FIRST DIVISION
"First. I declare that all the property which belongs to
[G.R. No. 8927. March 10, 1914.
ASUNCION NABLE JOSE ET AL., Plaintiffs-
Appellants, v. MARIA IGNACIA USON ET
AT., Defendants-Appellees.
Ramon Salinas for Appellants.
Pedro Ma Sison for Appellees.
SYLLABUS
1. WILLS; INTERPRETATION; SUCCESSION OF
SISTERS AND NIECES. — The following clauses
appeared in a will, to wit:
"First. I declare that all the property which belongs to
me as conjugal property, referred to in my said
testament, shall be the property of my aforesaid
husband, Don Rafael Sison; in case all or part of
said property exists at my husband’s death, it is my
will that at his death my sisters and nieces
hereinafter named succeed him as heirs.
"Second. I declare to be my sisters in lawful wedlock
the persons named Doña Antonia Uson, now
deceased, who has two daughters called Maria
Rosario, widow, and Maria Paz, unmarried; Maria
Romualda Uson, widow of Estanislao Lengson;
Ignacia Uson, married to Don Vicente Puzon;
Eufemia Uson, now deceased, who is survived by
three daughters called Maria Salud, Maria Amparo,
and Maria Asuncion and Maria Pilar Uson; Maria
Manaoag Uson, unmarried, issue had by our
deceased father Don Daniel Uson with one
Leonarda Fernandez, alias Andao de Lingayen, so
that they may have and enjoy it in equal parts as
good sisters and relatives."cralaw virtua1aw library
Held, That the living sisters and the children of the
deceased sisters take per capita and in equal parts.
DECISION
MORELAND, J.  :
The question involved in this appeal arises from the
interpretation of the first and second clauses of a
rodicil to the will of Filomena Uson. They read as
follows:jgc:chanrobles.com.ph
] me as conjugal property, referred to in my said
testament, shall be the property of my aforesaid
husband, Don Rafael Sison; in case all or part of
said property exists at my husband’s death, it is my
will that at his death my sisters and nieces
hereinafter named succeed him as heirs.
"Second. I declare to be my sisters in lawful wedlock
the persons named Doña Antonia Uson, now
deceased, who has left two daughters called Maria
Rosario, widow, of Estanislao Lengson; Ignacia
Uson, married to Don Vicente Puzon; Eufemia Uson,
now deceased, who is survived by three daughters
called Maria Salud, Maria Amparo, and Maria
Asuncion; and Maria Pilar Uson; Maria Manaoag
Uson, unmarried, issue had by our deceased father
Don Daniel Uson with one Leonarda Fernandez,
alias Andao de Lingayen, so that they may have and
enjoy it in equal parts as good sisters and relatives."
The court below found that the children of the
deceased sisters should take only that portion which
their respective mothers would have taken if they
had been alive at the time the will was made; that
the property should be divided into six equal parts
corresponding to the number of sisters; that each
living sisters should take one-sixth, and the children
of each deceased sister should also take one-sixth,
each one-sixth to be divided among said children
equally.
This appeal taken from the judgment entered upon
that finding, appellants asserting that under a proper
construction of the paragraphs of the codicil above-
quoted the property should be divided equally
between the living sisters and the children of the
deceased sisters, share and share alike, a niece
taking the same share that a sister receives.
We are of the opinion that the appellant’s contention
is well founded. We see no words or phrases in the
clauses quoted which lead necessarily to the
construction placed upon those paragraphs by the
learned court below. On the other hand, we find
expression which seem to indicate with fair
clearness that it was the intention of the testatrix to
divide her property equally between her sisters and
nieces. The court below based its construction upon
the theory that the other construction would be "an
admission that the testatrix desired to favor her
deceased sister Eufemia Uson, who left three
children, more than her other deceased sister
Antonia Uson, who left two children, and moreover
both would be more favored than any of the other
four surviving sisters, one of whom was married at
the time of the execution of the said codicil and
without doubt had children."cralaw virtua1aw library

As we look at the codicil we observe, first, that the

testatrix, in the first paragraph thereof, declares that
after her husband’s death she desires that "my
sisters and nieces, as hereinafter named, shall
succeed him as heirs."cralaw virtua1aw library

We note, in the second place, that the testatrix, in

the second paragraph of the codicil, names and
identifies each one of her heirs then living, or each
one of the persons whom she desires shall succeed
her husband in the property. Among those
mentioned specifically are the nieces as well as the
sisters. The nieces are referred to in no way different
from the sisters. Each one stands out in the second
paragraph of the codicil as clearly as the other and
under exactly the same conditions.

In the third place, we note, with interest, the last

clause of the second paragraph of the codicil which,
it seems to us, taken together with the last clause of
the first paragraph of the codicil, is decisive of the
intention of the testatrix. In the last clause she says
that she names all of the persons whom she desires
to take under her will by name "so that they may
take and enjoy the property in equal parts as good
sisters and relatives."cralaw virtua1aw library

We have then in the first paragraph a declaration as

to who the testatrix desires shall become the owners
of her property on the death of her husband. Among
them we find the names of the nieces as well as of
the sisters. We have also the final declaration of the
testatrix that she desires that the sisters and nieces
shall take and enjoy the property in equal parts. That
being so, it appears to us that the testatrix’s intention
is fairly clear, so clear in fact that it is unnecessary to
bring in extraneous arguments to reach a conclusion
as to what she intended.

The judgment appealed from is hereby modified by

declaring that, of the property passing under the
codicil hereinabove referred to, the living sisters and
the children of the deceased sisters shall take per
capita and in equal parts, and as so modified the
judgment is affirmed. No costs in this instance.
FIRST DIVISION
[G.R. No. L-23079. February 27, 1970.]
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA
and LAURO AUSTRIA MOZO, Petitioners, v.
HON. ANDRES REYES, Judge, Court of First
Instance of Rizal, PERFECTO CRUZ, BENITA
CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ
and LUZ CRUZ-SALONGA respondents.
Salonga, Ordoñez, Yap, Sicat & Associates,
for Petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos & De los Santos for
respondent Perfecto Cruz.
Villareal, Almacen, Navarra & Amores for other
respondents.
SYLLABUS
1. CIVIL LAW; TESTATE SUCCESSION;
REQUISITES TO ANNUL INSTITUTION OF HEIRS.
— Before the institution of heirs may be annulled
under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the
institution of heirs must be stated in the will; second,
the cause must be shown to be false; and third, it
must appear from the face of the will that the testator
would not have made such institution if he had
known the falsity of the cause.
2. ID.; ID.; CAUSE FOR ANNULMENT OF
INSTITUTION OF HEIRS MUST BE CLEAR; CASE
AT BAR. — If the impelling reason or cause for the
institution of the respondents as her heirs was the
testatrix’s belief that under the law she could not do
otherwise, she did not make it known in her will.
Surely if she was aware that succession to the
legitime takes place by operation of law,
independent of her own wishes, she would not have
found it convenient to name her supposed
compulsory heirs to their legitimes. Her express
adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory
scheme. But even this, like the petitioners’ own
proposition, is highly speculative of what was in the
mind of the testatrix when she executed her will.
One fact prevails, however, and it is the decedent’s
will does not state in a specific or unequivocal
manner the cause for such institution of heirs. We
cannot annul the same on the basis of guesswork or
uncertain implications.
3. ID.; ID.; TESTACY FAVORED AND WISHES OF
TESTATOR MUST PREVAIL. — Testacy is favored
and doubts are resolved on its side, especially
where the will evinces an intention on the part of the
testator to dispose of practically his whole estate, as
was done in this case. Moreover, so compelling is
the principle that intestacy should be avoided and
the wishes of the testator allowed to prevail, that we
could even vary the language of the will for the
purpose of giving it effect. As in one case where the
probate court has found, by final judgment, that the
testator was possessed of testamentary capacity
and her last will executed free from falsification,
fraud, trickery or undue influence this Court held, it is
its duty to give full expression to her will.
4. ID.; ID.; LEGALITY OF ADOPTION APART
FROM CASE OF TESTATE SUCCESSION,
ADOPTION NOT SUBJECT TO COLLATERAL
ATTACK. — The legality of the adoption of the
respondents by the testatrix can be assailed only in
a separate action brought for that purpose, and
cannot be the subject of a collateral attack.
5. REMEDIAL LAW; COURTS; INHERENT POWER
OF COURT. — Every court has the inherent power
to amend and control its processes and orders so as
to make them conformable to law and justice. That
the court a quo has limited the extent of the
petitioners’ intervention is also within its powers as
articulated by the Rules of Court.
DECISION
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed
with the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, ante
mortem, of her last will and testament. The probate
was opposed by the present petitioners Ruben
Austria, Consuelo Austria-Benta and Lauro Austria
Mozo, and still others who, like the petitioner, are
nephews and nieces of Basilia. This opposition was,
however, dismissed and the probate of the will
allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was
destined under the will to pass on to the respondents
Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz,
Alberto Cruz, and Luz Cruz-Salonga, all of whom
had been assumed and declared by Basilia as her
own legally adopted children.

