CONSTANTINO C. ACAIN, petitioner, vs. HON.

INTERMEDIATE APPELLATE COURT (Third Special

Cases Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.
27 October 1987 | J. Paras [Digest by Pretz V.]
NATURE: Review of IAC decision denying probate of the will of Nemesio Acain and nullifying the same
due to the preterition of a compulsory direct heir, the adopted daughter Virginia Fernandez
FACTS: Nemesio Herrera died with a will. His nephew CONSTANTINO ACAIN, petitioner herein, the son
of his brother Segundo Acain, filed a petition for the probate of Nemesios will. Constantino avers that he
has title to the will of Nemesio, pursuant to the ff. provision in said will:
THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife Rosa
Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C
Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there
in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino,
Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

The private respondents herein, Nemesios widow Rosa Diongson and their adopted daughter, Virginia
Fernandez filed a MOTION TO DISMISS THE PETITION before the probate court, averring: 1) that the
will should be void, having preterited the private respondents, Nemesios compulsory heirs (NCC 854);
and 2) that Constantino does not have a legal capacity to petition the court for probate of the will, not
being a validly instituted heir. (NOTE: Petitioners NEVER questioned the validity of Virginias adoption)
CFI: Denied the MtD and proceeded with the probate proceedings
IAC: Reversed the CFI and declared nullity of said will due to preterition of the private respondents
On Petition for review before the SC, the petitioners argue that NCC 854 pertains only to compulsory
heirs IN THE DIRECT LINES. The widow, although a COMPULSORY HEIR, is not in the DIRECT LINE,
not being an ASCENDANT or DESCENDANT in the DIRECT LINE.
ISSUE: WON the will should be avoided due to preterition
HELD: Yes, but only due to the preterition of the adopted daughter
RATIO: (PLEASE READ NCC 854) Insofar as the widow is concerned, Article 854 of the Civil Code may
not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated
otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted
from the inheritance, for she is not in the direct line. However, the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by
petitioner. Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives
to the adopted person the same rights and duties as if he were a legitimate child of the adopter and
makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and
preterited in the will of the testator and that both adopted child and the widow were deprived of at least
their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear
case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire
inheritance including the free portion of the estate, except as to those legacies and devises which are not
inofficious. In the case, however, no legacies nor devises were provided in the will, the whole property of
the deceased has been left by universal title to petitioner and his brothers and sisters. Hence, the effect of
the wills annulment is to open the estate entirely to intestate succession.
AS TO PETITIONERS CAUSE OF ACTION
In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii
the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the
estate and an interested party is one who would be benefited by the estate such as an heir or one who
has a claim against the estate like a creditor. Petitioner is not among those enumerated. The petitioner

lost his claim against the estate after the will has been annulled and the estate entirely opened to
intestate succession.
CONCURRING OPINION of J. MELENCIO-HERRERA: Nag-agree lang siya na may intestate
succession kasi lahat daw ng requisites for NCC 854 to apply were met in the case. The requisites are as
follows:
1. The heir omitted is a forced heir (in the direct line);
2. The omission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing in the will.