Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 72706 October 27, 1987 CONSTANTINO C. ACAIN, petitioner, vs. HON. INTERMEDIATE APPE ATE COURT !T"#r$ S%ec#&' C&(e( D#)#(#o*+, ,IRGINIA A. -ERNANDE. &*$ ROSA DIONGSON, respondents.

PARAS, J.: This is a petition for review on certiorari of the decision / of respondent. Court of Appeals in AC- .R. !P No. "#$%% pro&ul'ated on Au'ust (", )*+# ,Rollo, p. )"+- orderin' the dis&issal of the petition in !pecial Proceedin's No, #*) ACEB and its Resolution issued on .ctober /(, )*+# ,Rollo, p. $/- den0in' respondents1 ,petitioners herein- &otion for reconsideration.

The dispositive portion of the 2uestioned decision reads as follows3 45ERE6.RE, the petition is hereb0 'ranted and respondent Re'ional Trial Court of the !eventh 7udicial Re'ion, Branch 8999 ,Cebu Cit0-, is hereb0 ordered to dis&iss the petition in !pecial Proceedin's No. #*) ACEB No special pronounce&ent is &ade as to costs. The antecedents of the case, based on the su&&ar0 of the 9nter&ediate Appellate Court, now Court of Appeals, ,Rollo, pp. )"+-)"*- are as follows3 .n Ma0 /*, )*+% petitioner Constantino Acain filed on the Re'ional Trial Court of Cebu Cit0 Branch 8999, a petition for the probate of the will of the late Ne&esio Acain and for the issuance to the sa&e petitioner of letters testa&entar0, doc:eted as !pecial Proceedin's No. #*) ACEB ,Rollo, p. /*-, on the pre&ise that Ne&esio Acain died leavin' a will in which petitioner and his brothers Antonio, 6lores and 7ose and his sisters Anita, Concepcion, ;uirina and <aura were instituted as heirs. The will alle'edl0 e=ecuted b0 Ne&esio Acain on 6ebruar0 )$, )*>" was written in Bisa0a ,Rollo, p. /$- with a translation in En'lish ,Rollo, p. ()- sub&i1tted b0 petitioner without ob?ection raised b0 private respondents. The will contained provisions on burial rites, pa0&ent of debts, and the appoint&ent of a certain Att0. 9'nacio . @illa'onAalo as the e=ecutor of the testa&ent. .n the disposition of the testator1s propert0, the will provided3 T59RB3 All &0 shares that 9 &a0 receive fro& our properties. house, lands and &one0 which 9 earned ?ointl0 with &0 wife Rosa Bion'son shall all be 'iven b0 &e to &0 brother !E CNB. ACA9N 6ilipino, widower, of le'al a'e and presentl0 residin' at (#$-C !ancian':o !treet, Cebu Cit0. 9n case &0 brother !e'undo Acain pre-deceased &e, all the &one0 properties, lands, houses there in Banta0an and here in Cebu Cit0 which constitute &0 share shall be 'iven to &e to his children, na&el03 Anita, Constantino, Concepcion, ;uirina, laura, 6lores, Antonio and 7ose, all surna&ed Acain. .bviousl0, !e'undo pre-deceased Ne&esio. Thus it is the children of !e'undo who are clai&in' to be heirs, with Constantino as the petitioner in !pecial Proceedin's No. #*) ACEB After the petition was set for hearin' in the lower court on 7une /#, )*+% the oppositors ,respondents herein @ir'inia A. 6ernandeA, a le'all0 adopted dau'hter of tile deceased and the latter1s widow Rosa Bion'son @da. de Acain filed a &otion to dis&iss on the followin' 'rounds for the petitioner has no le'al capacit0 to institute these proceedin'sD ,/he is &erel0 a universal heir and ,(- the widow and the adopted dau'hter have been pretirited. ,Rollo, p. )#+-. !aid &otion was denied b0 the trial ?ud'e.