On April 23, 1969, more than two years after her will
was allowed to probate, Basilia died. The
respondent Perfecto Cruz was appointed executor
without bond by the same court in accordance with
the provisions of the decedent’s will, notwithstanding
the blocking attempt pursued by the petitioner
Ruben Austria.
Finally, on November 5, 1959, the present
petitioners filed in the same proceedings a petition in
intervention for partition alleging in substance that
they are the nearest of kin of Basilia, and that the
five respondents Perfecto Cruz, Et Al., had not in
fact been adopted by the decedent in accordance
with law, in effect rendering these respondents mere
strangers to the decedent and without any right to
succeed as heirs.
Notwithstanding opposition by the respondent
Perfecto Cruz, as executor of the estate, the court a
quo allowed the petitioners’ intervention by its order
of December 22, 1959, couched in broad terms, as
follows: "The Petition in Intervention for Partition filed
by the above-named oppositors [Ruben Austria, Et
Al., ] dated November 5, 1969 is hereby granted."
In the meantime, the contending sides debated the
matter of authenticity or lack of it of the several
adoption papers produced and presented by the
respondents. On motion of the petitioners Ruben
Austria, Et Al., these documents were referred to the
National Bureau of Investigation for examination and
advice. N.B.I. report seems to bear out the
genuineness of the documents, but the petitioners,
evidently dissatisfied with the results, managed to
obtain a preliminary opinion from a Constabulary
questioned-document examiner whose views
undermine the authenticity of the said documents.
The petitioners Ruben Austria, Et Al., thus moved
the lower court to refer the adoption papers to the
Philippine Constabulary for further study. The
petitioners likewise located former personnel of the
court which appeared to have granted the
questioned adoption, and obtained written
depositions from two of them denying any
knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after
they were allowed to intervene, the petitioners
Ruben Austria, Et Al., moved the lower court to set
for hearing the matter of the genuineness of the
adoption of the respondents Perfecto Cruz, Et Al., by
the late Basilia. Before the date set by the court for
hearing arrived, however, the respondent Benita
Cruz-Meñez, who entered an appearance separately
from that of her brother Perfecto Cruz, filed on
February 28, 1963 a motion asking the lower court,
by way of alternative relief, to confine the petitioners’
intervention, should it be permitted, to properties not
disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the
respondent Benita’s motion. Both sides
subsequently submitted their respective
memoranda, and finally, the lower court issued an
order on June 4, 1963, delimiting the petitioners’
intervention to the properties of the deceased which
were not disposed of in the will.
The petitioners moved the lower court to reconsider
this latest order, eliciting thereby an opposition from
the respondents. On October 25, 1963 the same
court denied the petitioners’ motion for
reconsideration.
A second motion for reconsideration which set off a
long exchange of memoranda from both sides, was
summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to
annul the orders of June 4 and October 25, 1963
and the order of April 21, 1964, all restricting
petitioners’ intervention to properties that were not
included in the decedent’s testamentary dispositions.
The uncontested premises are clear. Two interests
are locked in dispute over the bulk of the estate of
the deceased. Arrayed on one side are the
petitioners Ruben Austria, Consuelo Austria-Benta
and Lauro Austria Mozo, three of a number of
nephews and nieces who are concededly the
nearest surviving blood relatives of the decedent. On
the other side are the respondents brothers and
sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani
Cruz, Alberto Cruz and Luz Cruz-Salonga, all of
whom heirs in the will of the deceased Basilia, and
all of whom claim kinship with the decedent by virtue
of legal adoption. At the heart of the controversy is
Basilia’s last will — immaculate in its extrinsic
validity since it bears the imprimatur of duly
conducted probate proceedings.
The complaint in intervention filed in the lower court
assails the legality of the tie which the respondent
Perfecto Cruz and his brothers and sisters claim to
have with the decedent. The lower court had,
however, assumed, by its orders in question, that the
validity or invalidity of the adoption is not material
nor decisive on the efficacy of the institution of heirs;
for, even if the adoption in question were spurious,
the respondents Perfecto Cruz, Et Al., will
nevertheless succeed not as compulsory heirs but
as testamentary heirs instituted in Basilia’s will. This
ruling apparently finds support in article 842 of the
Civil Code which reads:
"One who has no compulsory heirs may dispose of
by will all his estate or any part of it in favor of any
person having capacity to succeed.
"One who has compulsory heirs may dispose of his
estate provided he does not contravene the
provisions of this Code with regard to the legitime of
said heirs."
The lower court must have assumed that since the
petitioners nephews and niece are not compulsory
heirs, they do not possess that interest which can be
prejudiced by a free-wheeling testamentary
disposition. The petitioners’ interest is confined to
properties, if any, that have not been disposed of in
the will, for to that extent intestate succession can
take place and the question of the veracity of the
adoption acquires relevance.
The petitioners nephews and niece, upon the other
hand, insist that the entire estate should descend to
them by intestacy by reason of the intrinsic nullity of
the institution of heirs embodied in the decedent’s
will. They have thus raised squarely the issue of
whether or not such institution of heirs would retain
efficacy in the event there exists proof that the
adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article
850 of the Civil Code which reads:
"The statement of a false cause for the institution of
an heir shall be considered as not written, unless it
appears from the will that the testator would not
have made such institution if he had known the
falsity of such cause."cralaw virtua1aw library
Coming closer to the center of the controversy, the
petitioners have called the attention of the lower
court and this Court to the following pertinent
portions of the will of the deceased which
recite:chanrob1es virtual 1aw library
"III
"Ang aking mga sapilitang tagapagmana (herederos
forzosos) ay ang aking itinuturing na mga anak na
tunay (Hijos legalmente adoptados) na sina
Perfecto, Alberto, Luz, Benita at Isagani, na pawang
may apelyidong Cruz.
x           x          x
"V
"Kung ako ay bawian ng Dios ng buhay, ay aking
ipinamamana ang aking mga ari-ariang maiiwan, sa
kaparaanang sumusunod:jgc:chanrobles.com.ph
"A. — Aking ipinamamana sa aking nabanggit na
limang anak na sina Perfecto, Alberto, Luz, Benita at
Isagani, na pawang may apelyidong Cruz, na
parepareho ang kaparti ng bawa’t isa at walang
lamangan (en partes iguales), bilang kanilang
sapilitang mana (legiti[ma]), ang kalahati (1/2) ng
aking kaparti sa lahat ng aming ari-ariang
gananciales ng aking yumaong asawang Pedro Cruz
na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa
No. 1 ng parafo IV ng testamentong ito, ang kalahati
(1/2) ng mga lagay na lupa at palaisdaan na nasa
Obando at Polo, Bulacan, na namana ko sa aking
yumaong ama na si Calixto Austria, at ang kalahati
(1/2) ng ilang lagay na lupa na nasa Tinejeros,
Malabon, Rizal, na aking namana sa yumao kong
kapatid na si Fausto Austria."cralaw virtua1aw library
The tenor of the language used, the petitioners
argue, gives rise to the inference that the late Basilia
was deceived into believing that she was legally
bound to bequeath one-half of her entire estate to
the respondents Perfecto Cruz, Et. Al. as the latter’s
legitime. The petitioners further contend that had the
deceased known the adoption to be spurious, she
would not have instituted the respondents at all —
the basis of the institution being solely her belief that
they were compulsory heirs. Proof therefore of the
falsity of the adoption would cause a nullity of the
institution of heirs and the opening of the estate wide
to intestacy. Did the lower court then abuse its
discretion or act in violation of the rights of the
parties in barring the petitioners nephews and niece
from registering their claim even to properties
adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under
article 850 of the Civil Code, the following requisites
must concur: First, the cause for the institution of
heirs must be stated in the will; second, the cause
must be shown to be false; and third, it must appear
from the face of the will that the testator would not
have made such institution if he had known the
falsity of the cause.
The petitioners would have us imply, from the use of
the terms, "sapilitang tagapagmana" (compulsory
heirs) and "sapilitang mana" (legitime), that the
impelling reason or cause for the institution of the
respondents was the testatrix’s belief that under the
law she could not do otherwise. If this were indeed
what prompted the testatrix in instituting the
respondents, she did not make it known in her will.
Surely if she was aware that succession to the
legitime takes place by operation of law,
independent of her own wishes, she would not have
found it convenient to name her supposed
compulsory heirs to their legitimes. Her express
adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory
scheme. But even this, like the petitioners’ own
proposition, is highly speculative of what was in the
mind of the testatrix when she executed her will.
One fact prevails, however, and it is that the
decedent’s will does not state in a specific or
unequivocal manner the cause for such institution of
heirs. We cannot annul the same on the basis of
guesswork or uncertain implications.
And even if we should accept the petitioners’ theory
that the decedent instituted the respondents perfecto
Cruz, Et. Al. solely because she believed that the
law commanded her to do so, on the false
assumption that her adoption of these respondents
was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a
positive injunction to ignore whatever false cause the
testator may have written in his will for the institution
of heirs. Such institution may be annulled only when
one is satisfied, after an examination of the will, that
the testator clearly would not have made the
institution if he had known the cause for it to be
false. Now, would the late Basilia have caused the
revocation of the institution of heirs if she had known
that she was mistaken in treating these heirs as her
legally adopted children? Or would she have
instituted them nonetheless?
The decedent’s will, which alone should provide the
answer, is mute on this point or at best is vague and
uncertain. The phrases, "mga sapilitang
tagapagmana" and "sapilitang mana," were
borrowed from the language of the law on
succession and were used, respectively, to de scribe
the class of heirs instituted and the abstract object of
the inheritance. They offer no absolute indication
that the decedent would have willed her estate other
than the way she did if she had known that she was
not bound by law to make allowance for legitimes.
Her disposition of the free portion of her estate (libre
disposicion) which largely favored the respondent
Perfecto Cruz, the latter’s children, and the children
of the respondent Benita Cruz, shows a perceptible
inclination on her part to give to the respondents
more than what she thought the law enjoined her to
give to them. Compare this with the relatively small
devise of land which the decedent had left for her
blood relatives, including the petitioners Consuelo
Austria-Benta and Lauro Mozo and the children of
the petitioner Ruben Austria. Were we to exclude the
respondents Perfecto Cruz, et al, from the
inheritance, then the petitioners and the other
nephews and nieces would succeed to the bulk of
the estate by intestacy — a result which would
subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should
be swept away by these explicit injunctions in the
Civil Code: "The words of a will are to receive an
interpretation which will give to every expression
some effect, rather than one which will render any of
the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will
prevent intestacy."
Testacy is favored and doubts are resolved on its
side, especially where the will evinces an intention
on the part of the testator to dispose of practically his
whole estate, 2 as was done in this case. Moreover,
so compelling is the principle that intestacy should
be avoided and the wishes of the testator allowed to
prevail, that we could even vary the language of the
will for the purpose of giving it effect. A probate court
has found, by final judgment, that the late Basilia
Austria Vda. de Cruz was possessed of
testamentary capacity and her last will executed free
from falsification, fraud, trickery or undue influence.
In this situation, it becomes our duty to give full
expression to her will.
At all events, the legality of the adoption of the
respondents by the testatrix can be assailed only in
a separate action brought for that purpose, and
cannot be the subject of a collateral attack.
To the petitioners’ charge that the lower court had no
power to reverse its order of December 22, 1969,
suffice it to state that, as borne by the records, the
subsequent orders complained of served merely to
clarify the first — an act which the court could legally
do. Every court has the inherent power to amend
and control its processes and orders so as to make
them conformable to law and justice. 6 That the
court a quo has limited the extent of the petitioners’
intervention is also within its powers as articulated
by the Rules of Court. 7
ACCORDINGLY, the present petition is denied, at
petitioners cost.

