[G.R. No. 8927. March 10, 1914. ] ASUNCION NABLE JOSE ET AL., Plaintiffs-Appellants, v. MARIA IGNACIA USON ET AT SYLLABUS 1.

WILLS; INTERPRETATION; SUCCESSION OF SISTERS AND NIECES. — The following clauses appeared in a will. It was held that the living sisters and the children of the deceased sisters take per capita and in equal parts. The question involved in this appeal arises from the interpretation of the first and second clauses of a codicil to the will of Filomena Uson. They read as follows:jg "First. I declare that all the property which belongs to me as conjugal property, referred to in my said testament, shall be the property of my aforesaid husband, Don Rafael Sison; in case all or part of said property exists at my husband’s death, it is my will that at his death my sisters and nieces hereinafter named succeed him as heirs. "Second. I declare to be my sisters in lawful wedlock the persons named Doña Antonia Uson, now deceased, who has left two daughters called Maria Rosario, widow, of Estanislao Lengson; Ignacia Uson, married to Don Vicente Puzon; Eufemia Uson, now deceased, who is survived by three daughters called Maria Salud, Maria Amparo, and Maria Asuncion; and Maria Pilar Uson; Maria Manaoag Uson, unmarried, issue had by our deceased father Don Daniel Uson with one Leonarda Fernandez, alias Andao de Lingayen, so that they may have and enjoy it in equal parts as good sisters and relatives."cralaw virtua1aw library The court below found that the children of the deceased sisters should take only that portion which their respective mothers would have taken if they had been alive at the time the will was made; that the property should be divided into six equal parts corresponding to the number of sisters; that each living sisters should take one-sixth, and the children of each deceased sister should also take one-sixth, each one-sixth to be divided among said children equally. This appeal taken from the judgment entered upon that finding, appellants asserting that under a proper construction of the paragraphs of the codicil above-quoted the property should be divided equally between the living sisters and the children of the deceased sisters, share and share alike, a niece taking the same share that a sister receives. We are of the opinion that the appellant’s contention is well founded. We see no words or phrases in the clauses quoted which lead necessarily to the construction placed upon those paragraphs by the learned court below. On the other hand, we find expression which seem to indicate with fair clearness that it was the intention of the testatrix to divide her property equally between her sisters and nieces. The court below based its construction upon the theory that the other construction would be "an admission that the testatrix desired to favor her deceased sister Eufemia Uson, who left three children, more than her other deceased sister Antonia Uson, who left two children, and moreover both would be more favored than any of the other four surviving sisters, one of whom was married at the time of the execution of the said codicil and without doubt had children."cralaw virtua1aw library As we look at the codicil we observe, first, that the testatrix, in the first paragraph thereof, declares that after her husband’s death she desires that "my sisters and nieces, as hereinafter named, shall succeed him as heirs."cralaw virtua1aw library

We note, in the second place, that the testatrix, in the second paragraph of the codicil, names and identifies each one of her heirs then living, or each one of the persons whom she desires shall succeed her husband in the property. Among those mentioned specifically are the nieces as well as the sisters. The nieces are referred to in no way different from the sisters. Each one stands out in the second paragraph of the codicil as clearly as the other and under exactly the same conditions. In the third place, we note, with interest, the last clause of the second paragraph of the codicil which, it seems to us, taken together with the last clause of the first paragraph of the codicil, is decisive of the intention of the testatrix. In the last clause she says that she names all of the persons whom she desires to take under her will by name "so that they may take and enjoy the property in equal parts as good sisters and relatives."cralaw virtua1aw library We have then in the first paragraph a declaration as to who the testatrix desires shall become the owners of her property on the death of her husband. Among them we find the names of the nieces as well as of the sisters. We have also the final declaration of the testatrix that she desires that the sisters and nieces shall take and enjoy the property in equal parts. That being so, it appears to us that the testatrix’s intention is fairly clear, so clear in fact that it is unnecessary to bring in extraneous arguments to reach a conclusion as to what she intended. The judgment appealed from is hereby modified by declaring that, of the property passing under the codicil hereinabove referred to, the living sisters and the children of the deceased sisters shall take per capita and in equal parts, and as so modified the judgment is affirmed. No costs in this instance.

B.. — Appellee contends that the partition in question was void as a compromise on the civil status of S. JUDICIAL DECREE OF DISTRIBUTION. and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament. PARTITION. as daughter of the testator.B. If the decree was erroneous or not in conformity with law or the testament.. the same should have been corrected by opportune appeal.] TIRSO T. the validity or invalidity of the project of partition becomes irrelevant.B. ITS EFFECT. unless properly set aside for lack of jurisdiction or fraud.. but of heirs (without distinction between forced.R. Azucena. was at a liberty to assign the free portion of his estate to whomsoever he chose. as guardian of the minors. voluntary or intestate ones). hence.B. to be null and void ab initio because the distributee. — Article 1081 of the Civil Code of 1889 (then in force) provided that "a partition in which a person was believed to be an heir without being so.B. COMPROMISE ON CIVIL STATUS PRESUPPOSES SETTLEMENT OF CONTROVERSY THROUGH MUTUAL CONCESSION OF PARTIES. — While the share (1/2) assigned to S. since there was here no preterition. ALLOTMENT OF SMALLER SHARE THAN LEGITIME DOES NOT INVALIDATE INSTITUTION OF HEIR.B.B. as heir. There can be no compromise over issues not in dispute. LEGITIME.. The legal precept (Article 1081) does not speak of children. did not for that reason cease to be a testamentary heir of B. the lower court declared the project of partition submitted in the proceedings for the settlement of the estate of B. against the provisions whereof no objection had been made. S. 2. Flordelis and Tirso. but once it had become final. it is the court alone that makes the distribution of the estate and determines the persons entitled thereto and the parts to which each is entitled.B. REYES.. No. for B. CIVIL LAW. was a minor at the time the probate court distributed the estate of her father in 1939 does not imply that the said court was . January 20. ID. and it is that judicial decree of distribution. and the condition of S. LUCILA MILAGROS BARRETTO DATU SYLLABUS 1. since a compromise presupposes the settlement of a controversy through mutual concessions of the parties. B. while untrue. and was not null and void under said article. — Even without the (questioned) project of partition the distribution could stand since it was in conformity with the probated will of the deceased. 1967.. or total omission of a forced heir... S." Based on this Article. S. has been included. or descendants. ID. 6.B. that vests title in the distributees. HELD: Article 1081 of the old Civil Code has been misapplied to the present case by the lower court. Where a court has validly issued a decree of distribution of the estate. its binding effect is like that of any other judgment in rem. This view is erroneous. shall be null and void. 4. and the same has become final.B. ID. v.B. the law nowhere forbids a settlement by the parties over the share that should correspond to a claimant to the estate. decedent’s daughter. ID. was allotted in her father’s will a share smaller than her legitime invalidate the institution of S. B. ARTICLE 1081 OF THE CIVIL CODE OF 1889 (then in force) CONSTRUED. once final. ID. was not a daughter of the decedent. had been instituted heir in the late decedent’s last will and testament together with M. — That M. JUDICIAL DECREE OF DISTRIBUTION. was at no time disputed during the settlement of the estate of the testator. MINORITY OF HEIR DOES NOT IMPLY THAT COURT WAS WITHOUT JURISDICTION TO ENTER DECREE OF DISTRIBUTION. 3.B. impinged on the legitime of M. 5. ID. L-17818. Jr. the partition had between them could not be one such had with a party who was believed to be an heir without really being one.[G. — Independently of a project of partition which is merely a proposal for distribution of the estate. Nor does the fact that M. And while a compromise over civil status is prohibited. that the court may accept or reject.