After the denial of their subse2uent &otion for reconsideration in the lower court, respondents filed with the !upre&e Court a petition for certiorari and prohibition with preli&inar0 in?unction which was subse2uentl0 referred to the 9nter&ediate Appellate Court b0 Resolution of the Court dated March )), )*+# ,Me&orandu& for Petitioner, p. (D Rollo, p. )#*-. Respondent 9nter&ediate Appellate Court 'ranted private respondents1 petition and ordered the trial court to dis&iss the petition for the probate of the will of Ne&esio Acain in !pecial Proceedin's No. #*) ACEB 5is &otion for reconsideration havin' been denied, petitioner filed this present petition for the review of respondent Court1s decision on Bece&ber )+, )*+# ,Rollo, p. >-. Respondents1 Co&&ent was filed on 7une >, )*+> ,Rollo, p. )%>-. .n Au'ust )), )*+> the Court resolved to 'ive due course to the petition ,Rollo, p. )#(-. Respondents1 Me&orandu& was filed on !epte&ber //, )*+> ,Rollo, p. )#$-D the Me&orandu& for petitioner was filed on !epte&ber /*, )*+> ,Rollo, p. )$$-. Petitioner raises the followin' issues ,Me&orandu& for petitioner, p. %-3 ,A- The petition filed in AC- .R. No. "#$%% for certiorari and prohibition with preli&inar0 in?unction is not the proper re&ed0 under the pre&isesD ,B- The authorit0 of the probate courts is li&ited onl0 to in2uirin' into the e=trinsic validit0 of the will sou'ht to be probated and it cannot pass upon the intrinsic validit0 thereof before it is ad&itted to probateD ,C- The will of Ne&esio Acain is valid and &ust therefore, be ad&itted to probate. The preterition &entioned in Article +#% of the New Civil Code refers to preterition of Eco&pulsor0 heirs in the direct line,E and does not appl0 to private respondents who are not co&pulsor0 heirs in the direct lineD their o&ission shall not annul the institution of heirsD ,B- B9CAT TE!TAT.R ET MER9T <E8. 4hat the testator sa0s will be the lawD ,E- There &a0 be nothin' in Article +#% of the New Civil Code, that su''ests that &ere institution of a universal heir in the will would 'ive the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator in the case at bar, e=plicitl0 e=pressed in his will. This is what &atters and should be in violable. ,6- As an instituted heir, petitioner has the le'al interest and standin' to file the petition in !p. Proc. No. #*) ACEB for probate of the will of Ne&esio Acain and , - Article +#% of the New Civil Code is a bill of attainder. 9t is therefore unconstitutional and ineffectual. The pivotal issue in this case is whether or not private respondents have been pretirited. Article +#% of the Civil Code provides3 Art. +#%. The preterition or o&ission of one, so&e, or all of the co&pulsor0 heirs in the direct line, whether livin' at the ti&e of the e=ecution of the will or born after the death of the testator, shall annul the institution of heirD but the devisees and le'acies shall be valid insofar as the0 are notD inofficious. 9f the o&itted co&pulsor0 heirs should die before the testator, the institution shall he effectual, without pre?udice to the ri'ht of representation.