SECOND DIVISION
G.R. No. 129505. January 31, 2000
OCTAVIO S. MALOLES II,, Petitioner, v. PACITA
DE LOS REYES PHILLIPS, Respondent.
[G.R. No. 133359. January 31, 2000
OCTAVIO S. MALOLES II,, Petitioner, v. COURT
OF APPEALS, HON. FERNANDO V. GOROSPE,
JR., in his Official Capacity as Presiding Judge
of RTC-Makati, Branch 61, and PACITA PHILLIPS
as the alleged executrix of the alleged will of the
late Dr. Arturo de Santos, Respondents.
DECISION
MENDOZA, J.:
These are petitions for review on certiorari of the
decisions of the Thirteenth and the Special Eighth
Divisions of the Court of Appeals which ruled that
petitioner has no right to intervene in the settlement
of the estate of Dr. Arturo de Santos. The cases
were consolidated considering that they involve the
same parties and some of the issues raised are the
same.
The facts which gave rise to these two petitions are
as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and
a resident of Makati City, filed a petition for probate
of his will1 in the Regional Trial Court, Branch 61,
Makati, docketed as Sp. Proc. No. M-4223. In his
petition, Dr. De Santos alleged that he had no
compulsory heirs; that he had named in his will as
sole legatee and devisee the Arturo de Santos
Foundation, Inc.; that he disposed by his will his
properties with an approximate value of not less than
P2,000,000.00; and that copies of said will were in
the custody of the named executrix, private
respondent Pacita de los Reyes Phillips. A copy of
the will2 was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe,
Jr. of RTC-Makati, Branch 61 issued an order
granting the petition and allowing the will. The order
reads:
On 03 August 1995, the Court issued an Order
setting the hearing of the petition on 12 September
1995, at 8:30 oclock in the morning, copies of which
were served to Arturo de Santos Foundation, Inc.
and Ms. Pacita de los Reyes Phillips (Officers
Return, dated 04 September 1995 attached to the
records). When the case was called for hearing on
the date set, no oppositor appeared nor any written
opposition was ever filed and on motion of petitioner,
he was allowed to adduce his evidence in support of
the petition.
Petitioner personally appeared before this Court and
was placed on the witness stand and was directly
examined by the Court through "free wheeling"
questions and answers to give this Court a basis to
determine the state of mind of the petitioner when he
executed the subject will. After the examination, the
Court is convinced that petitioner is of sound and
disposing mind and not acting on duress, menace
and undue influence or fraud, and that petitioner
signed his Last Will and Testament on his own free
and voluntary will and that he was neither forced nor
influenced by any other person in signing it.
Furthermore, it appears from the petition and the
evidence adduced that petitioner in his lifetime,
executed his Last Will and Testament (Exhs. "A", "A-
1", "A-2", "A-4", "A-5") at his residence situated at 9
Bauhinia corner Intsia Streets, Forbes Park, Makati
City; said Last Will and Testament was signed in the
presence of his three (3) witnesses, namely, to wit:
Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-
16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-
3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty.
Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-
14", "A-17", & "A-18"), who in turn, in the presence
of the testator and in the presence of each and all of
the witnesses signed the said Last Will and
Testament and duly notarized before Notary Public
Anna Melissa L. Rosario (Exh. "A-15"); on the actual
execution of the Last Will and Testament, pictures
were taken (Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de
Santos Foundation, Inc., with address at No. 9
Bauhinia corner Intsia Streets, Forbes Park, Makati
City has been named as sole legatee and devisee of
petitioners properties, real and personal,
approximately valued at not less than P2 million, Ms.
Pacita de los Reyes Phillips was designated as
executor and to serve as such without a bond.
From the foregoing facts, the Court finds that the
petitioner has substantially established the material
allegations contained in his petition. The Last Will
and Testament having been executed and attested
as required by law; that testator at the time of the
execution of the will was of sane mind and/or not
mentally incapable to make a Will; nor was it
executed under duress or under the influence of fear
or threats; that it was in writing and executed in the
language known and understood by the testator duly
subscribed thereof and attested and subscribed by
three (3) credible witnesses in the presence of the
testator and of another; that the testator and all the
attesting witnesses signed the Last Will and
Testament freely and voluntarily and that the testator
has intended that the instrument should be his Will
at the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner
(testator himself) the petition for the allowance of the
Last Will and Testament of Arturo de Santos is
hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos
died on February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II
filed a motion for intervention claiming that, as the
only child of Alicia de Santos (testators sister) and
Octavio L. Maloles, Sr., he was the sole full-blooded
nephew and nearest of kin of Dr. De Santos. He
likewise alleged that he was a creditor of the
testator. Petitioner thus prayed for the
reconsideration of the order allowing the will and the
issuance of letters of administration in his name.
On the other hand, private respondent Pacita de los
Reyes Phillips, the designated executrix of the will,
filed a motion for the issuance of letters
testamentary with Branch 61. Later, however, private
respondent moved to withdraw her motion. This was
granted, while petitioner was required to file a
memorandum of authorities in support of his claim
that said court (Branch 61) still had jurisdiction to
allow his intervention.3cräläwvirtualibräry
Petitioner filed his memorandum of authorities on
May 13, 1996. On the other hand, private
respondent, who earlier withdrew her motion for the
issuance of letters testamentary in Branch 61, refiled
a petition for the same purpose with the Regional
Trial Court, Makati, which was docketed as Sp. Proc.
No. M-4343 and assigned to Branch 65.
Upon private respondents motion, Judge Salvador
Abad Santos of Branch 65 issued an order, dated
June 28, 1996, appointing her as special
administrator of Dr. De Santoss estate.
On July 29, 1996, petitioner sought to intervene in
Sp. Proc. No. M-4343 and to set aside the
appointment of private respondent as special
administrator. He reiterated that he was the sole and
full blooded nephew and nearest of kin of the
testator; that he came to know of the existence of
Sp. Proc. No. M-4343 only by accident; that the
probate proceedings in Sp. Proc. No. M-4223 before
Branch 61 of the same court was still pending; that
private respondent misdeclared the true worth of the
testators estate; that private respondent was not fit
to be the special administrator of the estate; and that
petitioner should be given letters of administration
for the estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered
the transfer of Sp. Proc. No. M-4343 to Branch 61,
on the ground that "[it] is related to the case before
Judge Gorospe of RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223,
Judge Gorospe had denied on August 26, 1996
petitioners motion for intervention. Petitioner brought
this matter to the Court of Appeals which, in a
decision4 promulgated on February 13, 1998, upheld
the denial of petitioners motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated
September 4, 1996, returning the records of Sp.
Proc. No. M-4343 to Branch 65 on the ground that
there was a pending case involving the Estate of
Decedent Arturo de Santos pending before said
court. The order reads:
Acting on the ORDER dated 28 August 1996 of
Branch 65, this Court, transferring this case to this
Branch 61 on the ground that this case is related
with a case before this Court, let this case be
returned to Branch 65 with the information that there
is no related case involving the ESTATE OF
DECEDENT ARTURO DE SANTOS pending before
this Branch.
There is, however, a case filed by ARTURO DE
SANTOS, as petitioner under Rule 76 of the Rules of
Court for the Allowance of his will during his lifetime
docketed as SP. PROC. NO. M-4223 which was
already decided on 16 February 1996 and has
become final.
It is noted on records of Case No. M-4223 that after
it became final, herein Petitioner Pacita de los Reyes
Phillips filed a MOTION FOR THE ISSUANCE OF
LETTERS TESTAMENTARY, which was