10. 22443. ID. Said project of Partition was approved by the Court of First Instance of Manila on November 22. 7. being the share of plaintiff’s wards as minor heirs of the deceased Salud Barretto. . GUARDIAN. Lucia Milagros Barretto Datu. in the City of Manila.. guardian of said minors. Reyes and ordering the same to deliver to the defendant-appellee.. Maria Gerardo. — The proceeding for probate is one in rem and the court acquires jurisdiction over all persons interested. It appears that Bibiano Barretto was married to Maria Gerardo. instead of an independent action the effect of which. Bulacan. Direct appeal from a judgment of the Court of First instance of Bulacan. — Granting that there was fraud. 2057. would be for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of. widow of plaintiff Tirso Reyes. if successful. Rizal. 1936. Salud Barretto took immediate possession of her share and secured the cancellation of the original certificates of title and the issuance of new titles in her own name. 27285. however. The distribution of the estate and the delivery of the shares of the heirs followed forthwith. which was signed by her in her own behalf and as guardian of the minor Milagros Barretto. ID. mother of plaintiff’s wards. consisting of lots in Manila. NATURE OF. 57403 and 12507/T-337. PROBATE PROCEEDING. the properties received by his deceased wife under the terms of the will of the late Bibiano Barretto. 6277. and Bulacan. Pampanga and Bulacan. 2991. Hagonoy. abovementioned.without jurisdiction to enter the decree of distribution.000. 8858. Maria Gerardo was appointed administratrix. she prepared a project of partition. dismissing the complaint of appellant Tirso T. SUIT BASED ON FRAUD SHOULD BE BROUGHT WITHIN 4 YEARS FROM ITS DISCOVERY. covered by Transfer Certificates of Title Nos. 1084. in its Civil Case No. was reserved for his widow. — An abdicative waiver of rights by a guardian.. — The only instance in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. covered by Transfer Certificate of Title No. 6500. Even then. T-13734 of the Land Records of this Province. Pampanga. The decision appealed from sets the antecedents of the case to be as follows:jgc:chanrobles. 41423. being null and void as to them unless duly authorized by the proper court. 32989. 9. he left his share of these properties in a will to Salud Barretto. During their lifetime they acquired a vast estate. 8. through the publication of the notice and any order that may be entered therein is binding against all of them. As a consequence. ID. being an act of disposition and not of administration. STATUTE OF LIMITATIONS. 1939. located in the barrio of San Roque. GROUNDS FOR SETTING ASIDE. valued at more than P200.. the better practice to secure relief is reopening of the same case by proper motion within the reglamentary period. Bulacan. ID. ID. consisting of real properties in Manila. When Bibiano Barretto died on February 18. WAIVER OF RIGHTS BY GUARDIAN DOES NOT BIND HIS WARDS. 31046. 6501.. and Lucia Milagros Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew and nieces.ph "‘This is an action to recover one-half share in the fishpond.com. relief therefrom can only be obtained within 4 years from its discovery. ID. The usufruct of the fishpond situated in barrio San Roque. and the record shows that this period had elapsed long ago.. Hagonoy.. In the meantime. By virtue thereof. A final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. cannot bind his wards. ID.

The nullity of the project of partition was decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force) providing as follows:jgc:chanrobles. And it concluded that. Maria Gerardo died on March 5. predecessor of plaintiffs (now appellants). In rejecting the first will presented by Tirso Reyes. and. this action for the recovery of one-half portion thereof.ph "A partition in which a person was believed to be an heir. the lower court declared the project of partition submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil Case No. she revoked the same and left all her properties in favor of Milagros Barretto alone. it denied defendant’s prayer for damages.com.Everything went well since then. in the second. Hence. 1 Having thus lost this fight for a share in the estate of Maria Gerardo. and from the latter’s children and successors. the later will was allowed and the first rejected. The reason is obvious: Salud Barretto admittedly had been instituted heir in the late Bibiano Barretto’s last will and testament together with defendant Milagros. not only of the project of partition but of the decision of the court based thereon as well. the lower court held that Salud was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. she was entitled to recover from Salud. but of all the other properties willed and delivered to Salud Barretto. not only of the fishpond under litigation. in view of the provisions of Article 1456 of the new Civil Code of the Philippines establishing that property acquired by fraud or mistake is held by its acquirer in implied trust for the real owner. Hence. as stated at the beginning of this opinion. the partition had between them could not be one such had with a party who was believed to be an heir without really being one. This action afforded the defendant an opportunity to set up her right of ownership. 1948. without being so. it was discovered that she had executed two wills. as guardian of the children of Salud Barretto. This ruling was appealed to the Supreme Court. . at least. 49629 of the Court of First Instance of Manila) to be null and void ab initio (not merely voidable) because the distributee. The defendant contends that the Project of Partition from which Salud acquired the fishpond in question is void ab initio and Salud Barretto did not acquire any valid title thereto.’" Finding for the defendant (now appellee). as her heirs."cralaw virtua1aw library The Court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto was free to dispose of one. his will was valid in favor of Salud Barretto (nee Lim Boco) to the extent. which was given in usufruct to his widow Maria Gerardo. and that the court did not acquire any jurisdiction of the person of the defendant. was not a daughter of the spouses Bibiano Barretto and Maria Gerardo. Milagros Barretto. thereby directly attacking the validity. Nobody was heard to complain of any irregularity in the distribution of the said estate until the widow. for being a spurious heir. who was then a minor.third (1/3) of his estate under the old Civil Code. shall be null and void. Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to the present case by the court below. However. Hence. which affirmed the same. the Court a quo not only dismissed the plaintiffs’ complaint but ordered them to return the properties received under the project of partition previously mentioned as prayed for in defendant Milagros Barretto’s counterclaim. Thus. in the first of which. as a legitimate heir of Maria Gerardo. Salud Barretto. and not entitled to any share in the estate of Bibiano Barretto. of such free part. has been included. this appeal interposed by both plaintiffs and defendant. plaintiff now falls back upon the remnant of the estate of the deceased Bibiano Barretto. she instituted Salud and Milagros. Upon her death. both surnamed Barretto. as defendant Milagros was the only true heir of Bibiano Barretto. all the properties received by her from Bibiano’s estate. hence.