Preterition consists in the o&ission in the testator1s will of the forced heirs or an0one of the& either because the0 are not &entioned therein, or, thou'h &entioned, the0 are neither instituted as heirs nor are e=pressl0 disinherited ,Nu'uid v. Nu'uid, )$ !CRA %#" F)*>>GD Maninan' v. Court of Appeals, ))% !CRA %$+ F)*+/G-. 9nsofar as the widow is concerned, Article +#% of the Civil Code &a0 not appl0 as she does not ascend or descend fro& the testator, althou'h she is a co&pulsor0 heir. !tated otherwise, even if the survivin' spouse is a co&pulsor0 heir, there is no preterition even if she is o&itted fro& the inheritance, for she is not in the direct line. ,Art. +#%, Civil code- however, the sa&e thin' cannot be said of the other respondent @ir'inia A. 6ernandeA, whose le'al adoption b0 the testator has not been 2uestioned b0 petitioner ,.Me&orandu& for the Petitioner, pp. +-*-. Cnder Article (* of P.B. No. >"(, :nown as the Child and Houth 4elfare Code, adoption 'ives to the adopted person the sa&e ri'hts and duties as if he were a le'iti&ate child of the adopter and &a:es the adopted person a le'al heir of the adopter. 9t cannot be denied that she has totall0 o&itted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their le'iti&e. Neither can it be denied that the0 were not e=pressl0 disinherited. 5ence, this is a clear case of preterition of the le'all0 adopted child. Pretention annuls the institution of an heir and annul&ent throws open to intestate succession the entire inheritance includin' Ela porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacionE Maniesa as cited in Nu'uid v. Nu'uid, supraD Maninan' v. Court of Appeals, ))% !CRA F)*+/G-. The onl0 provisions which do not result in intestac0 are the le'acies and devises &ade in the will for the0 should stand valid and respected, e=cept insofar as the le'iti&es are concerned. The universal institution of petitioner to'ether with his brothers and sisters to the entire inheritance of the testator results in totall0 abro'atin' the will because the nullification of such institution of universal heirs-without an0 other testa&entar0 disposition in the will-a&ounts to a declaration that nothin' at all was written. Carefull0 worded and in clear ter&s, Article +#% of the Civil Code offers no leewa0 for inferential interpretation ,Nu'uid v. Nu'uid-, supra. No le'acies nor devises havin' been provided in the will the whole propert0 of the deceased has been left b0 universal title to petitioner and his brothers and sisters. The effect of annullin' the E9nstitution of heirs will be, necessaril0, the openin' of a total intestac0 ,Neri v. A:utin, $% Phil. )+# F)*%(G- e=cept that proper le'acies and devises &ust, as alread0 stated above, be respected. 4e now deal with another &atter. 9n order that a person &a0 be allowed to intervene in a probate proceedin' he &ust have an interest iii the estate, or in the will, or in the propert0 to be affected b0 it either as e=ecutor or as a clai&ant of the estate and an interested part0 is one who would be benefited b0 the estate such as an heir or one who has a clai& a'ainst the estate li:e a creditor ,!u&ilan' v. Ra&a'osa, /) !CRA )(>*I)*>$-. Petitioner is not the appointed e=ecutor, neither a devisee or a le'atee there bein' no &ention in the testa&entar0 disposition of an0 'ift of an individual ite& of personal or real propert0 he is called upon to receive ,Article $+/, Civil Code-. At the outset, he appears to have an interest in the will as an heir, defined under Article $+/ of the Civil Code as a person called to the succession either b0 the provision of a will or b0 operation of law. 5owever, intestac0 havin' resulted fro& the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. 5e has no le'al standin' to petition for the probate of the will left b0 the deceased and !pecial Proceedin's No. #*) A-CEB &ust be dis&issed. As a 'eneral rule certiorari cannot be a substitute for appeal, e=cept when the 2uestioned order is an oppressive e=ercise of ? ?udicial authorit0 ,People v. @illanueva, ))" !CRA %># F)*+)GD @da. de Caldito v. !e'undo, ))$ !CRA #$( F)*+/GD Co Chuan !en' v. Court of Appeals, )/+ !CRA ("+ F)*+%GD and Bautista v. !ar&iento, )(+ !CRA #+$ F)*+#G-. 9t is a=io&atic that the re&edies of certiorari and prohibition are not available where the petitioner has the re&ed0 of appeal or so&e other plain, speed0 and ade2uate re&ed0 in the course of law ,BB Co&endador Construction Corporation v. !a0o ,))+ !CRA #*" F)*+/G-. The0 are, however, proper re&edies to correct a 'rave abuse of discretion of the trial court in not dis&issin' a case where the dis&issal is founded on valid 'rounds ,@da. de Bacan' v. Court of Appeals, )/# !CRA )($ F)*+(G-. !pecial Proceedin's No. #*) ACEB is for the probate of a will. As stated b0 respondent Court, the 'eneral rule is that the probate court1s authorit0 is li&ited onl0 to the e=trinsic validit0 of the will, the due e=ecution thereof, the testator1s testa&entar0 capacit0 and the co&pliance with the re2uisites or sole&nities prescribed b0 law. The intrinsic validit0 of the will nor&all0 co&es onl0 after the Court has declared that the will has been dul0 authenticated. !aid court at this sta'e of the proceedin's is not called upon to rule on the intrinsic validit0 or efficac0 of the provisions of the will ,Nu'uid v. Nu'uid, )$ !CRA %%* F)*>>GD !u&ilan' v. Ra&a'osa, supraD Maninan' v. Court of Appeals, ))% !CRA %$+ F)*+/GD Ca0etano v. <eonides, )/* !CRA #// F)*+%GD and Nepo&uceno v. Court of Appeals, )(* !CRA /"> F)*+#G-.

