Page 1 of 76

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-20234 December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents.

Judgments; Probate courts; Error of law does not affect jurisdiction, of probate court nor conclusive
effect of its decision.—An error of law committed in admitting a joint will to probate does not affect the
jurisdiction of the probate court nor the conclusive effect of its final decision.

Same; Same; Probate decree of joint will affects only share of deceased spouse.—A final probate decree
of a joint will of husband and wife affects only the share of the deceased spouse and cannot include the
disposition of said joint will, in so far as the estate of the latter spouse is concerned, must be, on her
death, reexamined and adjudicated de novo.

Wills; Effects of validity of joint will as to share of wife who dies later than the husband.—Where a
husband and wife executed a joint will and upon the death of the husband said will was admitted to
probate by a final decree of the court although erroneous, and the wife dies later, it is held that said first
decree of probate affects only the estate of the husband but cannot affect the estate of the wife,
considering that a joint will is a separate will of each testator; and a joint will being prohibited by law, the
estate of the wife should pass upon her death to her intestate heirs and not to the testamentary heir,
unless some other valid will is shown to exist in favor of the latter or unless the testamentary heir is the
only heir of said wife.
 Page 2 of 76

Philip M. Alo and Crispin M. Menchavez for petitioners.

Nicolas Jumapao for respondents.

REYES, J.B.L., J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-G.R.
No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and ordering the
dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of Appeals (Petition,
Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed a
joint last will and testament in the local dialect whereby they willed that "our two parcels of land
acquired during our marriage together with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in
our union, Manuela Rebaca being married to Nicolas Potot", and that "while each of the testators is
yet living, he or she will continue to enjoy the fruits of the two lands aforementioned", the said two
parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio
Lugo, municipality of Borbon, province of Cebu. Bernabe dela Serna died on August 30, 1939, and
the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required by law and there being no opposition,
heard the evidence, and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara
legalizado el documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la
Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio
tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho documents; y
habido consideracion de la cuantia de dichos bienes, se decreta la distribucion sumaria de los
mismos en favor de la logataria universal Manuela Rebaca de Potot previa prestacion por parte de la
misma de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones que se
 Page 3 of 76

presentare contra los bienes del finado Bernabe de la Serna de los años desde esta fecha" (Act Esp.
499, Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14,
1952, another petition for the probate of the same will insofar as Gervasia was concerned was filed
on November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First Instance of
Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear,
for the hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In
the matter of the Probate of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void, for being
executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art.
818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed,
on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the making of a will
jointly by two or more persons either for their reciprocal benefit or for the benefit of a third person.
However, this form of will has long been sanctioned by use, and the same has continued to be used;
and when, as in the present case, one such joint last will and testament has been admitted to
probate by final order of a Court of competent jurisdiction, there seems to be no alternative except
to give effect to the provisions thereof that are not contrary to law, as was done in the case
of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of
the joint will therein mentioned, saying, "assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of
First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his last
will and testament despite the fact that even then the Civil Code already decreed the invalidity of joint
wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil
 Page 4 of 76

Code). The error thus committed by the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision, however erroneous. A final judgment rendered on a petition for the probate of
a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil.
156); and public policy and sound practice demand that at the risk of occasional errors judgment of
courts should become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy
Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963
Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree
admitting his will to probate. The contention that being void the will cannot be validated, overlooks that
the ultimate decision on Whether an act is valid or void rests with the courts, and here they have spoken
with finality when the will was probated in 1939. On this court, the dismissal of their action for partition
was correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the
probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna. It could
not include the disposition of the share of the wife, Gervasia Rebaca, who was then still alive, and over
whose interest in the conjugal properties the probate court acquired no jurisdiction, precisely because
her estate could not then be in issue. Be it remembered that prior to the new Civil Code, a will could not
be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be, on
her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each
testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is one
prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the properties in
question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
 Page 5 of 76

Therefore, the undivided interest of Gervasia Rebaca should p ass upon her death to her heirs intestate,
and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or
unless she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not make
them valid when our Civil Codes consistently invalidated them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5, Civ. Code of
1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-R is
affirmed. No Costs.

Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal, Bengzon, J.P., and
Zaldivar, JJ., concur.
 Page 6 of 76

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-29300 June 21, 1978

PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the deceased

Pedro Gallanosa being substituted by his legal heirs, namely his above-named widow and his
children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren named IMELDA TECLA
GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA, son
of Pedro D.H. GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon and
FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS, EMILIA
G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO
R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R.
HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and
RODOLFO R. HITOSIS, represented by their legal guardian and mother LOURDES RELUCIO VDA. DE
HITOSIS, PETRONA HITOSIS-BALBIDO, MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN
HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES
FRANCHE, RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES,
SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors
MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented
by their legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-PENAFLOR, GENOVEVA
HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA
 Page 7 of 76

HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA and LEONA HITOSIS-
GABITO GAMBA, respondents.

Settlement of Estate; Wills; Res Judicata; Prescription; An action instituted in 1967 for the annulment of
a last will and testament duly probated way back in 1939 will not prosper.—What the plaintiffs seek is the
“annulment” of a last will and testament duly probated in 1939 by the lower court itself. The proceeding
is coupled with an action to recover the lands adjudicated to the defendants by the same court in 1943 by
virtue of the probated will, which action is a resuscitation of the complaint of the same parties that the
same court dismissed in 1952. It is evident from the allegations of the complaint and from defendants’
motion to dismiss that plaintiffs’ 1967 action is barred by res judicata, a double-barrelled defense, and by
prescription, acquisitive and extinctive, or by what are known in the jus civile and the jus gentium as
usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974 61
SCRA 284).

Same; Same; Pleadings and Practice. The Rules of Court does not sanction an action for “annulment” of a
will.—Our procedural law does not sanction an action for the “annulment” of a will. In order that a will
may take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The
probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of
Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249). The testamentary
proceeding is a special proceeding for settlement of the testators estate. A special proceeding is distinct
and different from an ordinary action (Secs. 1 and 2, Rule 2 and sec. 1, Rule 72. Rules of Court).

Same; Same; Res Judicata; Consequences of due probate of a will.—The 1939 decree of probate is
conclusive as to the due execution or formal validity of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec.
1, Rule 75, Rules of Court; Last par. of art. 828, Civil Code). That means that the testator was of sound and
disposing mind at the time when he executed the will and was not acting under duress, menace, fraud, or
undue influence; that the will was signed by him in the presence of the required number of witnesses,
and that the will is genuine and is not a forgery. Accordingly, these facts cannot again be questioned in a
 Page 8 of 76

subsequent proceeding, not even in a criminal action for the forgery of the will. (3 Moran’s Comments on
the Rules of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448). After the finality of the
allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore (Santos vs.
De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).

Same; Same; Same; Decree of adjudication in a testate proceeding is binding on the whole world.—On
the other hand, the 1943 decree of adjudication rendered by the trial court in the testate proceeding for
the settlement of the estate of Florentino Hitosis, having been rendered in a proceeding in rem, is, under
the abovequoted section 49(a), binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re
Estate of Johnson, 39 Phil. 156; De la Cerha vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Henry
Reissmann & Co., 68 Phil. 142).

Same; Same; Same; Judgment; Grounds for annulment of judgment after period for filing petition for
relief expires.—After the period for seeking relief from a final order or judgment under Rule 38 of the
Rules of Court has expired, a final judgment or order can be set aside only on the grounds of (a) lack of
jurisdiction or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or
collateral fraud. In the latter case, the period for annulling the judgment is four years from the discovery
of the fraud (2 Moran’s Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs.
Villanueva, 106 Phil. 1159).

Same; Same; Contracts; Prescription; The Civil Law rule that an action for declaration of inexistence of a
contract does not prescribe cannot be applied to last wills and testaments.—To hurdle over the obstacle of
prescription, the trial court, naively adopting the theory of plaintiffs counsel, held that the action for the
recovery of the lands had not prescribed because the rule in Article 1410 of the Civil Code, that “the
action or defense for the declaration of the inexistence of a contract does not prescribe”, applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills and testaments.

Haile Frivaldo for petitioners.

 Page 9 of 76

Joaquin R Mitosis for private respondents.