once final. At any rate. cit. Civil Code of the Philippines. But. Rules of 1940. Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto). This view is erroneous. voluntary or intestate ones). is invoked in support of the proposition. while untrue. nor were any findings of fact or law made. Hence. That case is authority for the proposition that a judgment by compromise may be set aside on the ground of mistake or fraud. Revised Rules of Court). a proceeding. or descendants. or total omission. Rule 91. and the condition of Salud as daughter of the testator Bibiano Barretto. Moreover. the distribution could stand. There can be no compromise over issues not in dispute. and the same has become final. that case involving an instance of preterition or omission of children of the testator’s former marriage. 643. While the share (1/2) assigned to Salud impinged on the legitime of Milagros. the decree of distribution can have no greater validity than that of the basic partition. Saminiada v. Reyes. as its own name implies. since a compromise presupposes the settlement of a controversy through mutual concessions of the parties (Civil Code of 1889. but actually consummated. its binding effect is like that of any other judgment in rem. It is thus apparent that where a court has validly issued a decree of distribution of the estate. long before the decree was attacked. independently of a project of partition which. 629. since it was in conformity with the probated will of Bibiano Barretto. Appellee contends that the partition in question was void as a compromise on the civil status of Salud in violation of Article 1814 of the old Civil Code. It is. Neri v. was consummated" (cas. against the provisions whereof no . 2028). The legal precept (Article 1081) does not speak of children. the same should have been corrected by opportune appeal. the agreement of partition was not only ratified by the court’s decree of distribution. Mata. 92 Phil. being in the nature of a judgment by consent. even without it. argued for the appellee that since the court’s distribution of the estate of the late Bibiano Barretto was predicated on the project of partition executed by Salud Barretto and the widow. Mata does not apply. but of heirs (without distinction between forced. In the case before us. is not at all applicable. For this reason. at p. the defendant-appellee’s argument would be plausible if it were shown that the sole basis for the decree of distribution was the project of partition. 436). 322. 426. And while a compromise over civil status is prohibited. and since no evidence was taken of the filiation of the heirs. If the decree was erroneous or not in conformity with law or the testament. invoked by appellee. and must stand or fall with it.and was not null and void under said article. however. Nor does the fact that Milagros was allotted in her father’s will a share smaller than her legitime invalidate the institution of Salud as heir. Saminiada v. that vests title in the distributees. Akutin. and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament. but once it had become final. so much so that the titles in the name of the deceased were cancelled. Article 1809. based on a compromise. the law nowhere forbids a settlement by the parties over the share that should correspond to a claimant to the estate. and new certificates issued in favor of the heirs. however. and it is that judicial decree of distribution. 72 Phil. since there was here no preterition. the validity or invalidity of the project of partition becomes irrelevant. Salud did not for that reason cease to be a testamentary heir of Bibiano Barretto. upon petition filed in due time. 63 Phil. unless properly set aside for lack of jurisdiction or fraud. in fact. Section 750. for Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. Act 190. is merely a proposal for distribution of the estate that the court may accept or reject. Rule 90. where petition for "relief was filed before the compromise agreement. of a forced heir. it is the court alone that makes the distribution of the estate and determines the persons entitled thereto and the parts to which each is entitled (Comia v. Art. was at no time disputed during the settlement of the estate of the testator.

— When a will is thus allowed.’ (Santos v. or letters of administration with the will annexed. these salutary doctrines should not apply to intestate proceedings. 47 Phil. 94 Phil.ph ". provided:chanrob1es virtual 1aw library Sec. does not mean that the guardian had not yet been appointed. Barretto Datu. 45 Phil. 39 Phil. the better practice to secure relief is reopening of the same case by proper motion within the reglementary period. The only instance that we can think of in which a party interested in a probate proceedings may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. therefore. 89 Phil. by analogy. Rules of Court. no irregularity or defect or error in the project of partition. had not yet been terminated and as a guardianship proceedings begin with the appointment of a guardian. "The proceeding for probate is one in rem (40 Cyc.) ’A final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees.ph "If we are to assume that Richard Hill and Marvin Hill did not formally intervene. this Court ruled in Ramos v. . no ground for the contention that the order approving the project of partition is absolutely null and void and may be attacked collaterally in these proceedings. section 640. Such estate. for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of. 741 and 742:jgc:chanrobles. as this Court expressly declared in Reyes v. Ortuzar. it meant that the guardianship proceedings. still they would be concluded by the result of the proceedings. 3 and 5..C. and any order that may be entered therein is binding against all of them. shall be disposed of as is provided by law in cases of estates in these Islands belonging to persons who are inhabitants of another state or country. can not escape the . apparent on the record of the testate proceedings. instead of an independent action the effect of which. Appeal. Roman Catholic Bishop of Nueva Caceres. 156. 895. 157)." (Italics supplied) That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of her father in 1939 does not imply that the said court was without jurisdiction to enter the decree of distribution."cralaw virtua1aw library It is well to observe. which shows that Maria Gerardo had no power or authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto. 640. Passing upon a like issue. consequently. shall be disposed of according to such will. so far as such will may operate upon it. as in the instant case. .. pp. Maria Gerardo must have been already appointed when she signed the project of partition. It is argued that Lucia Milagros Barretto was a minor when she signed the partition. The claim is not true. 1265) and the court acquires jurisdiction over all persons interested. Act 190. Paredes. in force in 1939. and.P.com. 938. Even then. the court shall grant letters testamentary. (Secs. if successful. Reports.’ (See also in re Estate of Johnson. Rec. would be. and such letters testamentary or of administration."cralaw virtua1aw library So that it is now incontestable that appellee Milagros Barretto was not only made a party by publication but actually appeared and participated in the proceedings through her guardian: she. pp. shall extend to all the estate of the testator in the Philippine Islands. if any. As this court has held in Manolo v. at this juncture. after the payment of just debts and expenses of administration.) There is no reason why. There is. and that Maria Gerardo was not her judicially appointed guardian. How Administered. that:jgc:chanrobles. through the publication of the notice prescribed by Section 630 C. In fact. therefore.) The mere statement in the project of partition that the guardianship proceedings of the minor Lucia Milagros Barretto are pending in the court. it was the court’s duty to do so. not only as to their civil status but as the distribution of the estate as well. 446 (Am’d. and the residue. 156. Maria Gerardo signed as guardian of the minor.objection had been made. Estate.com. Rule 97.

her cause of action accrued to contest on the ground of fraud the court decree distributing her father’s estate and the four-year period of limitation started to run. the action was already barred when in August 31. so that if fraud was committed. 27). In the second place. On that year. Salud Lim Boco Barretto. Let the records be returned to the court of origin. it was the widow. In order to evade the statute of limitations. 4. can not bind his wards. who are the real parties in interest. Castro. the minor children of Salud. covered by TCT No. Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have ignored that the distributee Salud was not her child. granting that there was such fraud. to expire in 1948 (Section 43. Even more: granting arguendo that the promise was made. her action still became extinct in 1950. 1956 she filed her counterclaim in this case contesting the decree of distribution of Bibiano Barretto’s estate. with instructions to proceed with the action for partition of the fishpond (Lot No. relief therefrom can only be obtained within 4 years from its discovery. There is no reliable evidence of the alleged promise. Clearly. therefore. 49629. the trial court made no mention of such promise in the decision under appeal. 55 Phil. 142). the same can not bind the wards. the act of said widow in agreeing to the oft-cited partition and distribution was a fraud on appellee’s rights and entitles her to relief. in its Civil Case No. and (3) that her claim that plaintiff-appellant guardian is a possessor in bad faith and should account for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally untenable. Act 190). p. can be held liable therefor. knew that she was not Bibiano’s child. in 1944. which rests exclusively on the oral assertions of Milagros herself and her counsel. and the same is affirmed in so far as it denies any right of said appellee to accounting. Maria Gerardo. In resume. In fact.jurisdiction of the Manila Court of First Instance which settled her father’s estate. and for the accounting of the fruits thereof. (2) that Milagros Barretto’s action to contest said partition and decree of distribution is barred by the statute of limitations. 136. who was solely responsible. In the first place. being null and void as to them unless duly authorized by the proper court (Ledesma Hermanos v. conceding that Milagros only became aware of the true facts in 1946 (Appellee’s Brief. . Plan Psu-4709). Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24). the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu the properties enumerated in said decision. It follows that the plaintiffs’ action for partition of the fishpond described in the complaint should have been given due course. appellants herein. is not void for being contrary to either articles 1081 or 1814 of the Civil Code of 1889. and the record shows that this period had elapsed long ago. In fact. T-13734 of the Office of the Register of Deeds of Bulacan. we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for the settlement of the estate of Bibiano Barretto. An abdicative waiver of rights by a guardian. and neither Salud nor her minor children. as prayed for in the complaint. No costs. there is no evidence that when the estate of Bibiano Barretto was judicially settled and distributed appellants’ predecessor. Salud. being an act of disposition. Milagros Barretto introduced evidence that appellant Tirso Reyes had induced her to delay filing action by verbally promising to reconvey the properties received by his deceased wife. she became of age five years later. and not of administration. Wherefore. duly approved by the Court of First Instance of Manila in 1939.