subsequently withdrawn after this Court, during the
hearing, already ruled that the motion could not be
admitted as the subject matter involves a separate
case under Rule 78 of the Rules of Court, and
movant withdrew her motion and filed this case (No.
4343).
Octavio de Santos Maloles [II] filed a MOTION FOR
INTERVENTION before Case No. M-4223 and this
motion was already DENIED in the order (Branch
61) of 26 August 1996 likewise for the same grounds
that the matter is for a separate case to be filed
under Rule 78 of the Rules of Court and cannot be
included in this case filed under Rule 76 of the Rules
of Court.
It is further noted that it is a matter of policy that
consolidation of cases must be approved by the
Presiding Judges of the affected Branches.
Initially, in his decision dated September 23,
1996,5 Judge Abad Santos appeared firm in his
position that " . . . it would be improper for (Branch
65) to hear and resolve the petition (Sp. Proc. No.
M-4343)," considering that the probate proceedings
were commenced with Branch 61. He thus ordered
the transfer of the records back to the latter branch.
However, he later recalled his decision and took
cognizance of the case "to expedite the
proceedings." Thus, in his Order, dated October 21,
1996, he stated:
Considering the refusal of the Hon. Fernando V.
Gorospe, Jr. of Branch 61 to continue hearing this
case notwithstanding the fact that said branch began
the probate proceedings of the estate of the
deceased and must therefore continue to exercise
its jurisdiction to the exclusion of all others, until the
entire estate of the testator had been partitioned and
distributed as per Order dated 23 September 1996,
this branch (Regional Trial Court Branch 65) shall
take cognizance of the petition if only to expedite the
proceedings, and under the concept that the
Regional Trial Court of Makati City is but one court.
Furnish a copy of this order to the Office of the Chief
justice and the Office of the Court Administrator, of
the Supreme Court; the Hon. Fernando V. Gorospe,
Jr.; Pacita De Los Reyes Phillips, Petitioner; and
Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted
petitioners motion for intervention. Private
respondent moved for a reconsideration but her
motion was denied by the trial court. She then filed a
petition for certiorari in the Court of Appeals which,
on February 26, 1997, rendered a decision6 setting
aside the trial courts order on the ground that
petitioner had not shown any right or interest to
intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following
issues:
1. Whether or not the Honorable Regional Trial
Court - Makati, Branch 61 has lost jurisdiction to
proceed with the probate proceedings upon its
issuance of an order allowing the will of Dr. Arturo de
Santos
2. Whether or not the Honorable (Regional Trial
Court - Makati, Branch 65) acquired jurisdiction over
the petition for issuance of letters testamentary filed
by (private) respondent.
3. Whether or not the petitioner, being a creditor of
the late Dr. Arturo de Santos, has a right to intervene
and oppose the petition for issuance of letters
testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of
forum shopping in filing her petition for issuance of
letters testamentary with the Regional Trial Court -
Makati, Branch 65 knowing fully well that the probate
proceedings involving the same testate estate of the
decedent is still pending with the Regional Trial
Court - Makati, Branch 61.
First. Petitioner contends that the probate
proceedings in Branch 61 of RTC-Makati did not
terminate upon the issuance of the order allowing
the will of Dr. De Santos. Citing the cases
of Santiesteban v. Santiesteban7 and Tagle v.
Manalo,8 he argues that the proceedings must
continue until the estate is fully distributed to the
lawful heirs, devisees, and legatees of the testator,
pursuant to Rule 73, 1 of the Rules of Court.
Consequently, petitioner contends that Branch 65
could not lawfully act upon private respondents
petition for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that
the authority of the court is limited to ascertaining the
extrinsic validity of the will, i.e., whether the testator,
being of sound mind, freely executed the will in
accordance with the formalities prescribed by
law.9cräläwvirtualibräry
Ordinarily, probate proceedings are instituted only
after the death of the testator, so much so that, after
approving and allowing the will, the court proceeds
to issue letters testamentary and settle the estate of
the testator. The cases cited by petitioner are of
such nature. In fact, in most jurisdictions, courts
cannot entertain a petition for probate of the will of a
living testator under the principle of ambulatory
nature of wills.10cräläwvirtualibräry
However, Art. 838 of the Civil Code authorizes the
filing of a petition for probate of the will filed by the
testator himself. It provides:
Civil Code, Art. 838. No will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime, petition
the court having jurisdiction for the allowance of his
will. In such case, the pertinent provisions of the
Rules of Court for the allowance of wills after the
testators death shall govern.
The Supreme Court shall formulate such additional
Rules of Court as may be necessary for the
allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the
will, either during the lifetime of the testator or after
his death, shall be conclusive as to its due
execution.
Rule 76, 1 likewise provides:
Sec. 1 Who may petition for the allowance of will. -
Any executor, devisee, or legatee named in a will, or
any other person interested in the estate, may, at
any time after the death of the testator, petition the
court having jurisdiction to have the will allowed,
whether the same be in his possession or not, or is
lost or destroyed.
The testator himself may, during his lifetime, petition
in the court for the allowance of his will.
The rationale for allowing the probate of wills during
the lifetime of testator has been explained by the
Code Commission thus:
Most of the cases that reach the courts involve either
the testamentary capacity of the testator or the
formalities adopted in the execution of wills. There
are relatively few cases concerning the intrinsic
validity of testamentary dispositions. It is far easier
for the courts to determine the mental condition of a
testator during his lifetime than after his death.
Fraud, intimidation and undue influence are
minimized. Furthermore, if a will does not comply
with the requirements prescribed by law, the same
may be corrected at once. The probate during the
testators life, therefore, will lessen the number of
contest upon wills. Once a will is probated during the
lifetime of the testator, the only questions that may
remain for the courts to decide after the testators
death will refer to the intrinsic validity of the
testamentary dispositions. It is possible, of course,
that even when the testator himself asks for the
allowance of the will, he may be acting under duress
or undue influence, but these are rare cases.
After a will has been probated during the lifetime of
the testator, it does not necessarily mean that he
cannot alter or revoke the same before his death.
Should he make a new will, it would also be
allowable on his petition, and if he should die before
he has had a chance to present such petition, the
ordinary probate proceeding after the testators death
would be in order.11cräläwvirtualibräry
Thus, after the allowance of the will of Dr. De Santos
on February 16, 1996, there was nothing else for
Branch 61 to do except to issue a certificate of
allowance of the will pursuant to Rule 73, 12 of the
Rules of Court. There is, therefore, no basis for the
ruling of Judge Abad Santos of Branch 65 of RTC-
Makati that -Nex old
Branch 61 of the Regional Trial Court of Makati
having begun the probate proceedings of the estate
of the deceased, it continues and shall continue to
exercise said jurisdiction to the exclusion of all
others. It should be noted that probate proceedings
do not cease upon the allowance or disallowance of
a will but continues up to such time that the entire
estate of the testator had been partitioned and
distributed.
The fact that the will was allowed during the lifetime
of the testator meant merely that the partition and
distribution of the estate was to be suspended until
the latters death. In other words, the petitioner,
instead of filing a new petition for the issuance of
letters testamentary, should have simply filed a
manifestation for the same purpose in the probate
court.12cräläwvirtualibräry
Petitioner, who defends the order of Branch 65
allowing him to intervene, cites Rule 73, 1 which
states:
Where estate of deceased persons settled. - If the
decedent is an inhabitant of the Philippines at the