The rule, however, is not infle=ible and absolute. Cnder e=ceptional circu&stances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will ,Nepo&uceno v. Court of Appeals, supra-. 9n Nu'uid v. Nu'uid the oppositors to the probate &oved to dis&iss on the 'round of absolute preteriton The probate court actin' on the &otion held that the will in 2uestion was a co&plete nullit0 and dis&issed the petition without costs. .n appeal the !upre&e Court upheld the decision of the probate court, induced b0 practical considerations. The Court said3 4e pause to reflect. 9f the case were to be re&anded for probate of the will, nothin' will be 'ained. .n the contrar0, this liti'ation will be protracted. And for au'ht that appears in the record, in the event of probate or if the court re?ects the will, probabilit0 e=ists that the case will co&e up once a'ain before us on the sa&e issue of the intrinsic validit0 or nullit0 of the will. Result3 waste of ti&e, effort, e=pense, plus added an=iet0. These are the practical considerations that induce us to a belief that we &i'ht as well &eet head-on the issue of the validit0 of the provisions of the will in 2uestion. After all there e=ists a ?usticiable controvers0 cr0in' for solution. 9n Saguimsim v. Lindayag ,> !CRA +$% F)*>/G- the &otion to dis&iss the petition b0 the survivin' spouse was 'rounded on petitioner1s lac: of le'al capacit0 to institute the proceedin's which was full0 substantiated b0 the evidence durin' the hearin' held in connection with said &otion. The Court upheld the probate court1s order of dis&issal. 9n Cayetano v. Leonides, supra one of the issues raised in the &otion to dis&iss the petition deals with the validit0 of the provisions of the will. Respondent 7ud'e allowed the probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner the respondent ?ud'e should have denied its probate outri'ht. 4here circu&stances de&and that intrinsic validit0 of testa&entar0 provisions be passed upon even before the e=trinsic validit0 of the will is resolved, the probate court should &eet the issue. ,Nepo&uceno v. Court of Appeals, supraD Nu'uid v. Nu'uid, supra-. 9n the instant case private respondents filed a &otion to dis&iss the petition in !p. Proceedin's No. #*) ACEB of the Re'ional Trial Court of Cebu on the followin' 'rounds3 ,)- petitioner has no le'al capacit0 to institute the proceedin'sD ,/- he is &erel0 a universal heirD and ,(- the widow and the adopted dau'hter have been preterited ,Rollo, p. )#+-. 9t was denied b0 the trial court in an order dated 7anuar0 /), )*+# for the reason that Ethe 'rounds for the &otion to dis&iss are &atters properl0 to be resolved after a hearin' on the issues in the course of the trial on the &erits of the case ,Rollo, p. (/-. A subse2uent &otion for reconsideration was denied b0 the trial court on 6ebruar0 )#, )*+# ,Rollo, p. )"*-. 6or private respondents to have tolerated the probate of the will and allowed the case to pro'ress when on its face the will appears to be intrinsicall0 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 e=ercise in futilit0. 9t would have &eant a waste of ti&e, effort, e=pense, plus added futilit0. The trial court could have denied its probate outri'ht or could have passed upon the intrinsic validit0 of the testa&entar0 provisions before the e=trinsic validit0 of the will was resolved ,Ca0etano v. <eonides, supraD Nu2uid v. Nu'uid, supra. The re&edies of certiorari and prohibition were properl0 availed of b0 private respondents. Thus, this Court ruled that where the 'rounds for dis&issal are indubitable, the defendants had the ri'ht to resort to the &ore speed0, and ade2uate re&edies of certiorari and prohibition to correct a 'rave abuse of discretion, a&ountin' to lac: of ?urisdiction, co&&itted b0 the trial court in not dis&issin' the case, ,@da. de Bacan' v. Court of Appeals, supra- and even assu&in' the e=istence of the re&ed0 of appeal, the Court har:ens to the rule that in the broader interests of ?ustice, a petition for certiorari &a0 be entertained, particularl0 where appeal would not afford speed0 and ade2uate relief. ,Maninan' Court of Appeals, supra-. PREM9!E! C.N!9BEREB, the petition is hereb0 BEN9EB for lac: of &erit and the 2uestioned decision of respondent Court of Appeals pro&ul'ated on Au'ust (", )*+# and its Resolution dated .ctober /(, )*+# are hereb0 A669RMEB. !. .RBEREB. Teehankee, C. ., !ap, "ernan, #arvasa, $utierre%, r., Cru%, "eliciano, $ancayco, &adilla, 'idin, Sarmiento and Cortes, ., concur.