on January 31. should pertain to her and to Helen Garcia in equal shares. 1954. about eighteen years of age and who. The case is once more before us on appeal. devise. named MARIA LUCY CHRISTENSEN (Now Mrs.R. the following clauses which are pertinent to the issue in this case: "3. died leaving a will executed on March 5. . 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. reversed the same on the ground that the validity of the provisions of the will should be governed by Philippine law. The declaration was appealed to this Court. and hence the properties passed to both of them as if the deceased had died intestate. CHRISTENSEN. U. and bequeath unto MARIA HELEN CHRISTENSEN. deceased. that I have but ONE (1) child. Christensen contains.R. whom the testator had expressly recognized in his will as his daughter (natural) and Helen Garcia. Bernard Daney). California. Christensen.S. and this Court. is exhausted. I declare . who is now residing at No. "4. 1964. who was born in the Philippines about twenty-eight years ago. L-11484) In another incident relative to the partition of the deceased’s estate.R. among others. June 30. 1951. who had been judicially declared as such after his death. 665 Rodger Young Village. a citizen of California with domicile in the Philippines. 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. now married to Eduardo Garcia. equivalent to 1/4 of the entire estate. or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitimate of Helen Garcia. Los Angeles. Philippines. 1958 (G. and hereinafter referred to as merely Lucy Duncan). MARIA LUCY CHRISTENSEN DANEY. which legacies have been duly approved by the lower court and distributed to the legatees. No. this time by Lucy Duncan.] IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. No. which said court found to be valid under the law of California. L-24365. from all information I have now resides in Egpit.A. The will was admitted to probate by the Court of First Instance of Davao in its decision of February 28. I give. . and no descendants except my above-named daughter. AZNAR v. and paid to her at the rate of One Hundred Pesos (P100.[G. on the sole question of whether the estate. "7. the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank. 1966. after deducting the legacies. nor has she been at any time adopted by me. MARIA LUCY CHRISTENSEN DUNCAN Edward E.00). ADOLFO C. is not in any way related to me.600). saving only the legacies left in favor of certain other persons. Helen Garcia appealed form the order of approval. No. dated June 30. Philippine Currency. the sum of THREE THOUSAND SIX HUNDRED PESOS (P3. the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor. 1964. wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney. I further declare that I now have no living ascendants. Davao. the trial court approved the project submitted by the executor in accordance with the provisions of the will. 1963. and was affirmed in its decision of February 14. Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon. and who. and returned the case to the lower court with instructions that the partition be made as provided by said law (G. notwithstanding the fact that she was baptized Christensen. L-16749) On October 29. The will of Edward E. . Digos.

." library The trial court ruled. Elizabeth Borton de Treviño.S. is not proved."cralaw virtua1aw library Thus. 854. of Manhattan Beach. then I give. Carol Louise C. while mentioning . that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue. appellant contends that this is not a case of preterition. personal and/or mixed. now residing at No."12. but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. CHRISTENSEN. that there has been preterition of Helen Garcia. or for a cause the truth of which. either by not naming him at all or. remainder. the share of my estate devised to her herein I give. as aforesaid. one-half (1/2) to my well-beloved sister. of whatsoever kind or character. Helen Garcia is entitled only to her legitime. Borton die before my own decease. and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate. California. U. and in that event.. 918."caw virtua1aw library On the other hand. California. and Joseph Raymond Christensen. The preterition or omission of one. remainder and residue of my property. 2124. JOSEPH C.. devise and bequeath to her children. she was in effect defectively disinherited within the meaning of Article 918. and appellee now maintains. of which I may be possessed at my death and which may have come to me from any source whatsoever. and if so terminated. that should my sister Mrs. during her lifetime. Twentieth Street. and bequeath to my daughter. share and share alike. further. California. and residue of my property and estate. that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue. U. but the devises and legacies shall be valid insofar as they are not inofficious.S. Bakersfield. and one-half (1/2) to the children of my deceased brother. and in that event. or to the heirs of any of them who may die before my own decease. then. of Los Angeles.S. although less than the amount of her legitime. I hereby give. or which is not one of those set forth in this Code.A.A. and wheresoever situated. Mrs. devised and bequeathed it to her. Manresa defines preterition as the omission of the heir in the will. then and in that event. real. Article 854 is a reproduction of Article 814 of the Spanish Civil Code. I give. a compulsory heir in the direct line. California. and provided. U. the share of any of the three above named who may predecease me.S. Provided.. BORTON. unto my well-beloved daughter.A. shall annul the institution of heirs insofar as it may prejudice the person disinherited. and Article 906 of Article 815. California. under both Articles 906 and 918. Bernard Daney now residing. if contradicted. of Mexico City.S.. then. 665 Rodger Young Village. which reads: "ART. but left to her a legacy nevertheless. which provides:j "ART. namely: Mrs. CARRIE LOUISE C. to go in equal parts to the descendants of the deceased." Appellant also suggests that considering the provisions of the will whereby the testator expressly denied his relationship with Helen Garcia. Ruggaver. U.A. devise. Carol F. remainder and residue of my property with the same force and effect as if I had originally so given. according to appellant. at No. or all of the compulsory heirs in the direct line. however. Mexico. the said MARIA LUCY CHRISTENSEN DANEY (Mrs. U.A. Disinheritance without a specification of the cause. and. resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil Code. which says: "Any compulsory heir to whom the testator has left by any title less the legitime belonging to him may demand that the same be fully satisfied. whether living at the time of the execution of the will or born after the death of the testator. but is governed by Article 906 of the Civil Code. of Bakersfield. Los Angeles. some. the life interest herein given shall terminate. provided further. share and share alike. all the income from the rest. Barbara Borton Philips. devise and bequeath all the rest. the said MARIA LUCY CHRISTENSEN DANEY the rest. devise and bequeath. shall annul the institution of heir.

It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. gave an affirmative answer to the question. One point deserves to be here mentioned.600. 1895.) The foregoing solution is indeed more in consonance with the expressed wished of the testator in the present case as may be gathered very clearly from the provisions of his will. and the heir could not ask that the institution of heirs be annulled entirely. nor assigning to him some part of the properties. 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.0 — p. 436) and Sanchez Roman (Tomo VI. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime. and April 23. 1932. Et. The decision of this Court in Neri. but only that the legitimate be completed. 441. pursuant to the Roman law. by not instituting him as heir without disinheriting him expressly. Civil Code). that is. because it referred to a will where "the testator left all his property by universal title to the children by his second marriage. Since she became the owner of her share as of the moment of the death of the decedent (Arts. that view was changed by Article 645 of the "Proyecto de Codigo de 1851. for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime. and (that) without expressly disinheriting the children by h is first marriage. unless prior to her decease she should have living issue. we might call attention to the limitations imposed by law upon this kind of substitution. Christensen Helen Garcia is not mentioned as an heir — indeed her status as such is denied — but is given a legacy of P3. Vol. Al. and limited her share to a legacy of P3. He refused to acknowledge Helen Garcia as his natural daughter. 185. according to both Manresa (6 Manresa 7th 3rd. and willed the rest of the estate to other persons. 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.600. pp. The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will cannot be sustained. she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing.him as father. Although no reference to it has been made in the brief for oppositorappellant.00 The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation Company and a certain amount in cash." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia. 1917.600. who alone was expressly recognized by him.00. 937). but left her a legacy of P3. One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. at least." as by legacy." later on copied in Article 906 of our own Code. particularly that which says that it can .. in which event she would inherit in full ownership. v. 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. Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16. son. (6 Manresa. since it is not one of the issues raised before us. Without deciding this point. some of them. That decision is not here applicable. but without referring to the legatee as an heir or even as a relative. 2. he left nothing to them or. 777. otherwise the property will go to the other relatives of the testator named in the will. 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. 774.00 While the classical view. Akutin. a titulo de heredero? In other words. May 25. 74 Phil. is cited by appellees in support of their theory of preterition. It was held that Article 815 applied. etc. 438. be granted to him in his capacity as heir. respectively. These include the stock dividends on the corporate holdings.

approving the project of partition as submitted by the executor. is hereby set aside. 864 Civil Code). Costs against appellees in this instance. . which means that the legitime must descend to the heir concerned in fee simple. is hereby set aside. after deduction all debts and charges. and the case is remanded with instructions to partition the hereditary estate anew as indicated in this decision. by giving the oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime. 1964. WHEREFORE. equivalent to one-fourth (1/4) of the hereditary estate. which shall not include those imposed in the will of the decedent.never burden the legitime (Art. in accordance with Article 908 of the Civil Code. that is. and the case is remanded with instructions to partition as submitted by the executor-appellee. the order of the trial court dated October 29.appellee.