time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First
Instance in the province in which he resides at the
time of his death, and if he is an inhabitant of a
foreign country, the Court of First Instance of any
province in which he had estate. The court first
taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion
of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence
of the decedent, or of the location of his estate, shall
not be contested in a suit or proceeding, except in
an appeal from that court, in the original case, or
when the want of jurisdiction appears on the record.
The above rule, however, actually provides for the
venue of actions for the settlement of the estate of
deceased persons. In Garcia Fule v. Court of
Appeals, it was held:13cräläwvirtualibräry
The aforequoted Section 1, Rule 73 (formerly Rule
75, Section 1), specifically the clause "so far as it
depends on the place of residence of the decedent,
or of the location of the state," is in reality a matter of
venue, as the caption of the Rule indicates:
"Settlement of Estate of Deceased Persons. Venue
and Processes." It could not have been intended to
define the jurisdiction over the subject matter,
because such legal provision is contained in a law of
procedure dealing merely with procedural matters.
Procedure is one thing, jurisdiction over the subject
matter is another. The power or authority of the court
over the subject matter "existed was fixed before
procedure in a given cause began." That power or
authority is not altered or changed by procedure,
which simply directs the manner in which the power
or authority shall be fully and justly exercised. There
are cases though that if the power is not exercised
conformably with the provisions of the procedural
law, purely, the court attempting to exercise it loses
the power to exercise it legally. However, this does
not amount to a loss of jurisdiction over the subject
matter. Rather, it means that the court may thereby
lose jurisdiction over the person or that the judgment
may thereby be rendered defective for lack of
something essential to sustain it. The appearance of
this provision in the procedural law at once raises a
strong presumption that it has nothing to do with the
jurisdiction of the court over the subject matter. In
plain words, it is just a matter of method, of
convenience to the parties.
Indeed, the jurisdiction over probate proceedings
and settlement of estates with approximate value of
over P100,000.00 (outside Metro Manila) or
P200,000.00 (in Metro Manila) belongs to the
regional trial courts under B.P. Blg. 129, as
amended. The different branches comprising each
court in one judicial region do not possess
jurisdictions independent of and incompatible with
each other.14cräläwvirtualibräry
It is noteworthy that, although Rule 73, 1 applies
insofar as the venue of the petition for probate of the
will of Dr. De Santos is concerned, it does not bar
other branches of the same court from taking
cognizance of the settlement of the estate of the
testator after his death. As held in the leading case
of Bacalso v. Ramolote:15cräläwvirtualibräry
The various branches of the Court of First Instance
of Cebu under the Fourteenth Judicial District, are a
coordinate and co-equal courts, and the totality of
which is only one Court of First Instance. The
jurisdiction is vested in the court, not in the judges.
And when a case is filed in one branch, jurisdiction
over the case does not attach to the branch or judge
alone, to the exclusion of the other branches. Trial
may be held or proceedings continue by and before
another branch or judge. It is for this reason that
Section 57 of the Judiciary Act expressly grants to
the Secretary of Justice, the administrative right or
power to apportion the cases among the different
branches, both for the convenience of the parties
and for the coordination of the work by the different
branches of the same court. The apportionment and
distribution of cases does not involve a grant or
limitation of jurisdiction, the jurisdiction attaches and
continues to be vested in the Court of First Instance
of the province, and the trials may be held by any
branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of
Makati City has jurisdiction over Sp. Proc. No. M-
4343.
Second. Petitioner claims the right to intervene in
and oppose the petition for issuance of letters
testamentary filed by private respondent. He argues
that, as the nearest next of kin and creditor of the
testator, his interest in the matter is material and
direct. In ruling that petitioner has no right to
intervene in the proceedings before Branch 65 of
RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or
legatee under the will of the decedent Arturo de
Santos. Neither is he a compulsory heir of the latter.
As the only and nearest collateral relative of the
decedent, he can inherit from the latter only in case
of intestacy. Since the decedent has left a will which
has already been probated and disposes of all his
properties the private respondent can inherit only if
the said will is annulled. His interest in the decedents
estate is, therefore, not direct or immediate.
His claim to being a creditor of the estate is a
belated one, having been raised for the first time
only in his reply to the opposition to his motion to
intervene, and, as far as the records show, not
supported by evidence.
. . . . [T]he opposition must come from one with a
direct interest in the estate or the will, and the private
respondent has none. Moreover, the ground cited in
the private respondents opposition, that the
petitioner has deliberately misdeclared the truth
worth and value of the estate, is not relevant to the
question of her competency to act as executor.
Section 2, Rule 76 of the Rules of Court requires
only an allegation of the probable value and
character of the property of the estate. The true
value can be determined later on in the course of the
settlement of the estate.16cräläwvirtualibräry
Rule 79, 1 provides:
Opposition to issuance of letters testamentary.
Simultaneous petition for administration. - Any
person interested in a will may state in writing the
grounds why letters testamentary should not issue to
the persons named therein as executors, or any of
them, and the court, after hearing upon notice, shall
pass upon the sufficiency of such grounds. A petition
may, at the same time, be filed for letters of
administration with the will annexed.
Under this provision, it has been held that an
"interested person" is one who would be benefited
by the estate, such as an heir, or one who has a
claim against the estate, such as a creditor, and
whose interest is material and direct, not merely
incidental or contingent.17cräläwvirtualibräry
Even if petitioner is the nearest next of kin of Dr. De
Santos, he cannot be considered an "heir" of the
testator. It is a fundamental rule of testamentary
succession that one who has no compulsory or
forced heirs may dispose of his entire estate by will.
Thus, Art. 842 of the Civil Code provides:
One who has no compulsory heirs may dispose by
will of all his estate or any part of it in favor of any
person having capacity to succeed.
One who has compulsory heirs may dispose of his
estate provided he does not contravene the
provisions of this Code with regard to the legitimate
of said heirs.
Compulsory heirs are limited to the testators -
(1) Legitimate children and descendants, with
respect to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children
and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural
children by legal fiction;
(5) Other illegitimate children referred to in Article
287 of the Civil Code.18cräläwvirtualibräry
Petitioner, as nephew of the testator, is not a
compulsory heir who may have been preterited in
the testators will.
Nor does he have any right to intervene in the
settlement proceedings based on his allegation that
he is a creditor of the deceased. Since the testator
instituted or named an executor in his will, it is
incumbent upon the Court to respect the desires of
the testator. As we stated in Ozaeta v.
Pecson:19cräläwvirtualibräry
The choice of his executor is a precious prerogative
of a testator, a necessary concomitant of his right to
dispose of his property in the manner he wishes. It is
natural that the testator should desire to appoint one
of his confidence, one who can be trusted to carry
out his wishes in the disposal of his estate. The
curtailment of this right may be considered a
curtailment of the right to dispose.
Only if the appointed executor is incompetent,
refuses the trust, or fails to give bond may the court
appoint other persons to administer the
estate.20 None of these circumstances is present in
this case.

