G.R. No.
L-47799 June 13, 1941
Administration of the estate of Agripino Neri y Chavez.
ELEUTERIO NERI, ET AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamiz & Capistrano for petitioners.
Gullas, Leuterio, Tanner & Laput for respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had
by his first marriage six children named Eleuterio, Agripino,
Agapito, Getulia, Rosario and Celerina; and by his second
marriage with Ignacia Akutin, five children named Gracia,
Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter
in the first marriage, died on October 2, 1923, that is, a little less
than eight years before the death of said Agripino Neri y
Chavez, and was survived by seven children named Remedios,
Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In
Agripino Neri's testament, which was admitted to probate on
March 21, 1932, he willed that his children by the first marriage
shall have no longer any participation in his estate, as they had
already received their corresponding shares during his lifetime.
At the hearing for the declaration of heirs, the trial court found,
contrary to what the testator had declared in his will, that all his
children by the first and second marriages intestate heirs of the
deceased without prejudice to one-half of the improvements
introduced in the properties during the existence of the last
conjugal partnership, which should belong to Ignacia Akutin.
The Court of Appeals affirmed the trial court's decision with the
modification that the will was "valid with respect to the two-thirds
part which the testator could freely dispose of. "This judgment of
the Court of Appeals is now sought to be reviewed in this
petition for certiorari.
The decisive question here raised is whether, upon the
foregoing facts, the omission of the children of the first marriage
annuls the institution of the children of the first marriage as sole
heirs of the testator, or whether the will may be held valid, at
least with respect to one-third of the estate which the testator
may dispose of as legacy and to the other one-third which he
may bequeath as betterment, to said children of the second
marriage.
The Court of Appeals invoked the provisions of article 851 of the
Civil Code, which read in part as follows:
Disinheritance made without a statement of the cause,
or for a cause the truth of which, if contradicted, is not
proven, ... shall annul the institution of the heir in so
far as it prejudices the person disinherited; but the
legacies, betterments, and other testamentary
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dispositions, in so far as they do no encroach upon
the legitime, shall be valid.
The appellate court thus seemed to have rested its judgment
upon the impression that the testator had intended to disinherit,
though ineffectively, the children of the first marriage. There is
nothing in the will that supports this conclusion. True, the
testator expressly denied them any share in his estate; but the
denial was predicated, not upon the desire to disinherit, but
upon the belief, mistaken though it was, that the children by the
first marriage had already received more than their
corresponding shares in his lifetime in the form of advancement.
Such belief conclusively negatives all inference as to any
intention to disinherit, unless his statement to that effect is prove
to be deliberately fictitious, a fact not found by the Court of
Appeals. The situation contemplated in the above provision is
one in which the purpose to disinherit is clear, but upon a cause
not stated or not proved, a situation which does not obtain in the
instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas justa
del problema que hemos hecho notar al comentar el
articulo, seria distinguir el caso en que el heredero
omitido viviese al otorgarse el testamento, siendo
conocida su existencia por el testador, de aquel en
que, o naciese despues, o se ignorase su existencia,
aplicando en el primer caso la doctrina del articulo
851, y en el segundo la del 814. (6 Manresa, 354-
355.)
But it must be observed that this opinion is founded on mere
principles (en el terreno de los principios) and not on the
express provisions of the law. Manresa himself admits that
according to law, "no existe hoy cuestion alguna en esta
materia: la pretericion produce siempre los mismos efectos, ya
se refiera a personas vivas al hacer el testamento o nacidas
despues. Este ultimo grupo solo puede hacer relacion a los
descendientes legitimos, siempre que ademas tengan derecho
a legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of
voluntary preterition of four of the children by the first marriage,
and of involuntary preterition of the children by the deceased
Getulia, also of the first marriage, and is thus governed by the
provisions of article 814 of the Civil Code, which read in part as
follows:
The preterition of one or all of the forced heirs in the
direct line, whether living at the time of the execution
of the will or born after the death of the testator, shall
void the institution of heir; but the legacies and
betterments shall be valid, in so far as they are not
inofficious.
Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited.(Cf. 6 Manresa,
346.) In the instant case, while the children of the first marriage
were mentioned in the will, they were not accorded any share in
the heriditary property, without expressly being disinherited. It is,
therefore, a clear case of preterition as contended by appellants.
The omission of the forced heirs or anyone of them, whether
voluntary or involuntary, is a preterition if the purpose to
disinherit is not expressly made or is not at least manifest.

Except as to "legacies and betterments" which "shall be valid in

so far as they are not inofficious" (art. 814 of the Civil Code),
preterition avoids the institution of heirs and gives rise to
intestate succession. (Art. 814, Civil Code; Decisions of the
Supreme Court of Spain of June 17, 1908 and February 27,
1909.) In the instant case, no such legacies or betterments have
been made by the testator. "Mejoras" or betterments must be
expressly provided, according to articles 825 and 828 of the
Civil Code, and where no express provision therefor is made in
the will, the law would presume that the testator had no intention
to that effect. (Cf. 6 Manresa, 479.) In the will here in question,
no express betterment is made in favor of the children by the
second marriage; neither is there any legacy expressly made in
their behalf consisting of the third available for free disposal.
The whole inheritance is accorded the heirs by the second
marriage upon the mistaken belief that the heirs by the first
marriage have already received their shares. Were it not for this
mistake, the testator's intention, as may be clearly inferred from
his will, would have been to divide his property equally among
all his children.

Judgment of the Court of Appeals is reversed and that of the

trial court affirmed, without prejudice to the widow's legal
usufruct, with costs against respondents.

Avanceña, C.J., Diaz, Laurel and Horrilleno, JJ., concur.

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