AQUINO, J.:

In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders of
respondent Judge dated May 3 trial June 17, 1968, wherein he reconsidered his order of January 10,
1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the Court of First
Instance of Sorsogon.

The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated
value of P50,000, trial claims for damages exceeding one million pesos. The undisputed facts are as
follows:

1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years old.
He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he was survived by his brother, Leon
Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister,
Teodora, were all dead.

2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of
Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will, Florentino
bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla
predecease him, as was the case, his one-half share would be assigned to the spouses Pedro Gallanosa
and Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the
care of Florentino; he had treated Pedro as his foster child, and Pedro has rendered services to Florentino
and Tecla. Florentino likewise bequeathed his separate properties consisting of three parcels of abaca
land and parcel of riceland to his protege (sasacuyang ataman), Adolfo Fortajada, a minor.

3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his surviving
brother, Leon, trial his nephews trial nieces. After a hearing, wherein the oppositors did not present any
 Page 10 of 76

evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939,
admitted the will to probate and appointed Gallanosa as executor. Judge Rivera specifically found that the
testator executed his last will "gozando de buena salud y facultades mentales y no obrando en virtud de
amenaza, fraude o influencia indebida."

4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada, submitted a
project of partition covering sixty-one parcels of land located in various parts of Sorsogon, large cattle
trial several pieces of personal property which were distributed in accordance with Florentino's will. The
heirs assumed the obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for Adolfo
Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition was approved by Judge
Doroteo Amador in his order of March 13, 1943, thus confirming the heirs' possession of their respective
shares. The testator's legal heirs did not appeal from the decree of probate trial from the order of
partition trial distribution.

5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters
instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the recovery of
the said sixty-one parcels of land. They alleged that they, by themselves or through their predecessors-in-
interest, had been in continuous possession of those lands en concepto de dueño trial that Gallanosa
entered those lands in 1951 trial asserted ownership over the lands. They prayed that they be declared
the owners of the lands trial that they be restored to the possession thereof. They also claimed damages
(Civil Case No. 696).

6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of bar by
the prior judgment in the probate proceeding. Judge Anatolio C. Mañalac dismiss the complaint on the
ground of res judicata in his order of August 14, 1952 wherein he said:

It also appears that the plaintiffs and/or their predecessors-in-interest had intervened in the testate
proceedings in Civil Case No. 3171 of this Court for- the purpose of contesting the probate of the will of
(the) late Florentino Hitosis; trial had their opposition prospered trial the will denied of probate, the
 Page 11 of 76

proceedings would have been converted into one of intestacy (Art. 960 Civil Code) and the settlement
of the estate of the said deceased would have been made in accordance with the provisions of law
governing legal or intestate succession ... , in which case the said plaintiffs, as the nearest of kin or legal
heirs of said Florentino Mitosis, would have succeeded to the ownership and possession of the 61
parcels of land in question forming part of his estate (art. 1003, Civil Code).

However, the derision of the Court was adverse to them, when it their opposition trial ordered the
probate of his will. From this decision (Annex K) legalizing the said will, the oppositors did not file any
appeal within the period fixed by law, despite the fact that they were duly notified thereof, so that the
said decision had become final trial it now constitutes a bar to any action that the plaintiffs may
institute for the purpose of a redetermination of their rights to inherit the properties of the late
Florentino Hitosis.

In other words, the said decision of this Court in Civil Case special ) No. 3171, in which the herein
plaintiffs or their predecessors-in-interest had intervened as parties oppositors, constitutes a final
judicial determination of the issue that the said plaintiffs, as ordinary heirs, have no legal rights to
succeed to any of the properties of the late Florentino Hitosis; consequently, their present claim to the
ownership trial possession of the 61 parcels of land in question is without any legal merit or basis.

7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest. But
the same plaintiffs or oppositors to the probate of the will, trial their heirs, with a persistence befitting a
more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of Civil Case No.
696 trial twenty-eight years after the probate of the will another action in the same court against the
Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis trial and for
the recovery of the same sixty-one parcels of land. They prayed for the appointment of a receiver.

8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit, caused
the execution trial simulation of the document purporting to be the last will trial testament of Florentino
Hitosis. While in their 1952 complaint the game plaintiffs alleged that they were in possession of the
 Page 12 of 76

lands in question, in their 1967 complaint they admitted that since 1939, or from the death of Florentino
Hitosis, the defendants (now the petitioners) have been in possession of the disputed lands (Par. XIV of
the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which was transferred to Branch I in
Sorsogon town where Special Proceeding No. 3171 trial Civil Case No. 696 were decided trial which was
re-docketed as Civil Case No. 2233).

9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was
dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge.
granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration of
his order setting aside that dismissal order.

The petitioners or the defendants below contend in this certiorari case that the lower court has no
jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No. 696
trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967 complaint.

The issue is whether, under the facts set forth above, the private respondents have a cause of action the
"annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-one parcels of land
adjudicated under that will to the petitioners.

We hold that the lower court committed a grave abuse of discretion in reconsideration its order of
dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696 which is the same
as the instant 1967 case.

A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to
conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted.

What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the
lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the
 Page 13 of 76

defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of The
complaint of the same parties that the same court dismissed in 1952.

It is evident from the allegations of the complaint trial from defendants' motion to dismiss that plaintiffs'
1967 action is barred by res judicata, a double-barrelled defense, trial by prescription, acquisitive trial
extinctive, or by what are known in the jus civile trial the jus gentium as usucapio, longi temporis
possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61 SCRA 284).

Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may take
effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The probate of
the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court;
Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).

The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A special
proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72,
Rules of Court).

We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is a
two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial distribution in Special
Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower court
constitute bars by former judgment, Rule 39 of the Rules of Court provides:

SEC. 49. Effect of judgments. — The effect of a judgment or final order rendered by a court or judge of
the Philippines, having jurisdiction to pronounce the judgment or order, may be as follows:

(a) In case of a judgment or order against a specific thing, or in respect to the probate of a will or the
administration of the estate of a deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to another, the judgment or order is
conclusive upon the title to the thing the will or administration, or the condition, status or relationship
 Page 14 of 76

of the person; however, the probate of a will or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate;

(b) In other cases the judgment or order is, with respect to the matter directly adjudged or as to any
other matter that could have been raised in relation thereto, conclusive between the parties trial their
successors in interest by title subsequent to the commencement of the action or special proceeding,
litigating of the same thing trial under the same title trial in the same capacity;

(c) In any other litigation between the same parties or their successors in interest, that only is deemed
to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or
which was actually trial necessarily included therein or necessary thereto.

The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec. 625,
Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).

That means that the testator was of sound trial disposing mind at the time when he executed the will and
was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the
presence of the required number of witnesses, and that the will is genuine trial is not a forgery.
Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a criminal
action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition, p. 395;
Manahan vs. Manahan, 58 Phil. 448).

After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).

In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the
decree of probate had become final. That case is summarized as follows:
 Page 15 of 76

Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His will was admitted to probate without
objection. No appeal was taken from said order. It was admitted that due trial legal notice had been
given to all parties. Fifteen months after the date of said order, a motion was presented in the lower
court to have said will declared null and void, for the reason that fraud had been practised upon the
deceased in the making of his will.

Held: That under section 625 of Act No. 190, the only time given parties who are displeased with the
order admitting to probate a will, for an appeal is the time given for appeals in ordinary actions; but
without deciding whether or not an order admitting a will to probate will be opened for fraud, after the
time allowed for an appeal has expired, when no appeal is taken from an order probating a will, the
heirs can not, in subsequent litigation in the same proceedings, raise questions relating to its due
execution. The probate of a will is conclusive as to its due execution trial as to the testamentary
capacity of The testator. (See Austria vs. Heirs of Ventenilla. 99 Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate proceeding
for the settlement of the estate of Florentino Hitosis, having been rendered in a proceeding in rem, is
under the abovequoted section 49(a), binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In
re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry
Reissmann & Co., 68 Phil. 142).

It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to private
respondents' complaint, The 1952 order of dismissal rendered by Judge Mañalac in Civil Case No. 696, a
judgment in personam was an adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It
constitutes a bar by former judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L-29689.
April 14, 1978).