Third.  Petitioner contends that private respondent is

guilty of forum shopping when she filed the petition
for issuance of letters testamentary (Sp. Proc. No.
M-4343) while the probate proceedings (Sp. Proc.
No. M-4223) were still pending. According to
petitioner, there is identity of parties, rights asserted,
and reliefs prayed for in the two actions which are
founded on the same facts, and a judgment in either
will result in res judicata in the other.

This contention has no merit. As stated earlier, the

petition for probate was filed by Dr. De Santos, the
testator, solely for the purpose of authenticating his
will. Upon the allowance of his will, the proceedings
were terminated.

On the other hand, the petition for issuance of letters

testamentary was filed by private respondent, as
executor of the estate of Dr. De Santos, for the
purpose of securing authority from the Court to
administer the estate and put into effect the will of
the testator. The estate settlement proceedings
commenced by the filing of the petition terminates
upon the distribution and delivery of the legacies and
devises to the persons named in the will. Clearly,
there is no identity between the two petitions, nor
was the latter filed during the pendency of the
former. There was, consequently, no forum
shopping.

WHEREFORE, the petition is DENIED and the

decisions of the Court of Appeals are hereby
AFFIRMED.

SO ORDERED.
SECOND DIVISION
G.R. No. 191031, October 05, 2015
DOLORES L. HACBANG AND BERNARDO J.
HACBANG, Petitioners, v. ATTY. BASILIO H.
ALO, Respondent.
DECISION
BRION, J.:*
This petition for review on certiorari  seeks to reverse
the 13 October 2009 Decision and the 21 January
2010 resolution of the Court of Appeals (CA) in CA-
G.R CV No. 83137.1 The CA affirmed the Quezon
City Regional Trial Court's (RTC) dismissal of the
petitioners' complaint in Civil Case No. Q 99-
366602 for lack of cause of action.
ANTECEDENTS
On 3 April 1937, Bishop Sofronio Hacbang (Bishop
Sofronio) died leaving several properties behind.
Among these was Lot No. 8-A of subdivision Plan
Psd-6227 located at España Street, San Juan,
Rizal,3 covered by Transfer Certificate of Title
(TCT) No. (19896) 227644 (the subject lot).
Bishop Sofronio was survived by his parents, Basilio
and Maria Hacbang, and his siblings: Perfecto
Hacbang, Joaquin Hacbang, Lucia Teresita
Hacbang, and Dolores Hacbang Alo. Petitioner
Dolores L. Hacbang is the grandchild of Perfecto
while petitioner Bernardo Hacbang (Bernardo) is a
son of Joaquin. The respondent Basilio Alo is the
son of Dolores.
Bishop Sofronio left a will denominated as Ultima
Voluntad y Testamento. He left one-half of his
properties to his parents and devised the other half -
including the subject lot - to his sister Dolores. The
pertinent portions of his will read:cralawlawlibrary
FOURTH: By these presents I give, name, declare
and institute as heirs my parents BASILIO
HACBANG and MARIA GABORNY DE HACBANG
of one-half of all my properties, whether real,
personal or mixed, in whatever place they may be
found, whether they were acquired before or after
the execution of this testament, including all the
properties that at the time of my death I may have
the power to dispose of by will, and which properties
consist of the following:chanRoblesvirtualLawlibrary
Fifty (50) percent of the shares of stock that I own in
the "SAMAR NAVIGATION CO. INC."
A parcel of land with its camarin situated in the
Municipality of Carigara, Province of Leyte.
A parcel of land in the Barrio of Pinamopuan, of the
Municipality of Capoocan, Province of Leyte.
A parcel of land with house and planted to coconuts
in the Barrio of Sorsogon, Municipality of Sta.
Margarita, Province of Samar.
FIFTH: The other remaining half of my properties
wherever they may be located, by these presents
I give, cede and hand over to my sister Dolores
Hacbang, which properties are more particularly
described as follows:chanRoblesvirtualLawlibrary
Fifty (50) percent of my stockholdings in the
"SAMAR NAVIGATION CO. INC."
A piece of land with one house where the Botica San
Antonio is located, in the Municipality of Calbayog,
Province of Samar.
A piece of land with house in Acedillo St.,
Municipality of Calbayog, Province of Samar.
A piece of land with 1 camarin in the barrio of
Sorsogon, Municipality of Sta. Margarita, Province of
Samar.
Six (6) Parcels of land located in "NEW MANILA,"
Municipality of San Juan, Province of Rizal, in 7 th St.,
described as follows: Block 7, Lots 16, 18, 20 and
22, and in 3rd Street, Block 3, Lots 4 and 6.
A piece of land situated in Espana St.,
Municipality of San Juan del Monte of the
Province of Rizal, marked as Lot 8-A, Block 17,
of 1,403 square meters in area.4chanrobleslaw
On 16 April 1937, a petition for the probate of Bishop
Sofronio's will and the settlement of his estate was
filed before the then Court of First Instance (CFI) of
Manila. The petition was docketed as SP. PROC.
No. 51199.
On 21 May 1937, the CFI admitted Bishop Sofronio's
will to probate.5
The records are bare with respect to what happened
next. They show, however, that the CFI ordered the
proceedings to be archived on 2 November 1957.
On 24 September 1971, the Register of Deeds of
Quezon City appears to have issued TCT No.
169342 over the subject lot in the name of
respondent Basilio H. Alo. TCT No. 169342
cancelled TCT No. 117322/T-500. However, this
Court cannot determine the circumstances
surrounding the issuance of TCT No. 169342 or the
relationship between TCT No. 117322/T-500 and
TCT No. (19896) 227644 due to the inadequacy of
the documents on record.
On 17 March 1975, Dolores Hacbang Alo moved to
revive the settlement proceedings because the CFI
had not yet completed adjudicating the properties.
On 23 May 1975, the CFI denied the motion for
revival because the order to archive "had long
become final and executory."6
On 1 February 1999, petitioners Dolores L. Hacbang
and Bernardo filed a petition to cancel TCT No.
169342 on the ground that it was fraudulently
secured. In support of their allegations, they
submitted the 5 March 1997 Investigation Report of
Land Registration Authority (LRA) Investigator
Rodrigo I. Del Rosario. The report concluded that
TCT No. 117322 was of "doubtful authenticity" and
was neither derived from TCT No. 117322 nor
issued by the Registry of Deeds of Quezon City on
24 September 1971 at 2:30 PM.
In his Answer dated 18 August 1999, Basilio denied
all allegations of irregularity and wrongdoing. He
also moved to dismiss the petition because the
petitioners were neither heirs nor devisees of Bishop
Sofronio and had no legal interest in the subject lot.
On 7 January 2003, the RTC dismissed the petition
because the petitioners had no right to prosecute the
case on the subject lot. The RTC noted that Bishop
Sofronio's will had already been admitted into
probate in 1937; thus, the intrinsic validity of the will
is no longer in question. Though the settlement
proceedings were archived, Bishop Sofronio already
designated his heirs: Bishop Sofronio's parents were
compulsory heirs entitled to half of his estate while
the respondent's mother, Dolores Hacbang Alo, was
devised the remaining half (the free portion). Thus,
