of an heir and annulment throws
open to intestate succession the entire inheritance including
"la porción libre (que)no hubiese dispuesto en virtual
de legado, mejora o donación" (Manresa, 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 in so far 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 will
- amounts 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
in 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 judicial
authority (People v. Villanueva, 110 SCRA465 [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 (D.D. 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-CEB 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]; Cayetanov. Leonidas,
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 preterition. 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-CEB 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. Leonidas, supra; Nuguid 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 v. Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED
for lack of merit and the questioned decision of respondent
Court of Appeals promulgated on August 30, 1985 and its
Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.