The plaintiffs or private respondents did not even bother to ask for the annulment of the testamentary
proceeding trial the proceeding in Civil Case No. 696. Obviously, they realized that the final adjudications
 Page 16 of 76

in those cases have the binding force of res judicata and that there is no ground, nor is it timely, to ask for
the nullification of the final orders trial judgments in those two cases.

It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at
the risk of occasional errors, judgments of courts should become final at some definite date fixed by
law. Interest rei publicae ut finis sit litum. "The very object for which the courts were constituted was to
put an end to controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Peñalosa vs. Tuason, 22
Phil, 303; De la Cerna vs. Potot, supra).

After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court has
expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction or lack of
due process of law or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the
latter case, the period for annulling the judgment is four years from the discovery of the fraud (2 Moran's
Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159).

To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs'
counsel, held that the action for the recovery of the lands had not prescribed because the rule in article
1410 of the Civil Code, that "the action or defense for the declaration of the inexistence of a contract does
not prescribe", applies to wills.

That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The trial
court trial plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 0. G. 4410, allegedly decided
by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give
efficacy to void contracts, a ruling elevated to the category of a codal provision in article 1410.
The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains to verify the
misrepresentation of plaintiffs' counsel that the Dingle case was decided by this Court. An elementary
knowledge of civil law could have alerted the trial court to the egregious error of plaintiffs' counsel in
arguing that article 1410 applies to wills.
 Page 17 of 76

WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set aside trial its
order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.

Concepcion, Jr., J., is on leave.

 Page 18 of 76

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO, respondents.

Succession; Wills; Jurisdiction; The fact that the probate court declared a devise made in a will null and
void will be sustained where no useful purpose will be served by requiring the filing of a separate civil action
and restricting the court only to the issue of extrinsic validity of the will.—We are of the opinion that in
view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to
withdraw the petition f or probate (which the lower court assumed to have been filed with the
petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even
before its formal validity had been established. The probate of a will might become an idle ceremony if on
its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v.
Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang v. Ramagosa, L-23135, December 26, 1967,
21 SCRA 1369; Cacho v. Udan, L-19996, April 30, 1965, 13 SCRA 693).

Same; Same; Same; Same.—We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears
in the record, in the event of probate or if the court rejects the will, probability exists that the case will
 Page 19 of 76

come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste
of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity 01 the provisions of the will in
question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there
exists a justiciable controversy crying f or solution.

Same; Same; A devise given by a married man estranged from his wife for 22 years prior to his death, to
a woman with whom he has been living for said period of time is void.—Moreover, the prohibition in Article
739 of the Civil Code is against the making of a donation between persons who are living in adultery or
concubinage. It is the donation which becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted
he was disposing the properties to a person with whom he had been living in concubinage.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals
(now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10,
1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December
28, 1982 denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him
at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of
Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and
of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo
Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and
only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain
 Page 20 of 76

Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been
estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact,
on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were
married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs,
namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free
portion thereof to herein petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and
our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally
and properly entitled to inherit from me; that while I have been estranged from my above-named wife
for so many years, I cannot deny that I was legally married to her or that we have been separated up to
the present for reasons and justifications known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I
declare and avow to be entitled to my love and affection, for all the things which she has done for me,
now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did
comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the
law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned
previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the
deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for
the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging
inter alia that the execution of the Will was procured by undue and improper influence on the part of the
petitioner; that at the time of the execution of the Will, the testator was already very sick and that
petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and
thus, letters testamentary should not be issued to her.
 Page 21 of 76

On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16,
1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying
the probate of the will. The respondent court declared the Will to be valid except that the devise in favor
of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of
the Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the
devise in favor of the appellant which is declared null and void. The properties so devised are instead
passed on in intestacy to the appellant in equal shares, without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical
Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision be
changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to
the appellees in equal shares, without pronouncement as to costs." The motion was granted by the
respondent court on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent
court in a resolution dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in excess of its
jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn,
it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner.
 Page 22 of 76

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon
and decided in the probate proceedings but in some other proceedings because the only purpose of the
probate of a Will is to establish conclusively as against everyone that a Will was executed with the
formalities required by law and that the testator has the mental capacity to execute the same. The
petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of
the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a
separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity
of the testamentary provision in the Will in favor of the person with whom the testator was allegedly
guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself expressly
admits indubitably on its face the meretricious relationship between the testator and the petitioner and
the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary evidence, merits the
application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr.
v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit that the
admission of the testator of the illicit relationship between him and the petitioner put in issue the legality
of the devise. We agree with the respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it
went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner
null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination
and resolution of the extrinsic validity of the Will. The rule is expressed thus:

xxx xxx xxx

 Page 23 of 76

... It is elementary that a probate decree finally and definitively settles all questions concerning
capacity of the testator and the proper execution and witnessing of his last Will and testament,
irrespective of whether its provisions are valid and enforceable or otherwise. (Fernandez v.
Dimagiba, 21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic
validity thereof. The testators testamentary capacity and the compliance with the formal requisites or
solemnities prescribed by law are the only questions presented for the resolution of the court. Any
inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or
legacy is premature.

xxx xxx xxx

True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one
thing; the validity of the testamentary provisions is another. The first decides the execution of the
document and the testamentary capacity of the testator; the second relates to descent and distribution
(Sumilang v. Ramagosa, 21 SCRA 1369)

xxx xxx xxx

To establish conclusively as against everyone, and once for all, the facts that a will was executed with
the formalities required by law and that the testator was in a condition to make a will, is the only
purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The judgment in
such proceedings determines and can determine nothing more. In them the court has no power to pass
upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy
is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is
not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will.
 Page 24 of 76

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how
valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the
intrinsic validity of the testamentary provisions would be superfluous.

Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452)
passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's authorization) the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity had been established. The
probate of a will might become an Idle ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare
with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996,
April 30, 1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are
agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the
testator had the mental capacity to execute his Will. The petitioner states that she completely agrees with
the respondent court when in resolving the question of whether or not the probate court correctly denied
the probate of Martin Jugo's last Will and Testament, it ruled:
 Page 25 of 76

This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision
in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On
the contrary, this litigation will be protracted. And for aught that appears in the record, in the record,
in the event of probate or if the court rejects the will, 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. Result, waste of time,
effort, expense, plus added anxiety. 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.
(Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a
justiciable controversy crying for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper court
in a separate action for that purpose simply because, in the probate of a will, the court does not ordinarily
look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the time of the
donation;

(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;
 Page 26 of 76

(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the
donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in
the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to
testamentary provisions.

In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's
death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom
he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar
Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the
petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He
stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the
eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned
previous marriage.

There is no question from the records about the fact of a prior existing marriage when Martin Jugo
executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible
marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage
before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was
48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally
married to the testator.
 Page 27 of 76

The records do not sustain a finding of innocence or good faith. As argued by the private respondents:

First. The last will and testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to
petitioner by the deceased testator at the start of the proceedings.

Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife,
as already married, was an important and specific issue brought by the parties before the trial court,
and passed upon by the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to
present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of
August 1, 1982, pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of petitioner on
the point.

Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious
relationship of his brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the
inception of the case.

Confronted by the situation, the trial court had to make a ruling on the question.
 Page 28 of 76

When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery
or concubinage', it was a finding that petitioner was not the innocent woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer
the following analysis:

FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where
neither she nor the testator ever resided. If there was nothing to hide from, why the concealment' ? Of
course, it maybe argued that the marriage of the deceased with private respondent Rufina Gomez was
likewise done in secrecy. But it should be remembered that Rufina Gomez was already in the family
way at that time and it would seem that the parents of Martin Jugo were not in favor of the marriage so
much so that an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo,
TSN of August 18, 1975, pp. 29-30)

SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That
would be in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3).
Petitioner married the testator only on December 5, 1952. There was a space of about 30 years in
between. During those 30 years, could it be believed that she did not even wonder why Martin Jugo did
not marry her nor contact her anymore after November, 1923 - facts that should impel her to ask her
groom before she married him in secrecy, especially so when she was already about 50 years old at the
time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive
demonstration that she new that the man she had openly lived for 22 years as man and wife was a
married man with already two children.
 Page 29 of 76

FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that
she would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children
and by whom? That is un-Filipino.

FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible
that she would not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo
was respondent Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he
had lived for many years) and that of respondent Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least,
inherently improbable, for they are against the experience in common life and the ordinary instincts
and promptings of human nature that a woman would not bother at all to ask the man she was going to
marry whether or not he was already married to another, knowing that her groom had children. It
would be a story that would strain human credulity to the limit if petitioner did not know that Martin
Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to
respondent Rufina Gomez that led petitioner to break off with the deceased during their younger
years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between
persons who are living in adultery or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the
legacy because the testator admitted he was disposing the properties to a person with whom he had been
living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now
Intermediate Appellate Court, is AFFIRMED. No costs.

SO ORDERED.
 Page 30 of 76

Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.
 Page 31 of 76

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-17818 January 25, 1967

TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all surnamed Reyes y
Barretto, plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.

Succession; Partition, wherein an instituted heir. who was later found not to be the decedent’s child, was
included, is valid.—Article 1081 of the Old Civil Code, which provides that “a partition made with the
inclusion of a person believed to be an heir, but who is not, shall be void,” does not apply to a case where
the partition was made between two persons instituted as heirs in a will but it was found out later that
one of them was not the testator’s child. The reason is obvious. The heir, who was not the testator’s child,
was admittedly instituted as an heir in the will, and was not merely a person who was erroneously
believed to be an heir (See Reyes vs. Datu, 94 Phil. 446; Reyes vs. Barretto, 98 Phil. 996). Article 1081
does not speak of children or descendants but of heirs (without distinction between forced, voluntary or
intestate ones), and the fact that the person in question was not the testator’s daughter does not preclude
her from being one of the heirs expressly named in the testament, for the testator was at liberty to assign
the f ree portion of his estate to whomsover he chose. The fact that the one-half share assigned to the said
person encroached upon the legitime of the other instituted heir, who was a real daughter of the testator,
did not preclude that person from becoming a testamentary heir of the decedent.
 Page 32 of 76

Same; Diminution of legitime of forced heir does not constitute preterition.—Where the testator allotted
in his will to his legitimate daughter a share less than her legitime, such circumstance would not
invalidate the institution of a stranger as an heir, since there was no preterition or total omission of a
forced heir. The ruling in Neri vs. Akutin, 72 Phil. 322 is not applicable to the case.

Same; Partition not amounting to a compromise on civil status.—Where a partition was made between
two persons instituted as heirs in the will, and one of them was found out later not to be the testator’s
daughter, while the other was really his daughter, it cannot be said that the partition was a void
compromise on the civil status of the person who was not the testator’s daughter. At the time of the
partition, the civil status of that person was not being questioned. There can be no compromise on a
matter that was not in issue, While the law outlaws a compromise over civil status, it does not forbid a
settlement by the parties regarding the share that should correspond to the claimant to the hereditary
estate.

Same; When partition decreed by the court is res judicata.—A project of partition is merely a proposal
for the distribution of the hereditary estate which the court may accept or reject. It is the court alone that
makes the distribution of the estate and determines the persons entitled thereto (Camia de Reyes vs.
Reyes de Ilano, 63 Phil. 629; Sec. 750, Act 190; Rule 90, Old Rules of Court; Rule 91, Revised Rules of
Court). It is that final judicial decree of distribution that vests title in the distributees. If the decree was
erroneous, it should have been corrected by opportune appeal; but once it had become final, its binding
effect is like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.
Where the court has validly issued a decree of distribution and the same has become final, the validity or
invalidity of the project of partition becomes irrelevant.

Same; When consummated partition cannot be set aside.—A partition agreement that was ratified by
the court’s decree of distribution and was actually consummated by delivery of the shares to the
distributees cannot be set aside after a long lapse of time. The rule in Saminiada vs. Mata, 92 Phil. 426
does not apply to that case.
 Page 33 of 76

Same; Distribution according to the will should be respected; The minority of the distributee does not
affect court’s jurisdiction.—A distribution in the decedent’s will, made according to his will, should be
respected. The fact that one of the distributees was a minor at the time the court issued the decree of
distribution does not imply that the court had no jurisdiction to enter the decree of distribution. The
proceeding for the settlement of a decedent’s estate is a proceeding in rem (Ramos vs. Ortuzar, 89 Phil.
741). It is binding on the distributee who was represented by her mother as guardian.

Same; Relief on the ground of fraud.—Where in a partition between two instituted heirs, one of them
did not know that she was not really the child of the testator, it cannot be said that she def rauded the
other heir who was the testator’s daughter. At any rate, relief on the ground of fraud must be obtained
within four years from its discovery. Where the person allegedly defrauded was only sixteen years old in
1939, when the fraud was allegedly perpetrated, and she became of age in 1944, and became aware of the
fraud in 1946, her action in 1956 to set aside the partition was clearly barred.

Guardianship; Guardian cannot waive rights of the ward.—An abdicative waiver of rights by a guardian
is an act of disposition. It cannot bind his ward, being null and void as to the ward unless duly authorized
by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).

Recto Law Office for plaintiff-appealant.

Deogracias T. Reyes and Associates for defendant-appellee.

REYES, J.B.L., J.:

Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No. 1084,
dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver to the defendant-
appellee, Lucia Milagros Barretto-Datu, the properties receivea by his deceasea wife under the terms of
 Page 34 of 76

the will of the late Bibiano Barretto, consisting of lots in Manila, Rizal, Pampanga and Bulacan, valued at
more than P200,000.

The decision appealed from sets the antecedents of the case to be as follows:

"This is an action to recover one-half share in the fishpond, located in the barrio of San Roque,
Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land Records of this
Province, being the share of plaintiff's wards as minor heirs of the deceased Salud Barretto, widow
of plaintiff Tirso Reyes, guardian of said minors."

It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a vast
estate, consisting of real properties in Manila, Pampanga, and Bulacan, covered by Transfer Certificates of
Title Nos. 41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and
12507/T-337.

When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of these
properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros Barretto and a small
portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew anä nieces® The
usufruct oæ the fishponä situateä iî barrio Saî Roque¬ Hagonoy, Bulacan, above-mentioned, however, was
reserved for his widow, Maria Gerardo® Iî the meantime¬ Maria Gerardo was appointeä administratrix.
By virtue thereof, she prepared a project of partition, which was signed by her in her own behalf and as
guardian of the minor Milagros Barretto. Said project of partition was approved by the Court of First
Instance of Manila on November 22, 1939. The distribution of the estate and the delivery of the shares of
the heirs followed forthwith. As a consequence, 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.

Everything went well since then. Nobody was heard to complain of any irregularity in the distribution of
the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon her death, it was discovered
 Page 35 of 76

that she had executed two wills, in the first of which, she instituted Salud and Milagros, both surnamed
Barretto, as her heirs; and, in the second, she revoked the same and left all her properties in favor of
Milagros Barretto alone. Thus, the later will was allowed and the first rejected. In rejecting the first will
presented by Tirso Reyes, as guardian of the children of Salud Barretto, the lower court held that Salud
was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was
appealed to the Supreme Court, which affirmed the same.1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria Gerardo,
plaintiff now falls back upon the remnant of the estate of the deceased Bibiano Barretto, which was given
in usufruct to his widow Maria Gerardo. Hence, this action for the recovery of one-half portion, thereof.

This action afforded the defendant an opportunity to set up her right of ownership, not only of the
fishpond under litigation, but of all the other properties willed and delivered to Salud Barretto, for being
a spurious heir, and not entitled to any share in the estate of Bibiano Barretto, thereby directly attacking
the validity, not only of the project of partition, but of the decision of the court based thereon as well.

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, and that the court did not
acquire any jurisdiction of the person of the defendant, who was then a minor.'

Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project of
partition submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil Case No.
49629 of the Court of First Instance of Manila) to be null and void ab initio (not merely voidable) because
the distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was not a daughter of the
spouses Bibiano Barretto and Maria Gerardo. 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: .

A partition in which a person was believed to be an heir, without being so, has been included, shall
be null and void.
 Page 36 of 76

The court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto was
free to dispose of one-third (1/3) of his estate under the old Civil Code, his will was valid in favor of Salud
Barretto (nee Lim Boco) to the extent, at least, of such free part. And it concluded that, as defendant
Milagros was the only true heir of Bibiano Barretto, she was entitled to recover from Salud, and from the
latter's children and successors, all the Properties received by her from Bibiano's estate, 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 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. However, it denied defendant's prayer for damages. Hence,
this appeal interposed by both plaintiffs and defendant.

Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to the
present case by the court below. 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; hence, 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, and was not null and void under said article. The legal precept (Article 1081)
does not speak of children, or descendants, but of heirs (without distinction between forced, voluntary or
intestate ones), 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; for Bibiano Barretto was at liberty to assign
the free portion of his estate to whomsoever he chose. While the share (½) assigned to Salud impinged on
the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of Bibiano Barretto.

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, since there was here no preterition, or total ommission of a
forced heir. For this reason, Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable, that
case involving an instance of preterition or omission of children of the testator's former marriage.
 Page 37 of 76

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. This view is erroneous, since a compromise presupposes
the settlement of a controversy through mutual concessions of the parties (Civil Code of 1889, Article
1809; Civil Code of the Philippines, Art. 2028); and the condition of Salud as daughter of the testator
Bibiano Barretto, while untrue, was at no time disputed during the settlement of the estate of the testator.
There can be no compromise over issues not in dispute. And while a compromise over civil status is
prohibited, the law nowhere forbids a settlement by the parties over the share that should correspond to
a claimant to the estate.

At any rate, independently of a project of partition which, as its own name implies, is merely a proposal
for distribution of the estate, that the court may accept or reject, 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 (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91,
Revised Rules of Court), and it is that judicial decree of distribution, once final, that vests title in the
distributees. If the decree was erroneous or not in conformity with law or the testament, the same should
have been corrected by opportune appeal; but once it had become final, its binding effect is like that of
any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.

It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the
same has become final, the validity or invalidity of the project of partition becomes irrelevant.

It is, however, 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, Maria
Gerardo (who signed for herself and as guardian of the minor Milagros Barretto), and since no evidence
was taken of the filiation of the heirs, nor were any findings of fact or law made, the decree of distribution
can have no greater validity than that of the basic partition, and must stand or fall with it, being in the
nature of a judgment by consent, based on a compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in
support of the proposition. That case is authority for the proposition that a judgment by compromise may
 Page 38 of 76

be set aside on the ground of mistake or fraud, upon petition filed in due time, where petition for "relief
was filed before the compromise agreement a proceeding, was consummated" (cas. cit. at p. 436). In the
case before us, however, the agreement of partition was not only ratified by the court's decree of
distribution, but actually consummated, so much so that the titles in the name of the deceased were
cancelled, and new certificates issued in favor of the heirs, long before the decree was attacked. Hence,
Saminiada vs. Mata does not apply.

Moreover, 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. But, in fact, even without it, the distribution could
stand, since it was in conformity with the probated will of Bibiano Barretto, against the provisions
whereof no objection had been made. In fact it was the court's duty to do so. Act 190, section 640, in force
in 1939, provided: .

SEC. 640. Estate, How Administered. — When a will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the will annexed, and such letters testamentary or of
administration, shall extend to all the estate of the testator in the Philippine Islands. Such estate,
after the payment of just debts and expenses of administration, shall be disposed of according to such
will, so far as such will may operate upon it; and the residue, if any, 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. (Emphasis 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. Passing upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and
742:

If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they would be
concluded by the result of the proceedings, not only as to their civil status but as the distribution of
the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil. 938, "The proceeding for
 Page 39 of 76

probate is one in rem (40 Cyc., 1265) and the court acquires jurisdiction over all persons interested,
through the publication of the notice prescribed by section 630 C.P.C.; and any order that any be
entered therein is binding against all of them." (See also in re Estate of Johnson, 39 Phil. 156.) "A
final order of distribution of the estate of a deceased person vests the title to the land of the estate in
the distributees". (Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no
reason why, by analogy, these salutary doctrines should not apply to intestate proceedings.

The only instance that we can think of 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. Even then, the better practice to
secure relief is reopening of the same case by proper motion within the reglementary period,
instead of an independent action the effect of which, if successful, would be, as in the instant case,
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.

It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto Datu, 94 Phil.
446 (Am'd Rec. Appeal, pp. 156, 157), that:

... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and that
Maria Gerardo was not her judicially appointed guardian. The claim is not true. Maria Gerardo
signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the
project of partion that the guardianship proceedings of the minor Lucia Milagros Barretto are
pending in the court, does not mean that the guardian had not yet been appointed; it meant that the
guardianship proceedings had not yet been terminated, and as a guardianship proceedings begin
with the appointment of a guardian, Maria Gerardo must have been already appointed when she
signed the project of partition. There is, therefore, no irregularity or defect or error in the project of
partition, apparent on the record of the testate proceedings, which shows that Maria Gerardo had no
power or authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto,
 Page 40 of 76

and, consequently, 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.

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, therefore, can not
escape the jurisdiction of the Manila Court of First Instance which settled her father's estate.

Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have
ignored that the distributee Salud was not her child, the act of said widow in agreeing to the oft-cited
partition and distribution was a fraud on appellees rights and entitles her to relief. In the first place, there
is no evidence that when the estate of Bibiano Barretto was judicially settled and distributed appellants'
predecessor, Salud Lim Boco Barretto to, knew that she was not Bibiano's child: so that if fraud was
committed, it was the widow, Maria Gerardo, who was solely responsible, and neither Salud nor her
minor children, appellants herein, can be held liable therefor. In the second place granting that there was
such fraud, relief therefrom can only be obtained within 4 years from its discovery, and the record shows
that this period had elapsed long ago.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she became
of age five years later, in 1944. On that year, 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, to
expire in 1948 (Section 43, Act. 190). In fact, conceding that Milagros only became aware of the true facts
in 1946 (Appellee's Brief, p. 27), her action still became extinct in 1950. Clearly, therefore, the action was
already barred when in August 31, 1956 she filed her counterclaim in this case contesting the decree of
distribution of Bibiano Barretto's estate.

In order to evade the statute of limitations, 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, Salud. There is no reliable evidence of the alleged promise, which rests exclusively on
the oral assertions of Milagros herself and her counsel. In fact, the trial court made no mention of such
 Page 41 of 76

promise in the decision under appeal. Even more: granting arguendo that the promise was made, the
same can not bind the wards, the minor children of Salud, who are the real parties in interest. An
abdicative waiver of rights by a guardian, being an act of disposition, and not of administration, can not
bind his wards, being null and void as to them unless duly authorized by the proper court (Ledesma
Hermanos vs. Castro, 55 Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for
the settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance of Manila in
1939, in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or 1814 of the, Civil
Code of 1889; (2) that Milagros Barretto's action to contest said partition and decree of distribution is
barred by the statute of limitations; 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. It follows that the plaintiffs' action for partition of the fishpond
described in the complaint should have been given due course.

Wherefore, 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 enumeracted in said decision, and the same is affirmed in so far as it denies any right of said
appellee to accounting. Let the records be returned to the court of origin, with instructions to proceed
with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of
the Office of the Register of Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in
the complaint No costs.

Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.
 Page 42 of 76

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-24365 June 30, 1966

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased.

ADOLFO C. AZNAR, executor and appellee,
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee.

Wills; Succession; Rights of compulsory heir; Preterition defined.—Preterition is the omission of the heir
in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting
him as heir without disinheriting him expressly, nor assigning to him some part of the testator’s estate.
Whether the testator gave a legacy to a person, whom he characterized in the testamentary provision as
not related to him, but later this person was judicially declared to be his acknowledged natural child, the
case is not a case of preterition but a case of completion of legitime. The institution in the will would not
be annulled. There would be no intestacy.

Same; Right of compulsory heir, to whom testator left property less than his legitime to completion of
legitime even if he is not referred to in will as heir.—In order that the right of a forced heir may be limited
to the completion of his legitime (instead of the annulment of the institution of heirs) it is not necessary
that what has been left to him in the will “by any title,” as by legacy, be granted to him in his capacity as
heir. As successional rights are vested as of the moment of death, the forced heir is entitled to the fruits
and increments of his legitime from the testator’s death.
 Page 43 of 76

Appeals; Substitution of heirs is not an issue where substitute heirs are not parties to the case.—The
reference to and discussion of the rights of the substitute heirs in appellant’s brief appears to be merely
for the purpose of refuting the theory advanced by appellees and not f or the purpose of having the rights
of said heirs defined insofar as, under the terms of the will, they may affect the legitime of the oppositor-
appellant. This point of course was not and could hardly have been squarely raised as an issue inasmuch
as the substitute heirs are not parties in this case.