the petitioners, who are neither compulsory nor
testamentary heirs, are not real parties in interest.
The petitioners moved for reconsideration which the
RTC denied on 19 August 2003.
The petitioners appealed to the CA, arguing that: (1)
Bishop Sofronio's will did not validly transfer the
subject property to Dolores Hacbang Alo; (2) the
probate of the will is not conclusive as to the validity
of its intrinsic provisions; and (3) only a final decree
of distribution of the estate vests title on the
properties from the estate on the distributees. 7 The
appeal was docketed as CA-G.R CV No. 83137.
They further argued that the distribution of the estate
should be governed by intestate succession
because: (1) the subject property was not
adjudicated; and (2) the settlement proceedings
were archived and dismissed. Thus, all the
properties passed on to and became part of the
estate of Bishop Sofronio's parents. The petitioners
concluded that they had legal interest in the subject
lot as representatives of their ascendants, the other
children of Bishop Sofronio's parents.
In his appeal brief, the respondent insisted that the
petitioners do not have a clear legal right to maintain
the suit because: (1) as collateral relatives, they
cannot invoke the right of representation to the
estate of Bishop Sofronio; and (2) they are not real
parties in interest and have no right of action over
the subject lot.
On 13 October 2009, the CA affirmed the RTC's
order of dismissal. The CA held that the admission
of Bishop Sofronio's will to probate precluded
intestate succession unless the will was intrinsically
invalid or failed to completely dispose of his estate.
Contrary to the petitioners' contention, the settlement
proceedings were not dismissed but archived; the
will did not lose its validity merely because the
proceedings were archived. Undoubtedly, Bishop
Sofronio did not die intestate.
The CA denied the petitioners' claim to a right of
inheritance by representation. It held that the
presence of Bishop Sofronio's parents during his
death excluded his brothers and sisters from being
compulsory heirs; the petitioners cannot represent
those who are hot entitled to succeed. Considering
that they are neither compulsory nor testamentary
heirs, petitioners have no legal interest in the subject
property.
The petitioners moved for reconsideration which the
CA denied on 21 January 2010. The denial paved
the way for the petitioners to file the present petition
for review on certiorari.
THE PETITION
The petitioners argue: (1) that the CA erred when it
failed to rule on the validity of TCT No. 169342; (2)
that the probate proceedings of the estate was
dismissed, not archived; and (3) that the CA erred
when it used Bishop Sofronio's will as basis to
declare that they are not real parties in interest.
In his Comment, the respondent maintained that the
petitioners had no right over the property and moved
to dismiss the present petition.
OUR RULING
At the outset, this Court observes that the parties
and even the lower courts erroneously applied the
provisions of the present Civil Code to the will and
the estate of Bishop Sofronio. The law in force at the
time of the decedent's death determines the
applicable law over the settlement of his
estate.8 Bishop Sofronio died in 1937 before the
enactment of the Civil Code in 1949. Therefore, the
correct applicable laws to the settlement of his
estate are the 1889 Spanish Civil Code and the
1901 Code of Civil Procedure.
In any case, under both the Spanish Code and our
Civil Code, successional rights are vested at the
precise moment of the death of the decedent.
Section 657 of the Spanish code provides:
Art. 657. Los derechos a la sucesion de una persona
se transmiten desde el momento de su muerte.
The inheritance vests immediately upon the
decedent's death without a moment's interruption.
This provision was later on translated and adopted
as Article 777 of our Civil Code. 10
As a consequence of this principle, ownership over
the inheritance passes to the heirs at
the precise moment of death - not at the time the
heirs are declared, nor at the time of the partition,
nor at the distribution of the properties. There is no
interruption between the end of the decedent's
ownership and the start of the heir/legatee/devisee's
ownership.
For intestate heirs, this means that they are
immediately entitled to their hereditary shares in the
estate even though they may not be entitled to any
particular properties yet. For legatees and devisees
granted specific properties, this means that they
acquire ownership over the legacies and devises at
that immediate moment without prejudice to the
legitimes of compulsory heirs.
Undoubtedly, Bishop Sofronio did not die intestate.
He left a will that was probated in 1937. He left half
of his properties to his parents and the remaining
half to his sister Dolores Hacbang Alo. The
admission of his will to probate is conclusive with
respect to its due execution and extrinsic validity. 11
Unfortunately, the settlement proceedings were
never concluded; the case was archived without any
pronouncement as to the intrinsic validity of the will
or an adjudication of the properties. Because of this,
the petitioners posit that intestate succession should
govern. They maintain that the entire inheritance
should have gone to Bishop Sofronio's parents, the
petitioners' ascendants. Thus, they claim to have a
legal interest in the subject lot as representatives of
the other children of Bishop Sofronio's parents.
We do not find the petitioners' argument meritorious.
Our jurisdiction has always respected a decedent's
freedom to dispose of his estate, whether under the
Spanish Civil Code or under the present Civil Code.
Article 763 of the Spanish Code provides:
Art. 763. El que no tuviere herederos forzosos
puede disponer por testamento de todos sus bienes
o de parte de ellos en favor de cualquiera persona
que tenga capacidad para adquirirlos. El que tuviere
herederos forzosos solo podra disponer de sus
bienes en la forma y con las limitaciones que se
establecen en la section quinta de este capitulo.
This provision states that a person without
compulsory heirs may dispose of his estate, either in
part or in its entirety, in favor of anyone capacitated
to succeed him; if the testator has compulsory heirs,
he can dispose of his property provided he does not
impair their legitimes. This provision was later
translated and adopted as Article 842 of our Civil
Code.12
Our jurisdiction accords great respect to the
testator's freedom of disposition. Hence, testate
succession has always been preferred over
intestacy.13 As much as possible, a testator's will is
treated and interpreted in a way that would render all
of its provisions operative.14 Hence, there is no basis
to apply the provisions on intestacy when testate
succession evidently applies.
Even though the CFI archived the settlement
proceedings, there is no indication that it declared
any of the dispositions in the will invalid. The records
are understandably bare considering the probate
proceedings were initiated as early as 1937.
Nonetheless, we find no reason to doubt the intrinsic
validity of the will.

