Neri vs.

Akutin
Facts: The testator, Agripino Neri died on December 12 1931 leaving behind from
his first marriage, six children and by his second marriage with Ignacia Akutin 5
children. In Agapitos In Agripino Neri's testament, which was admitted to probate
on March 21, 1932, he willed that his children by the first marriage shall have no
longer any participation in his estate, as they had already received their
corresponding shares during his lifetime. At the hearing for the declaration of heirs,
the trial court found, contrary to what the testator had declared in his will, that all
his children by the first and second marriages intestate heirs of the deceased
without prejudice to one-half of the improvements introduced in the properties
during the existence of the last conjugal partnership, which should belong to Ignacia
Akutin.
Issue: Whether the children from the first marriage considered as intestate heirs of
Agripino without prejudice to Ignacias share from their conjugal partnership
Held: Yes.
Appellants,maintain that the case is one of voluntary preterition of four of the
children by the first marriage, and of involuntary preterition of the children by the
deceased Getulia, also of the first marriage, and is thus governed by the provisions
of article 814 of the Civil Code, which read in part as follows:
The preterition of one or all of the forced heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall
void the institution of heir; but the legacies and betterments shall be valid, in so far
as they are not inofficious.
Preterition consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited.(Cf. 6
Manresa, 346.) In the instant case, while the children of the first marriage were
mentioned in the will, they were not accorded any share in the heriditary property,
without expressly being disinherited. It is, therefore, a clear case of preterition as
contended by appellants. The omission of the forced heirs or anyone of them,
whether voluntary or involuntary, is a preterition if the purpose to disinherit is not
expressly made or is not at least manifest.
Except as to "legacies and betterments" which "shall be valid in so far as they are
not inofficious" (art. 814 of the Civil Code), preterition avoids the institution of heirs
and gives rise to intestate succession. (Art. 814, Civil Code; Decisions of the
Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In the instant
case, no such legacies or betterments have been made by the testator. "Mejoras" or
betterments must be expressly provided, according to articles 825 and 828 of the
Civil Code, and where no express provision therefor is made in the will, the law

would presume that the testator had no intention to that effect. (Cf. 6 Manresa,
479.) In the will here in question, no express betterment is made in favor of the
children by the second marriage; neither is there any legacy expressly made in their
behalf consisting of the third available for free disposal. The whole inheritance is
accorded the heirs by the second marriage upon the mistaken belief that the heirs
by the first marriage have already received their shares. Were it not for this
mistake, the testator's intention, as may be clearly inferred from his will, would have
been to divide his property equally among all his children.