Same; No substitution on legitime.—The legitime must descend to the forced heir in fee simple, since
the testator cannot impose on it any burden, encumbrance, condition or substitution (Arts, 864. 872 and
904. New Civil Code).

J. Salonga and L. M. Abellera for oppositor and appellee.

Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.

MAKALINTAL, J.:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will
executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its
decision of February 28, 1954. 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. The declaration was
appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484).

In another incident relative to the partition of the deceased's estate, the trial court approved the project
submitted by the executor in accordance with the provisions of the will, which said court found to be
valid under the law of California. Helen Garcia appealed from the order of approval, and this Court, on
January 31, 1963, reversed the same on the ground that the validity of the provisions of the will should be
governed by Philippine law, and returned the case to the lower court with instructions that the partition
be made as provided by said law (G.R. No. L-16749).
 Page 44 of 76

On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of
partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were
divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen
Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had expressly recognized
in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his
death. 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, and hence the properties passed to both of them
as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which
legacies have been duly approved by the lower court and distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the
estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether
the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to
cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.

The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to
the issue in this case:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard
Daney), who was born in the Philippines about twenty-eight years ago, who is now residing at No.
665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my above-
named daughter, MARIA LUCY CHRISTENSEN DANEY.

xxx xxx xxx

7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia,
about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is
 Page 45 of 76

not in any way related to me, nor has she been at any time adopted by me, and who, from all
information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND
SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in trust for the
said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to
her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal
thereof as well as any interest which may have accrued thereon, is exhausted.

xxx xxx xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY
CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my
property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever
situated, of which I may be possessed at my death and which may have come to me from any source
whatsoever, during her lifetime; Provided, however, that should the said MARIA LUCY
CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in that event,
the life interest herein given shall terminate, and if so terminated, then I give, devise, and bequeath
to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my
property with the same force and effect as if I had originally so given, devised and bequeathed it to
her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die without
living issue, then, and in that event, I give, devise and bequeath all the rest, remainder and residue of
my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now
residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the
children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los
Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A.,
share and share alike, the share of any of the three above named who may predecease me, to go in
equal parts to the descendants of the deceased; and, provided further, that should my sister Mrs.
Carol Louise C. Borton die before my own decease, then, and in that event, the share of my estate
 Page 46 of 76

devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de Treviño, of
Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard Borton, of
Bakersfield, California, U.S.A., or to the heirs of any of them who may die before my own decease,
share and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a
compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article
854 of the Civil Code, which provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory 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
annul the institution of heir; but the devises and legacies shall be valid insofar as they are not
inofficious.

On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906
of the Civil Code, which says: "Any compulsory heir to whom the testator has left by any title less than the
legitime belonging to him may demand that the same be fully satisfied." Appellant also suggests that
considering the provisions of the will whereby the testator expressly denied his relationship with Helen
Garcia, but left to her a legacy nevertheless although less than the amount of her legitime, she was in
effect defectively disinherited within the meaning of Article 918, which reads:

ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the
institution of heirs insofar as it may prejudice the person disinherited; but the devices and legacies
and other testamentary dispositions shall be valid to such extent as will not impair the legitimate.

Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her legitime,
and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate.
 Page 47 of 76

Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815.
Commenting on Article 815, Manresa explains:

Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el
testador; en el de dejar algo al heredero forzoso no. Este no se encuentra plivado totalmente de su
legitima: ha recibido por cualquir titulo una porcion de los bienes hereditarios, porcion que no alcanza
a completar la legitima, pero que influeye poderosamente en el animo del legislador para decidirle a
adoptar una solucion bien diferente de la señalada para el caso de pretericion.

El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un
calculo equivocado, ha repartido en favor de extraños o en favor de otros legitimarios por via de
legado donacion o mejora mayor cantidad de la que la ley de consentia disponer. El heredero
forzoso no puede perder su legitima, pero tampoco puede pedir mas que la misma. De aqui su
derecho a reclamar solamente lo que le falta; al complemento de la porcion que forzosamente la
corresponde.

... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia
legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la
legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco
con la doctrina de la ley. Cuando en el testamento se deja algo al heredero forzoso, la pretericion es
incompleta: es mas formularia que real. Cuando en el testamento nada se deja el legitimario, hay
verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)

On the difference between preterition of a compulsory heir and the right to ask for completion of his
legitime, Sanchez Roman says:

La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se presume
involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en su testamento a
la satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y
 Page 48 of 76

totalmente de el y no mencionandole en ninguna de sus disposiciones testamentarias, o

no instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el de legatar o aunque
le mencionara o nombrara sin dejarle mas o menos bienes. Si le dejara algunos, por pocos que sean e
insuficientes para cubrir su legitima, ya no seria caso de pretericion, sino de complemento de aquella.
El primer supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la
institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo original la
accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.)

Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or,
while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him
expressly, nor assigning to him some part of the properties. Manresa continues:

Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision sea
completa; que el heredero forzoso nada reciba en el testamento.1äwphï1.ñët

xxx xxx xxx

B. Que la omision sea completa — Esta condicion se deduce del mismo Articulo 814 y resulta con
evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el testador deja algo por
cualquier titulo en su testamento, no se halla propiamente omitido pues se le nombra y se le
reconoce participacion en los bienes hereditarios. Podria discutirse en el Articulo 814 si era o no
necesario que se reconociese el derecho del heredero como tal heredero, pero el articulo 815
desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de la privacion
parcial. Los efectos deben ser y son, como veremos completamente distintos (6 Manresa, p. 428.)

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por

completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es menguarla o
 Page 49 of 76

reducirla dejar al legitimario una porcion, menor que la que le corresponde. A este caso se refiere el
articulo 815. El 813 sienta, pues, una regla general, y las consecuencias del que brantamiento de esta
regla se determina en los articulos 814 y 815. (6 Manresa p. 418.)

Again Sanchez Roman:

QUE LA OMISSION SEA TOTAL. — Aunque el articulo 814 no consigna de modo expreso esta
circunstancia de que la pretericion o falta de mencion e institucion o disposicion testamentaria a su
favor, sea total, completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna
empleandola en terminos generales; pero sirve a confirmarlo de un modo indudable el siguiente
articulo 815, al decir que el heredero forzoso a quien el testador haya dejado por cualquier titulo,
menos de la legitima que la corresponda, podria pedir el complemento de la misma, lo cual ya no son
el caso ni los efectos de la pretericion, que anula la institucion, sino simplemente los del suplemento
necesario para cubrir su legitima. (Sanchez Roman — Tomo VI, Vol. 2.0 p. 1133.)

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," as by legacy, be granted to him in his capacity as heir, that is, a titulo de
heredero? In other words, 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. Christensen Helen Garcia is not mentioned as an
heir — indeed her status as such is denied — but is given a legacy of P3,600.00.

While the classical view, pursuant to the Roman law, gave an affirmative answer to the question,
according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 — p. 937),
that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906
of our own Code. Sanchez Roman, in the citation given above, comments as follows:

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta materia en la

doctrina clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian
 Page 50 of 76

aquellos precedentes legales al heredero forzoso, a quien no se le dejaba por titulo de tal el completo
de su legitima, la accion para invalidar la institucion hecha en el testamento y reclamar y obtener
aquella mediante el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como
donotario, por otro titulo que no fuera el de heredero, sino al honor de que se le privaba no dandole
este caracter, y solo cuando era instituido heredero en parte o cantidad inferior a lo que le
correspondiera por legitima, era cuando bastaba el ejercicio de la accion ad suplementum para
completarla, sin necesidad de anular las otras instituciones de heredero o demas disposiciones
contenidas en el testamento.