R. Petitioners. it must be observed . such as that of preterition or disinheritance. which is the only provision material to the disposition of this case. A and B. 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. 5. This theory.. ID. May 21.. ID. the whole property of the deceased having been left by universal title to the children of the second marriage. which provides that the institution of heirs shall be annulled and intestate succession should be declared open. No. Upon these facts. accordingly. ID. ] Administration of the estate of Agripino Neri y Chavez. and all are agreed that the present case is not one of disinheritance but of preterition. ID. therefore. The effect. And the remaining provisions contained in said articles concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by article 817.. shall the court annul entirely the institution of heir in favor of A and declare a total intestacy. according to article 814. and a general from a special provision. some of them. instead of construing. and that without expressly disinheriting the children by his first marriage. if adopted. Held: That this is a case of preterition governed by article 814 of the Civil Code.. will result in a complete abrogation of articles 814 and 851 of the Civil Code. and awarding B only the remaining one-half of the strict legitime? If the court does the first. RESPECTIVE SCOPE OF ARTICLES 814. ID. it must not be entirely annulled but merely reduced. AND 851 OF THE CIVIL CODE. With reference to article 814. giving him two-thirds. LEGACIES AND BETTERMENTS SHOULD BE RESPECTED IN SO FAR AS THEY ARE NOT INOFFICIOUS OR EXCESSIVE.. — The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments. or shall it merely refuse the bequest left to A. it applies articles 851 or 817. no legacies or mejoras are provided in the will. 4.. — The following example will make the question clearer: The testator has two legitimate sons.[G. SYLLABUS 1. INSTITUTION OF HEIRS DISTINGUISHED FROM LEGACIES AND BETTERMENTS. IGNACIA AKUTIN AND HER CHILDREN.. the testator left all his property by universal title to the children by his second marriage.. plus one-half of the other third as strict legitime. 47799.. Neither Manresa nor Sanchez Roman nor this court has ever said so. ELEUTERIO NERI ET AL. that is. at least. it applies article 814. however. — The annulment of the institution of heirs in cases of preterition does not always carry with it the ineffectiveness of the whole will. he left nothing to them or. 817. This. Article 817 is merely a general rule inapplicable to specific cases provided by law.. v. ID. aside from the institution of heirs. 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 the findings of fact in this case. DESCENT AND DISTRIBUTION. Respondents. 2. — 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. ID. and in his will he leaves all his property to A. this court would be destroying integral provisions of the Civil Code. ID. If. ID. one-third of free disposal and one-third of betterments. ID. if the second. In the instant case. 3. EFFECT OF PRETERITION. with total preterition of B. of annulling the institution of heirs will be necessarily the opening of a total intestacy. 1943. ID. But article 851 applies only in cases of unfounded disinheritance. would be absolutely meaningless and will never have any application at all. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly. ID. then the provisions of articles 814 and 851 regarding total or partial nullity of the institution...

.. STATUTORY CONSTRUCTION. ID. The first is also different from a betterment which should be made expressly as such (article 828). Again.. In construing several provisions of a particular statute.that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or betterment. 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. — As regards testamentary dispositions in general. — It is clear.. — It is maintained that the word "heredero" under the Civil Code. 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. The only instance of implied betterment recognized by law is where legacies are made which cannot be included in the free portion (article 828). ID. ID. Repeals by implication are not favored by the courts and when there are two acts upon the same subject. are entitled to inherit in accordance with the law of intestate succession. And this is contrary to the most elementary rule of statutory construction.. ID. It confuses form with substance. such meaning of its words and phrases as has been intended by the framers thereof shall be adopted. 497). such construction shall be adopted as will give effect to all.. the testamentary disposition containing the institution of heirs should be not only reduced but annulled in its entirety and all the forced heirs. then it shall be deemed repealed. if. 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). and when general and particular provisions are inconsistent. (Act No.) 8.. S. namely. ID. secs. in construing article 814.. ID. including the omitted ones. in this connection. 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 is thus evident that. therefore. ID. its specific purpose completely defeated. ID. ID. This conclusion is erroneous.. ID. National City Bank.. that although article 814 contains two different provisions. otherwise it is in force. 9. 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. 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. In such instance. ID.. ID. 296 U. Institution of heirs is a bequest by universal title of property that is undetermined. "HEREDERO" UNDER THE CIVIL CODE AND "HEIR" UNDER THE CODE OF CIVIL PROCEDURE. ID... 190. effect should be given to both if possible (Posadas v. It must be observed. But again an institution of heirs cannot be taken as a legacy. Legacy refers to specific property bequeathed by a particular or special title. Its other provision regarding the validity of legacies and betterments if not inofficious is a mere reiteration of the general rule contained in other provisions (articles 815 and 817) and signifies merely that it also applies in cases of preterition. ID.. the special object of said article would be destroyed. further. ID. is not synonymous with the term "heir" under the Code of Civil Procedure. If thus construed it is inconsistent with the provisions of the Code of Civil Procedure. which is made the main and specific subject of article 814. should his acceptance be pure and simple. 287 and 288. according to article 814.. the institution of heirs therein dealt with is to be treated as legacies or betterments. but this in no wise can prevent a bequest from being made by universal title as is in substance the subject matter of article 814 of the Civil Code. and in that wise the special rule therein established would be rendered nugatory.. It should be borne in mind. that article 814 refers to two different things which are the two different objects of its two different provisions. 6. it may also . ID. the institution of heirs in a case of preterition. ID.. — 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. that in construing and applying a provision of the Civil Code.. the latter shall prevail over the former. its special purpose is to establish a specific rule concerning a specific testamentary provision. ID. 7. ID.