Se%&r&te O%#*#o*(

ME ENCIO0HERRERA, J., concurrin'3 9 concur in the result on the basic proposition that preterition in this case was b0 &ista:e or inadvertence. To &0 &ind, an i&portant distinction has to be &ade as to whether the o&ission of a forced heir in the will of a testator is b0 &ista:e or inadvertence, or voluntar0 or intentional. 9f b0 &ista:e or inadvertence, there is true preterirton and total intestac0 results. The reason for this is the Einabilit0 to deter&ine how the testator would have distributed his estate if none of the heirs had been o&itted or for'otten ,An .utline of Civil <aw, 7.B.<. Re0es and R.C. Puno, @ol. 999, p. #%-. The re2uisites of preterition are3 ). The heir o&itted is a forced heir ,in the direct line-D /. The o&&ission is by mistake or thru an oversight. (. The o&ission is co&plete so that the forced heir received nothin' in the will. ,))) Padilla, Civil Code Annotated, )*$( Edition, pp. //%-//#- ,Parenthetical addendu& supplied-. .n the other hand, if the o&ission is intentional, the effect would be a defective disinheritance covered b0 Article *)+ of the Civil Code in which case the institution of heir is not wholl0 void but onl0 insofar as it pre?udices the le'iti&e of the person disinherited. !tated otherwise. the nullit0 is partial unli:e in true preterition where the nullit0 is total. Pretention is presu&ed to be onl0 an involuntar0 o&issionD that is, that if the testator had :nown of the e=istence of the co&pulsor0 heir at the ti&e of the e=ecution of the will, he would have instituted such heir. .n the other hand, if the testator atte&pts to disinherit a co&pulsor0 heir, the presu&ption of the law is that he wants such heir to receive as little as possible fro& his estate. ,999 Tolentino, Civil Code, )*$( Edition, pp. )$%-)$#-. 9n the case at bar, there see&s to have been &ista:e or in advertence in the o&ission of the adopted dau'hter, hence, &0 concurrence in the result that total intestac0 ensued.

Se%&r&te O%#*#o*(

ME ENCIO0HERRERA, J., concurrin'3 9 concur in the result on the basic proposition that preterition in this case was b0 &ista:e or inadvertence. To &0 &ind, an i&portant distinction has to be &ade as to whether the o&ission of a forced heir in the will of a testator is b0 &ista:e or inadvertence, or voluntar0 or intentional. 9f b0 &ista:e or inadvertence, there is true preterirton and total intestac0 results. The reason for this is the Einabilit0 to deter&ine how the testator would have distributed his estate if none of the heirs had been o&itted or for'otten ,An .utline of Civil <aw, 7.B.<. Re0es and R.C. Puno, @ol. 999, p. #%-.

The re2uisites of preterition are3 ). The heir o&itted is a forced heir ,in the direct line-D /. The o&&ission is by mistake or thru an oversight. (. The o&ission is co&plete so that the forced heir received nothin' in the will. ,))) Padilla, Civil Code Annotated, )*$( Edition, pp. //%-//#- ,Parenthetical addendu& supplied-. .n the other hand, if the o&ission is intentional, the effect would be a defective disinheritance covered b0 Article *)+ of the Civil Code in which case the institution of heir is not wholl0 void but onl0 insofar as it pre?udices the le'iti&e of the person disinherited. !tated otherwise. the nullit0 is partial unli:e in true preterition where the nullit0 is total. Pretention is presu&ed to be onl0 an involuntar0 o&issionD that is, that if the testator had :nown of the e=istence of the co&pulsor0 heir at the ti&e of the e=ecution of the will, he would have instituted such heir. .n the other hand, if the testator atte&pts to disinherit a co&pulsor0 heir, the presu&ption of the law is that he wants such heir to receive as little as possible fro& his estate. ,999 Tolentino, Civil Code, )*$( Edition, pp. )$%-)$#-. 9n the case at bar, there see&s to have been &ista:e or in advertence in the o&ission of the adopted dau'hter, hence, &0 concurrence in the result that total intestac0 ensued. -oot*ote( J Penned b0 7ustice 7ose A. R. Melo and concurred in b0 7ustices Mila'ros A. Nathanael P. Be Pano, 7r. er&an and