El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le inspira cual
es la de que se complete la legitima del heredero forzoso, a quien por cualquier titulo se haya dejado
menos de lo que le corresponda, y se le otorga tan solo el derecho de pedir el complemento de la
misma sin necesidad de que se anulen las disposiciones testamentarias, que se reduciran en lo que
sean inoficiosas conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la
sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de
la legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del testador,
segun lo revela el texto del articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es
por titulo de legado o donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman,
Tomo VI, Vol. 2.0 — p. 937.)

Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25,
1917, and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced
heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a
relative, and willed the rest of the estate to other persons. It was held that Article 815 applied, and the
heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be
completed. (6 Manresa, pp. 438, 441.)
 Page 51 of 76

The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the
present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge
Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. 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, who alone was
expressly recognized by him.

The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their
theory of preterition. That decision is not here applicable, because it referred to a will where "the testator
left all his property by universal title to the children by his second marriage, and (that) without expressly
disinheriting the children by his first marriage, he left nothing to them or, at least, some of them." In the
case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of
P3,600.00.

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. One-fourth (1/4) of said estate descended
to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of
the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or
increments thereof subsequently accruing. These include the stock dividends on the corporate holdings.
The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will
cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to
her legitime.

One point deserves to be here mentioned, although no reference to it has been made in the brief for
oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the
event she should die without living issue. 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, unless prior to her decease
 Page 52 of 76

she should have living issue, in which event she would inherit in full ownership; otherwise the property
will go to the other relatives of the testator named in the will. Without deciding this, point, since it is not
one of the issues raised before us, we might call attention to the limitations imposed by law upon this
kind of substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil
Code), which means that the legitime must descend to the heir concerned in fee simple.

Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as
submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions to
partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-appellee
Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime, equivalent to
one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which shall not include
those imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs against
appellees in this instance.

Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur.

RESOLUTION

July 30, 1967

MAKALINTAL, J.:

Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an alleged
oversight and asking for the corresponding correction, in the last paragraph before the dispositive part of
our decision, which reads as follows:

One point deserves to be here mentioned, although no reference to it has been made in the brief for
oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan in
the event she should die without living issue. This substitution results in effect from the fact that under
 Page 53 of 76

paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease
she should have living issue, in which event she would inherit in full ownership; otherwise the property
will go to the other relatives of the testator named in the will. Without deciding this point, since it is not
one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind
of substitution, particularly that which says that it can never burden the legitime (Art. 864, Civil Code),
which means that the legitime must descend to the heir concerned in fee simple. (Decision, June 30, 1966,
pages 14-15; emphasis ours).

Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in her
brief particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and discussion
of the rights of the substitute heirs (called American heirs in the brief) appears to be merely for the
purpose of refuting the theory advanced by appellees and not for the purpose of having the rights of said
heirs defined in so far as, under the terms of the will, they may affect the legitime of oppositor-appellant.
This point of course was not and could hardly have been squarely raised as an issue inasmuch as the
substitute heirs are not parties in this case. We have nevertheless called attention "to the limitations
imposed by law upon this kind of substitution," because in the brief for oppositor-appellant, at page 45,
she makes the conclusion "that the Last Will and Testament of Edward E. Christensen are valid under
Philippine Law and must be given full force and effect;" and to give them full force and effect would
precisely affect the legitime of oppositor-appellant.

Wherefore, the last paragraph before the dispositive part of our decision quoted above is amended by
eliminating the following phrase in the first sentence: "although no reference to it has been made in the
brief for oppositor-appellant."

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Regala and Castro, JJ., took no part.
 Page 54 of 76

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ
and ROSA DIONGSON, respondents.

Civil Law; Succession; Preterition, meaning of; Article 854 of the Civil Code not applicable to the
surviving spouse; Adoption makes the adopted the legal heir of the adopter.—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 (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA [1982].
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. (Art. 854, Civil Code) 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 (Memorandum for the Petitioner, pp. 8-9). 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 was 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.
 Page 55 of 76

Same; Same; Same; Preterition annuls the institution of an heir and creates intestate succession but
legacies and devises are valid and respected insofar as they are not inofficious.—Preterition annuls the
institution of an heir and annulment throws open to intestate succession the entire inheritance including
“la portion libre (que) no hubiese dispuesto en virtual de legado, mejora o donation” (Manresa, as cited in
Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). 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, except in so far as the legitimes are concerned.

Same; Same; Same; Same; Institution of petitioner and his brothers and sisters to the entire inheritance
totally abrogates the will.—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—amounts to a
declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil
Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor 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. The effect of annulling the institution of heirs will be, necessarily,
the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and
devises must, as already stated above, be respected.

Same; Same; Probate of a will; Petitioner has no legal standing to petition for the probate of the will of
the deceased, hence Special Proceeding No. 591-A-CEB must be dismissed.—In order that a person may be
allowed to intervene in a probate proceeding he must have an interest in 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 (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, 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, Civil Code). At the outset, he
 Page 56 of 76

appears to have an interest in the will as an heir, 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. However, intestacy having
resulted from the preterition of respondent adopted child and the universal institution of heirs,
petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the
will left by the deceased and Special Proceedings No. 591-A-CEB must be dismissed.

Same; Same; Same; Rule that probate Court’s authority is limited only to the extrinsic validity of the will,
not inflexible and absolute; Court may pass upon the intrinsic validity of the will under exceptional
circumstances.—Special Proceedings No. 591-CEB is for the probate of a will. As stated by respondent
Court, the general rule is that the probate court’s authority is limited only to the extrinsic validity of the
will, the due execution thereof, the testator’s testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of the will normally come only after the
Court has declared that the will has been duly authenticated. 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. Nuguid,
17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982];
Cayetano v. Leonidas, 129 SCRA 522 [1984]); and Nepomuceno v. Court of Appeals, 139 SCRA 206
[1985]). The rule, however, is not inflexible and absolute. Under exceptional circumstances, 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. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved
to dismiss on the ground of absolute preterition. The probate court acting on the motion held that the will
in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court
upheld the decision of the probate court, induced by practical considerations.

Same; Same; Same; Same; Trial Court could have denied outright the probate of the will or have passed
upon its intrinsic validity where on its face it appears to be intrinsically void.—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
 Page 57 of 76

an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. 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.
Leonidas, supra; Nuguid v. Nuguid, supra). The remedies of certiorari and prohibition were properly
availed of by private respondents.

Certiorari; Remedy of Certiorari cannot be a substitute for appeal, exception.—As a general rule
certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise
of judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138
SCRA 587 [1985]). 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, speedy and adequate remedy in the course
of law (D.D. Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however,
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. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).

Same; Same; Certiorari may be entertained where appeal will not afford a speedy and adequate relief.—
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right
to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave
abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the
case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of
appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may
be entertained, particularly where appeal would not afford speedy and adequate relief.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP
No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in
 Page 58 of 76

Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying
respondents' (petitioners herein) motion for reconsideration.

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, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in
Special Proceedings No. 591 ACEB No special pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of
Appeals, (Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a
petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of
letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that
Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his
sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by
Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English
(Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will
contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G.
Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will
provided:

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
 Page 59 of 76

to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and
Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be
heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents
herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa
Diongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legal
capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the
adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, 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,
1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial
court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591
ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review of
respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on
June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents'
Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed
on September 29, 1986 (Rollo, p. 177).
 Page 60 of 76

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary
injunction is not the proper remedy under the premises;

(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;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The
preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory
heirs in the direct line," and does not apply to private respondents who are not compulsory
heirs in the direct line; their omission shall not annul the institution of heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(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, explicitly
expressed in his will. This is what matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp.
Proc. No. 591 ACEB for probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and
ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

 Page 61 of 76

Art. 854. The preterition or omission of one, some, or all of the compulsory 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 annul the institution of heir; but the devisees and legacies shall be valid insofar
as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he effectual,
without prejudice to the right of representation.

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 (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114
SCRA 478 [1982]). 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. (Art. 854, Civil code) 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 (.Memorandum for the Petitioner, pp. 8-9). 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 "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion"
Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). 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, except insofar as the legitimes are concerned.
 Page 62 of 76

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-amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for
inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor 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. The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy
(Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated
above, be respected.