that Celerina and Rosario received their shares in the estate left by their father Agripino Neri Chaves. Agripino. the trial Court found: "It is contended. Getulia (who died a little less than eight years before the death of her father Agripino Neri. left by the deceased. but this may have a bearing only upon the question as to when succession becomes effective and can in no way destroy the fact that succession may still be by universal or special title. leaving seven children). But clause 8 of the will is invoked wherein the testator made the statement that the children by his first marriage had already received their shares in his property excluding what he had given them as aid during their financial troubles and the money they had borrowed from him which he condoned in the will.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. Rosario and the children of Getulia had received from the testator no property whatsoever. and 18. Agapita. the effect would not be the annulment of the institution of heirs but simply the reduction of the bequest made to them. With respect to Agripino and Agapita. Agripino. its nullity as provided in article 814 still applies there being nothing inconsistent with it in the Code of Civil Procedure. with preterition of the children by his first marriage. 19-A and 19-B. this is an . as a donation from his father.000. even assuming that there has been a preterition. The children of the first marriage are Eleuterio. the herein respondents." It is true that Eleuterio appears to have received. the trial Court said that "it does not appear clear. therefore. parcel of land No. As to money advances. clear that Eleuterio has received his share out of the properties left by his father. the trial court said that "it is not."cralaw virtua1aw library And with respect to Rosario and Celerina. the parcels of land which they have occupied. in the amount of P500 as appears in Exhibits 14 and 15. and (2) that. and to that effect Ignacia Akutin has been appointed special administratrix for the purpose of instituting such action. 17. This is a case where the testator in his will left all his property by universal title to the children by his second marriage. 1. the trial Court found that "neither Getulia nor her heirs received any share of the properties. and. but the question of whether there has been a donation or not is apparently left for decision in an independent action. The findings of the trial court and those of the Court of Appeals are contrary to respondents’ first contention. Celerina in the amount of P120 as appears in Exhibits 19. personal. Getulia. therefore. It appears that Nemesio Chaves is indebted in the amount of P1. were not a part of the estate of the latter."cralaw virtua1aw library Concerning Getulia who died about eight years before the death of her father Agripino Neri. 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. As to Eleuterio. This Court annulled the institution of heirs and declared a total intestacy. real or in cash. therefore."cralaw virtua1aw library This is in connection with the property. according to the trial Court."cralaw virtua1aw library From these findings of the trial Court it is clear that Agapita. Rosario and Celerina. "are a part of public land which had been occupied by Agripino Neri Chaves. however. in the amount of P155 as appears in Exhibits 16. real or personal. that the children of Agripino Neri Chaves in his first marriage received money from their father. Since. Since a bequest may still be made by universal title and with preterition of forced heirs. 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. the herein petitioners. furthermore. 4.

6373 hectares is now assessed in the names of some of the children of the first marriage.issue of fact tried by the Court of First Instance. Agripino Neri y Chaves abandoned the said land and that later on some of the children of the first marriage possessed it. some of them. We conclude. whether living at the execution of the will or born after the death of the testator. And the Court of Appeals added that "apparently. but the person. 1 was alleged by the children of the second marriage to have been advanced by the testator to the children by his first marriage. we can rely only upon the findings of fact made by the latter Court. "The preterition of the widower or widow does not annul the institution. for otherwise the children by the second marriage would not lay a claim on it. did not receive any share of the property of her father. for as shown on Tax Declaration No. but the Court of Appeals belied this claim. Exhibit 11-g. in their discussion as to the effect of preterition. which are as follows: "Since all the parcels that corresponded to Agripino Neri y Chaves are now in the administrator’s possession. it is clear that the property of the deceased has remained intact and that no portion thereof has been given to the children of the first marriage. Upon the second question propounded in the motion for reconsideration. and that without expressly disinheriting the children by his first marriage. he left nothing to them or. "It is stated by the court and practically admitted by the appellants that a child of the first marriage named Getulia. but the legacies and betterments shall be valid in so far as they are not inofficious. or her heirs after her death. a case of preterition governed by article 814 of the Civil Code. The preterition of one or of all of the forced heirs in the direct line. This is. shall annul the institution of heirs. they confuse article 814 with articles 817 and 851 and other articles of the Civil Code. Apparently. 9395. "It is not true. the children of both marriages." It is true that in the decision of the Court of Appeals there is also the following paragraph: "As regards that large parcel of land adjoining parcel No. Exhibit 11-g. The large parcel of land adjoining parcel No. the testator left all his property by universal title to the children by his second marriage. 2. which provides that the institution of heirs shall be annulled and intestate succession should be declared open. 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. These three articles read: "ART. thereby acquiring title and interest therein by virtue of occupation and not through inheritance. the owners of the property are Agapita Neri de Chaves y Hermanos. accordingly. "that this parcel containing 182. and we are reviewing the decision of the Court of Appeals upon a question of law regarding that issue." which is another way of stating that the property could not have been advanced by the testator to the children by the first marriage. omitted shall retain all . it is contended that after the court had denied the registration thereof. respondents seem to agree that article 814 of the Civil Code is the law applicable but. It is not true that this parcel containing 182." says that Court. at least. as appears in the inventory filed in court. that according to the findings of fact made by the Court of Appeals. 814. for as shown on Tax Declaration No. 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. therefore." that is.6373 hectares is now assessed in the names of some of the children of the first marriage. 1. 9395."cralaw virtua1aw library 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 owners of the property are Agapita Neri de Chaves y Hermanos.

plus one-half of the other third as strict legitime. 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. adquieren derecho a todo. according to article 814. such as that of preterition or disinheritance."cralaw virtua1aw library "ART. starts expounding the meaning of the law with an illustration. But article 851 applies only in cases of unfounded disinheritance. is not shown. that is. And after stating that the Spanish jurisprudence has not as yet decided squarely the question. and 837 of this Code. then the arguments in support of the distinction. and all are agreed that the present case is not one of disinheritance but of preterition." He then proceeds to comment upon the wisdom of the distinction made by law. Disinheritance made without a statement of the cause. the property bequeathed by universal title to the instituted heirs should not be merely reduced according to article 817. If. and in his will he leaves all his property to A. 835. These comments should be read with care if we are to avoid misunderstanding. giving two views thereon. shall annul the institution of heirs in so far as it is prejudicial to the disinherited person. aside from the institution of heirs. shall we annul entirely the institution of heir in favor of A and declare a total intestacy. "If the forced heirs omitted die before the testator.the rights granted to him by articles 834. one third of free disposal and one-third of betterments. but instead. intestate succession should be opened in connection therewith under article 814. however. Article 817 is merely a general rule inapplicable to specific cases provided by law. desheredados. with an allusion to two resolutions of the Spanish Administrative Direction. no legacies or mejoras are provided in the will. but the legacies. or for a cause the truth of which. therefore. the reason being that article 814. solo les corresponde un tercio o dos tercios. the whole property of the deceased having been left by universal title to the children of the second marriage. He says that in case of preterition (article 814). with total preterition of B. segun el caso. the institution shall become operative. rige con preferencia al 817. A and B. and awarding B only the remaining one-half of the strict legitime? If we do the first. 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. such testamentary provisions shall be effective and the legacies and mejoras shall be respected in so far as they are not inofficious or excessive. and other testamentary dispositions shall be valid in so far as they are not prejudicial to said legitime. the nullity of the institution of heirs is total."cralaw virtua1aw library The following example will make the question clearer: The testator has two legitimate sons. the annulment of the institution of heirs in cases of preterition does not always carry with it the ineffectiveness of the whole will. whereas in case of disinheritance (article 851). The effect. Manresa. or which is not one of those stated in the four following articles. if the second. we apply articles 851 or 817. if contested. that is. 851. 836. one in favor of article 814 and another evasive. or shall we merely refuse the bequest left to A. Neither Manresa nor Sanchez Roman nor this Court has ever said so. of annulling the institution of heirs will be necessarily the opening of a total intestacy. In the instant case. we apply article 814. 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. "como especial en el caso que le motiva. and lastly a possible defense against said arguments. for instance. the nullity is partial. "Preteridos. he concludes that the construction which may rightly be given to article 814 is that in case of preterition. ." "ART. giving him two-thirds. betterments. He further makes it clear that in cases of preterition. Upon these facts. Of course. 817. He first lays the view contrary to the distinction made by law. in so far as the institution affects the legitime of the disinherited heirs.

