CASE NO. 68Neri v. Akutin74 Phil 185; May 21, 1943J. Moran:
Agripino Neri [+] in his will left all his property by universal title to his children by the 2
marriage [hereinpetitioners] and that the sic children of the 1
marriage are preterited. The TC and CA annulled the institution of heirs anddeclared total intestacy. Petitioners alleged that (1) there is no preterion as they have received their shares in theproperty left by the testator; (2) assuming that there is, it would only result to reduction of the bequest made to them.
CA- affirmed(1) As found by the TC and CA, since all the parcels that corresponded to the testator are now in the administratorspossession, as appears in the inventory, the property has remained intact and that no portion had been given to thechildren of the 1
marriage. And since the testator left all his property by universal title to the children by his 2
marriage,and that without expressly disinheriting the children by his 1
marriage, this is a case of preterion, hence, the institution of heirs should be annulled and intestate succession should be declared open.(2) Petitioners confused Preterion with those of diminishing the legitime (Art. 817) and disinheritance without a statementof cause (Art. 851). Art. 817 is merely a general rule inapplicable to specific cases provided by law, such as Art. 814 and851.PRETERIONDISINHERITANCENullity of the institution of heirs isTOTALNullity is PARTIAL, in so far only asthat affects the legitimeOf course, the annulment of institution of heirs in cases of Preterion is subject to exceptions: in cases of preterion issubject to exceptions: in cases of devices or legacies in so far as they are not innoficious or excessive. As to theargument that the bequest to the children by the 2
marriage should be treated as legacies and devices and not beentirely annulled but merely reduced is without merit. If this theory would be adopted, it would result in the completeabrogation of Art. 814 and 851. if every case of institution of heirs may be made to fall into concepts of legacies anddevices, Art. 814 and 851 would be absolutely meaningless. Thus, instead of construing we would be destroying theprovisions of law.
CASE NO. 69