We now deal with another matter. 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 (Sumilang v. Ramagosa,
21 SCRA 1369/1967). Petitioner is not the appointed executor, 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, Civil Code). At the outset, he appears to have an interest in the
will as an heir, 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. However, intestacy having resulted from the preterition of
respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the
testator. He has no legal standing to petition for the probate of the will left by the deceased and Special
Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an
oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v.
Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v.
Sarmiento, 138 SCRA 587 [1985]). 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, speedy and adequate
 Page 63 of 76

remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]).
They are, however, 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. de Bacang v. Court of Appeals,
125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general
rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due
execution thereof, the testator's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has
declared that the will has been duly authenticated. 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. Nuguid, 17 SCRA
449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano
v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, 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. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to
dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in
question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court
upheld the decision of the probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, 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. Result: waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the issue of the
 Page 64 of 76

validity of the provisions of the will in question. After all there exists a justiciable controversy
crying for solution.

In Saguimsim v. 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. The Court upheld
the probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the
validity of the provisions of the will. Respondent Judge allowed the probate of the will. 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. Where circumstances demand that intrinsic validity of testamentary
provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court
should meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591
ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to
institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter
have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 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, p. 32). A subsequent
motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).

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. It would have meant a waste of time, effort, expense,
plus added futility. 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
 Page 65 of 76

(Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were
properly availed of by private respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right
to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave
abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the
case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of
appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may
be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court
of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of
respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985
are hereby AFFIRMED.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and
Cortes, JJ., concur.
 Page 66 of 76

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23445 June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Wills; Succession; Probate of will; Court’s area of inquiry is limited to extrinsic validity of will; When
Court may rule on intrinsic validity.—In a proceeding for the probate of a will, the court’s area of inquiry is
limited to an examination of, and resolution on, the extrinsic validity of the will, the due execution
thereof, the testatrix’s testamentary capacity and the compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that
the will has been duly authenticated. However, where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the Court should meet that issue.

Same; Preterition; Omission of forced heirs in the will.—Where the deceased left no descendants,
legitimate or illegitimate, but she left forced heirs in the direct ascending line—her parents, and her
holographic will does not explicitly disinherit them but simply omits their names altogether, the case is
one of preterition of the parents, not a case of ineffective disinheritance.

Same; Preterition distinguished from disinheritance.—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.” (Neri vs. Akutin, 72
Phil., 325). Disinheritance, in turn, “is a testamentary disposition depriving any compulsory heir of his
 Page 67 of 76

share in the legitime for a cause authorized by law.” (Justice J.B.L. Reyes and R.C. Puno, “An Outline of
Philippine Civil Law”, 1966 ed., Vol. III, p. 8, citing cases.) Disinheritance is always “voluntary”;
preterition, upon the other hand, is presumed to be “involuntary” (Sánchez Román, Estudios de Derecho
Civil, 2nd edition, Volumen 2.o, p. 1131).

Same; Effects flowing from preterition and disinheritance.—The effects flowing from preterition are
totally different from those of disinheritance. Preterition under Article 854 of the New Civil Code “shall
annul the institution of heir”. This annulment is in toto, unless in the will there are, in addition,
testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article
918 of the same Code, such disinheritance shall also “annul the institution of heirs”, but only “insofar as it
may prejudice the person disinherited”, which last phrase was omitted in the case of preterition (III
Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in disinheritance the
nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived.

Same; When institution of heirs is void.—Where the onesentence will institutes the petitioner as the
sole, universal heir and preterits the parents of the testatrix, and it contains no specif ic legacies or
bequests, such universal institution of petitioner, by itself, is void. And intestate succession ensues.

Same; When legacies and devises merit consideration.—Legacies and devises merit consideration only
when they are so expressly given as such in a will. Nothing in Article 854 of the New Civil Code suggests
that the mere institution of a universal heir in a will—void because of preterition—would give the heir so
instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and separate from the
nullified institution of heir.

Same; Institution of heirs cannot be considered a legacy.—If every case of institution of heirs may be
made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the
provisions of Articles 814 and 851 of the old Civil Code, regarding total or partial nullity of the institution,
 Page 68 of 76

would be absolutely meaningless and will never have any application at all. 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 of the same Code.

Custodio O. Partade for petitioner and appellant.

Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants,
legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga
Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and
Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic
will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise.
Petitioner prayed that said will be admitted to probate and that letters of administration with the will
annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of
the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter
alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors
— who are compulsory heirs of the deceased in the direct ascending line — were illegally preterited and
that in consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss.

 Page 69 of 76

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will
perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition
without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will.
The court's area of inquiry is limited — to an examination of, and resolution on, the extrinsic validity of
the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted
upon, by the court. 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, the legality of any devise or legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the
will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will.
Normally, this comes only after the court has declared that the will has been duly authenticated.2 But
petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is
the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, 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. Result: waste of time, effort, expense, plus
added anxiety. 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.3 After all, there exists a
justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is
a complete nullity. This exacts from us a study of the disputed will and the applicable statute.
 Page 70 of 76

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount
of property, do hereby give, devise, and bequeath all of the property which I may have when I die to my
beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have
signed my name this seventh day of November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory 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
annul the institution of heir; but the devises and legacies shall be valid insofar as they are not
inofficious. ...

Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil
Code of Spain of 1889, which is similarly herein copied, thus —

Art. 814. 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 betterments4 shall be valid, in so far as they are not inofficious. ...

A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this
point Manresa comments:
 Page 71 of 76

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun

nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente ni se le
asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a
uno cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa;
que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us,
to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree
upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void or
of no effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A.
2d 611, 614, 136 N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish;
to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or
illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix
Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing
by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited.
This is a clear case of preterition. Such preterition in the words of Manresa "anulara siempre la institucion
de heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now
 Page 72 of 76

854 of the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir —
nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say
that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa:

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte?
No se añade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la
institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe, pues, entenderse
que la anulacion es completa o total, y que este articulo como especial en el caso que le motiva rige
con preferencia al 817. 10

The same view is expressed by Sanchez Roman: —

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno,

varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o parcial. Sera
total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los bienes por titulo
universal de herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo
exige la generalidad del precepto legal del art. 814, al determinar, como efecto de la pretericion, el
de que "anulara la institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the
universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because,
the nullification of such institution of universal heir — without any other testamentary disposition in the
will — amounts to a declaration that nothing at all was written. Carefully worded and in clear terms,
Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by
the roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal
Supreme, correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no
consiente interpretacion alguna favorable a la persona instituida en el sentido antes expuesto aun
 Page 73 of 76

cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa
en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo tanto
procederse sobre tal base o supuesto, y consiguientemente, en un testamento donde falte la
institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los de
otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas
obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y
eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a
la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente,
hay razon para convereste juicio en regla de interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the
devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will — void because of preterition — would give the heir so
instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and separate from the
nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now
854, states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added
(in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de
legado, mejora o donacion. 14
 Page 74 of 76

As aforesaid, there is no other provision in the will before us except the institution of petitioner as
universal heir. That institution, by itself, is null and void. And, intestate succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of
preterition". 15 From this, petitioner draws the conclusion that Article 854 "does not apply to the case at
bar". This argument fails to appreciate the distinction between pretention and disinheritance.

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." 16 Disinheritance, in turn, "is a testamentary disposition depriving any
compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own words:
"La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es
siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria". 19 Express as
disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their
names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the
said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of
heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the
form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in
the case of preterition on the one hand and legal disinheritance on the other, runs thus:
 Page 75 of 76

"Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el
caso. 23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore
cited, viz:

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, accordingly, it must not be entirely
annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of Articles
814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept
of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and
851 regarding total or partial nullity of the institution, would. be absolutely meaningless and will never
have any application at all. 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. Thus, instead of construing, we would be destroying integral provisions of the
Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of
heirs from legacies and betterments, and a general from a special provision. With reference to article
814, which is the only provision material to the disposition of this case, it must be observed that the
institution of heirs is therein dealt with as a thing separate and distinct from legacies or betterments.
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. Institution of heirs is a bequest by universal title
of property that is undetermined. Legacy refers to specific property bequeathed by a particular or
special title. ... But again an institution of heirs cannot be taken as a legacy. 25
 Page 76 of 76

The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil
Code in turn merely nullifies "the institution of heir". Considering, however, that the will before us solely
provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The
entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No
costs allowed. So ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.