This theory. then the provisions of articles 814 and 851 regarding total or partial nullity of the institution. As regards testamentary dispositions in general. namely. it must be observed that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or betterment. secs. It is maintained that the word "heredero" under the Civil Code. is not synonymous with the term "heir" under . 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. 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. Institution of heirs is a bequest by universal title of property that is undetermined.) 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. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly. instead of construing. the special object of said article would be destroyed. which is the only provision material to the disposition of this case. we would be destroying integral provisions of the Civil Code. 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. that although article 814 contains two different provisions. Its other provision regarding the validity of legacies and betterments if not inofficious is a mere reiteration of the general rule contained in other provisions (articles 815 and 817) and signifies merely that it also applies in cases of preterition. will result in a complete abrogation of articles 814 and 851 of the Civil Code. it must not be entirely annulled but merely reduced. It is thus evident that. And this is contrary to the most elementary rule of statutory construction. But again an institution of heirs cannot be taken as a legacy. if adopted. are entitled to inherit in accordance with the law of intestate succession. and in that wise the special rule therein established would be rendered nugatory. The first is also different from a betterment which should be made expressly as such (article 828). including the omitted ones.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. such construction shall be adopted as will give effect to all. Legacy refers to specific property bequeathed by a particular or special title. the latter shall prevail over the former. its specific purpose completely defeated. It is clear. (Act No. that article 814 refers to two different things which are the two different objects of its two different provisions. the institution of heirs in a case of preterition. accordingly. which is made the main and specific subject of article 814. 190. 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. The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments. if. In construing several provisions of a particular statute. and a general from a special provision. With reference to article 814. 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). in construing article 814. Thus. 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. would be absolutely meaningless and will never have any application at all. therefore. It should be borne in mind. In such instance. the institution of heirs therein dealt with is to be treated as legacies or betterments. 287 and 288. and when general and particular provisions are inconsistent. further. The only instance of implied betterment recognized by law is where legacies are made which cannot be included in the free portion (article 828). its special purpose is to establish a specific rule concerning a specific testamentary provision.

in this connection. and it appears that such omission was made by mistake. 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. 2141. such meaning of its words and phrases as has been intended by the framers thereof shall be adopted. then it shall be deemed repealed. 755 and 756 which read: "SEC. seven hundred and fifty-eight. seven hundred and fifty. there were in the Code of Civil Procedure sections Nos. This conclusion is erroneous. 755. section 1 of which reads as follows: "Sections seven hundred and fifty-five. should his acceptance be pure and simple.. There can be no possible doubt. or for issue of a deceased child. 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.) Among the provisions of the Civil Code which are thus expressly restored to full force are undoubtedly articles 814 and 851. — When a child of a testator is born after the making of a will. Article 1080 of the Civil Code that is also invoked deserves no consideration except for the observation that it has no relevancy in the instant case."cralaw virtua1aw library "SEC. — When a testator omits to provide in his will for any of his children. shall have the same share in the estate of the testator as if he had died intestate. but this may have a bearing only upon the question as to when succession becomes effective and can in no way destroy the fact that succession may still be by universal or special title. 756. Furthermore. and the share of such child shall be assigned to him as in cases of intestate estates. or the issue of such child.the Code of Civil Procedure. such child shall have the same share in the estate of the testator as if he had died intestate. otherwise it is in force. such child. 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. If thus construed it is inconsistent with the provisions of the Code of Civil Procedure. to be assigned to him as in the case of intestate estates. It confuses form with substance."cralaw virtua1aw library It is these provisions of the Code of Civil Procedure that have affected substantially articles 814 and 851 of the Civil Code. 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. but this in no wise can prevent a bequest from being made by universal title as is in substance the subject-matter of article 814 of the Civil Code. its nullity as provided in article 814 still applies there being nothing inconsistent with it in the Code of Civil Procedure. Share of child born after making will. and seven hundred and sixty of Act Numbered One hundred and ninety. entitled ’An Act providing a Code of Procedure in Civil Actions and Special Proceedings in the Philippine Islands are hereby repealed and such provisions of the Civil Code as may have been amended or repealed by said sections are hereby restored to full force and effect. but they have been expressly repealed by Act No. Repeals by implication are not favored by the courts and when there are two acts upon the same subject. or accident. that in construing and applying a provision of the Civil Code. unless it is apparent from the will that it was the intention of the testator that no provision should be made for such child. Since a bequest may still be made by universal title and with preterition of forced heirs. and no provision is therein made for him. seven hundred and fifty-seven. Share of child or issue of child omitted from will." (Italics ours. therefore. effect should be given to both if possible (Posadas v. National City Bank. 296 U. 497). 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. Again. It must be observed. .six. that those two articles are in force. S.

the thought of the testator that the children by his first marriage should not receive less than the children by his second marriage. Preterition. And specially is this true in the instant case where the testator omitted the children by his first marriage upon the erroneous belief that he had given them already more shares in his property than those given to the children by his second marriage. This is also in consonance with the presumptive intention of the testator. Eleazar (37 Off. under such circumstances.. generally speaking. 332). We have never lost sight of the ruling laid down in that case which has been reiterated in Eleazar v. In the second case. p. but of placing him and the other forced heirs upon the basis of equality.. And this is contrary to the manifest intention of the testator. we will note that the doctrine stands on facts which are different from the facts in the present case. In the Escuin case. Motion for reconsideration is hereby denied. in the Eleazar case the deceased left all his property to a friend with total preterition of his father and wife. 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. therefore. 1782). the testator would at least give his friend the portion of free disposal. and to that effect is the decision of this Court sought to be reconsidered. Without reconsidering the correctness of the ruling laid down in these two cases. Gaz. . the total nullity of the testamentary disposition would have the effect. the deceased left all his property to his natural father (not a forced heir) and his wife with total preterition of an acknowledged natural child. It may fairly be presumed that. It was. 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. is due merely to mistake or inadvertence without which the testator may be presumed to treat alike all his children. Escuin (11 Phil. not of depriving totally the instituted heir of his share in the inheritance.Our attention is directed to the case of Escuin v.

1985 (Rollo. October 27. is hereby ordered to dismiss the petition in Special Proceedings No. 1960 was written in Bisaya (Rollo. 27) with a translation in English (Rollo.chanrobles law library After the petition was set for hearing in the lower court on June 25. the will provided: "THIRD: All my shares that I may receive from our properties. p. 591-ACEB. Flores. Filipino. Concepcion. 1984 petitioner Constantino Acain filed in the Regional Trial Court of Cebu City Branch XIII. Said motion was denied by the trial judge.[G. Fernandez. Quirina and Laura were instituted as heirs. p. The will allegedly executed by Nemesio Acain on February 17. and the appointment of a certain Atty. 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." Obviously. lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN. Cebu City. The will contained provisions on burial rites. houses there in Bantayan and here in Cebu City which constitute my share shall be given by me to his children. namely: Anita. p. IAC. 1984 the oppositors (respondents herein Virginia A. Respondent Intermediate Appellate Court granted private respondents’ petition and ordered the trial court to . 591-A-CEB (Rollo. FERNANDEZ and ROSA DIONGSON This is a petition for review on certiorari of the decision * of respondent Court of Appeals in AC-G. ACAIN v. No special pronouncement is made as to costs. Concepcion. docketed as Special Proceedings No. In case my brother Segundo Acain predeceases me. widower.R. a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary. Quirina. on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio. 1985. On the disposition of the testator’s property. house. now Court of Appeals. (Rollo. Branch XIII (Cebu City). 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. Ignacio G. Constantino. 1985 (Rollo. it is the children of Segundo who are claiming to be heirs. Villagonzalo as the executor of the testament. 29). Segundo pre-deceased Nemesio. No. 591-A-CEB and its Resolution issued on October 23. After the denial of their subsequent motion for reconsideration in the lower court. pp. VIRGINIA A. Flores and Jose and his sisters Anita. (2) he is merely a universal heir and (3) the widow and the adopted daughter have been preterited. with Constantino as the petitioner in Special Proceedings No." library The antecedents of the case. SP No. all the money properties. of legal age and presently residing at 357-C Sanciangko Street. payment of debts. 1987. 108-109) are as follows:chanrob1es virtual 1aw library On May 29. p. Thus. Antonio and Jose all surnamed Acain. based on the summary of the Intermediate Appellate Court.] CONSTANTINO C. 72706. 108) ordering the dismissal of the petition in Special Proceedings No. de Acain) filed a motion to dismiss on the following grounds: (1) the petitioner has no legal capacity to institute these proceedings. 05744 promulgated on August 30. lands. 72) denying respondents’ (petitioners herein) motion for reconsideration. 31) submitted by petitioner without objection raised by private respondents.R. Laura. a legally adopted daughter of the deceased and the latter’s widow Rosa Diongson Vda. 591-A-CEB. p.

or all of the compulsory heirs in the direct line. 854. Respondents’ Memorandum was filed on September 22. Fernandez. No. 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. 1986 (Rollo. Court of Appeals. though mentioned. be admitted to probate. 153). Civil Code) However. (A) The petition filed in AC-G. 1986. (C) The will of Nemesio Acain is valid and must therefore. they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Maninang v. but the devisees and legacies shall be valid insofar as they are not inofficious. Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator.dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. Article 854 of the Civil Code provides: "Art." and does not apply to private respondents who are not compulsory heirs in the direct line. explicitly expressed in his will. 1986. 157). (Art. 1986 the Court resolved to give due course to the petition (Rollo. This is what matters and should be inviolable. p. 1985 (Rollo. The pivotal issue in this case is whether or not private respondents have been preterited." library 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. pp. Nuguid. 854. the institution shall be effectual. Respondents’ Comment was filed on June 6. p. shall annul the institution of heir. whether living at the time of the execution of the will or born after the death of the testator. p. Insofar as the widow is concerned. If the omitted compulsory heirs should die before the testator. 591-ACEB for probate of the will of Nemesio Acain. without prejudice to the right of representation. 603. petitioner filed this present petition for the review of respondent Court’s decision on December 18. 6). On August 11. 17 SCRA 450 [1966]. It is therefore unconstitutional and ineffectual. or. Stated otherwise. (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. No. The preterition or omission of one. the same thing cannot be said of the other respondent Virginia A.R. petitioner has the legal interest and standing to file the petition in Sp. and (G) Article 854 of the New Civil Code is a bill of attainder. there is no preterition even if she is omitted from the inheritance. known as the Child and Youth Welfare Code. (F) As an instituted heir. 591-A-CEB. (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. their omission shall not annul the institution of heirs. some. although she is a compulsory heir. His motion for reconsideration having been denied. the Memorandum for petitioner was filed on September 29. (D) DICAT TESTATOR ET ERIT LEX. Proc. It cannot be denied that she was totally omitted and preterited in . even if the surviving spouse is a compulsory heir. No. for she is not in the direct line. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under the premises.D. Under Article 39 of P. whose legal adoption by the testator has not been questioned by petitioner (Memorandum for the Petitioner. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line. What the testator says will be the law. 8-9). 114 SCRA 478 [1982]). Petitioner raises the following issues (Memorandum for Petitioner.

amounts to a declaration that nothing at all was written. Nuguid). In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate. Comendador Construction Corporation v. Villanueva. the opening of a total intestacy (Neri v. 591-A-CEB must be dismissed. Sayo (118 SCRA 590 [1982]). As stated by respondent Court. as already stated above. 129 SCRA 522 [1984]. Civil Code). Court of Appeals. Carefully worded and in clear terms. Petitioner is not the appointed executor. supra. Vda. 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. the due execution thereof. he appears to have an interest in the will as an heir. 128 SCRA 308 [1984]. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. mejora o donacion" (Manresa. and Bautista v. de Caldito v. Court of Appeals. 139 SCRA 206 [1985]). Nuguid. As a general rule certiorari cannot be a substitute for appeal. 591-CEB is for the probate of a will. We now deal with another matter. At the outset. Leonidas. supra. 74 Phil. supra. Hence. Sumilang v. Akutin. 110 SCRA 465 [1981]. . Nuguid. petitioner is in effect not an heir of the testator. The effect of annulling the institution of heirs will be.D. 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. this is a clear case of preterition of the legally adopted child. however. Court of Appeals. Cayetano v. Sarmiento. speedy and adequate remedy in the course of law (D. 185 [1943]) except that proper legacies and devises must. Court of Appeals. 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. Ramagosa. Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado. 114 SCRA 478 [1982]. intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs. Segundo. However. 125 SCRA 137 [1983]). and Nepomuceno v. 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. except insofar as the legitimes are concerned. 17 SCRA 449 [1966]. 117 SCRA 573 [1982]. Neither can it be denied that they were not expressly disinherited. the general rule is that the probate court’s authority is limited only to the extrinsic validity of the will. Ramagosa. except when the questioned order is an oppressive exercise of judicial authority (People v. 138 SCRA 587 [1985]). Court of Appeals. necessarily. the testator’s testamentary capacity and the compliance with the requisites or solemnities prescribed by law. Maninang v. No legacies or 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. 21 SCRA 1369/1967). 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. or in the will. 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. Maninang v. 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. Special Proceedings No. Co Chuan Seng v. They are. de Bacang v.the will of the testator and that both adopted child and the widow were deprived of at least their legitime. 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 . Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. 114 SCRA [19821). The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. be respected. as cited in Nuguid v.

effort. The remedies of certiorari and prohibition were properly availed of by private respondents. In Nuguid v. Respondent Judge allowed the probate of the will. Where circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved. Leonidas. Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preterition. It would have meant a waste of time. effort. Nuguid. 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. The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. After all there exists a justiciable controversy crying for solution. The Court upheld the probate court’s order of dismissal. In the instant case private respondents filed a motion to dismiss the petition in Sp. 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. nothing will be gained. however. is not inflexible and absolute. the Court harkens to the rule . in the event of probate or if the court rejects the will. p. 158). Court of Appeals. the defendants had the right to resort to the more speedy. the probate court should meet the issue. (Vda. and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion. 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. Result: waste of time. On the contrary. induced by practical considerations. The Court said: "We pause to reflect. supra). 591-CEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings. In Cayetano v." In Saguimsim v. Court of Appeals. p. It was denied by the trial court in an order dated January 21. 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. If the case were to be remanded for probate of the will. committed by the trial court in not dismissing the case. expense. plus added futility. Leonidas. this Court ruled that where the grounds for dismissal are indubitable. expense. (Nepomuceno v. (2) he is merely a universal heir. amounting to lack of jurisdiction. 32).The rule. supra. supra) and even assuming the existence of the remedy of appeal. 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. supra). 109). Under exceptional circumstances. 1985 (Rollo. Nuguid. this litigation will be protracted. and (3) the widow and the adopted daughter have been preterited (Rollo. supra). 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. Nuguid v. de Bacang v. A subsequent motion for reconsideration was denied by the trial court on February 15. p. On appeal the Supreme Court upheld the decision of the probate court. supra. Proceedings No. 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. 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. Court of Appeals. plus added anxiety. And for aught that appears in the record. Thus. supra one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will.

a petition for certiorari may be entertained. Court of Appeals. SO ORDERED. 1985 are hereby AFFIRMED. (Maninang v.that in the broader interests of justice. law library PREMISES CONSIDERED. particularly where appeal would not afford speedy and adequate relief. 1985 and its Resolution dated October 23. . the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals promulgated on August 30. supra).