Bishop Sofronio was free to dispose of his estate
without prejudice to the legitimes of his compulsory
heirs. Bishop Sofronio's only compulsory heirs were
his parents.15 Their legitime was one-half of Bishop
Sofronio's estate.16 Considering that Bishop Sofronio
gave his parents half of his estate, then he was free
to dispose of the free portion of his estate in favor of
his sister, Dolores Hacbang Alo.  Thus, his will was
intrinsically valid.
The CFPs failure to adjudicate the specific
properties is irrelevant because Bishop Sofronio did
not just name his heirs; he also identified the specific
properties forming part of their inheritance. The
dispositions in the will rendered court adjudication
and distribution unnecessary.
The petitioners' contention that only a final decree of
distribution of the estate vests title to the land of the
estate in the distributees is also incorrect. Again,
ownership over the inheritance vests upon the heirs,
legatees, and devisees immediately upon the death
of the decedent.
At the precise moment of death, the heirs become
owners of the estate pro-indiviso. They become
absolute owners of their undivided aliquot share but
with respect to the individual properties of the estate,
they become co-owners. This co-ownership remains
until partition and distribution. Until then, the
individual heirs cannot claim any rights over a
specific property from the estate. This is because the
heirs do not know which properties will be
adjudicated to them yet. Hence, there is a need for a
partition before title over particular properties vest in
the distributee-heirs.
However, heirs, legatees, and devisees bequeathed
specific properties do not require Court adjudication
to identify which particular properties become theirs;
the testator had already identified these. From the
very moment of the testator's death, title over these
particular properties vests on the heir, legatee, or
devisee.
On 3 April 1937, title over the subject lot passed on
to the respondent's mother, Dolores Hacbang Alo, at
the exact moment of her brother's death. From that
moment on, she was free to dispose of the subject
lot as a consequence of her ownership.
On the other hand, Bishop Sofronio's parents,
Basilio and Maria Gaborny Hacbang, never acquired
the title over the subject lot. Thus, it never became
part of their estate. Clearly, the petitioners - who
claim to represent the children of Basilio and Maria
Gaborny in the spouses' estate -have no legal right
or interest over the subject lot.
Every ordinary civil action must be based on a cause
of action - an act or omission that violates the rights
of the plaintiff.17 A cause of action requires:
(1) a legal right in favor of the plaintiff;
(2) a correlative duty of the defendant to respect the
plaintiffs right; and
(3) an act or omission of the defendant in violation of
the plaintiffs right.18
Every action must also be prosecuted or defended in
the name of the real party in interest: the party who
stands to be benefited or injured by the
judgment.19 These fundamental requirements are not
merely technical matters; they go into the very
substance of every suit.
The petitioners came to the courts praying for the
annulment of the respondent's title yet they failed to
show that they are entitled to even ask for such
relief. They have no right over the subject lot and the
respondent has no legal obligation to them with
respect to the subject lot. Even if we assume that the
respondent fraudulently or irregularly secured his
certificate of title, the bottom-line is that the
petitioners have no legal standing to sue for the
cancellation of this title. This right only belongs to the
rightful owner of the subject lot.
Judicial power is the duty of the courts to
settle actual controversies involving rights which
are legally demandable and enforceable. 20 Courts
settle real legal disputes involving the rights and
obligations between parties. If either of the parties is
not the real party in interest, the Court cannot grant
the reliefs prayed for because that party has no legal
right or duty with respect to his opponent. Further
litigation becomes an academic exercise in legal
theory that eventually settles nothing - a waste of
time that could have been spent resolving actual
justiciable controversies.
WHEREFORE, premises considered, the petition
is DENIED for lack of merit. Costs against the
petitioners.
SO ORDERED.
EN BANC
[G.R. No. L-23445. June 23, 1966.]
REMEDIOS NUGUID, Petitioner-Appellant, v.
FELIX NUGUID and PAZ SALONGA
NUGUID, Oppositors-Appellees.
Custodio O. Partade for Petitioner-Appellant.
Beltran, Beltran & Beltran for oppositors-
appellees.
SYLLABUS
1. PROBATE OF WILL; COURT’S AREA OF
INQUIRY LIMITED TO EXTRINSIC VALIDITY OF
WILL; WHEN COURT MAY RULE ON INTRINSIC
VALIDITY; CASE AT BAR. — 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 the by law. In the case at bar, however, a
peculiar situation exists. The parties shunted aside
the question of whether or not the will should be
allowed probate. They questioned the intrinsic
validity of the will. Normally, this comes only after the
court has declared that the will has been duly
authenticated. But if the case were to be remanded
for probate of the will, nothing will be gained. In the
event of probate or if the court rejects the will,
probability exists that the case will come up once
again before this Court on the same issue of the
intrinsic validity or nullity of the will. The result would
be waste of time, effort, expense, plus added
anxiety. These practical considerations induce this
Court to meet head-on the issue of the nullity of the
provisions of the will in question, there being a
justiciable controversy awaiting solution.
2. SUCCESSION; PRETERITION; OMISSION OF
NAMES OF FORCED HEIRS. — The deceased left
no descendants, legitimate or illegitimate. But she
left forced heirs in the direct ascending time — her
parents. Her will does not explicitly disinherit them
but simply omits their names altogether. Said will
rather than he labelled ineffective disinheritance is
clearly one in which the said forced heirs suffer from
preterition.
3. ID.; ID.; PRETERITION DISTINGUISHED FROM
DISINHERITANCE. — Preterition "consists in the
omission in the testator’s will of the forced heirs or
anyone of them, either because the are not
mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly
disinherited." (Neri, Et. Al. v. Akutin, at al., 72 Phil.,
p. 325.) Disinheritance; in turn, "is a testamentary
disposition depriving any compulsory heir of heir
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," 1956 ed., Vol. III, p. 8, citing
cases.) Disinheritance is always "voluntary" ;
preterition upon the other hand, is presumed to be
"involuntary." (Sanchez Roman, Estudios de
Derecho Civil, 2nd edition, Volume 20, p. 1131.)
4. ID.; ID.; ID.; EFFECTS FLOWING FROM
PRETERITION AND DISINHERITANCE. — The
effects flowing from preterition are totally different
from those of disinheritance. Preterition under Article
854 of the 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.
6. ID.; ID.; 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
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 he, in addition to such institution, a
testamentary disposition granting him bequests or
legacies apart and separate from the nullified
institution of heir.
7. ID.; ID.; ID.; INSTITUTION OF HEIRS CANNOT
BE CONSIDERED LEGACY. — 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. 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 deceased Rosario Nuguid" and dismissed the
accordingly, then the provisions of Articles 814 and petition without costs.
851 regarding total or partial nullity of the institution,
would be absolutely meaningless and will never A motion to reconsider having been thwarted below,
have any application at all. And the remaining petitioner came to this Court on appeal.
provisions contained in said articles concerning the
reduction of inofficious legacies or betterments 1. Right at the outset, a procedural aspect has
would be a surplusage because they would be engaged our attention. The case is for the probate of
absorbed by Article 817 of the same code. 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
DECISION testatrix’s testamentary capacity, and the
compliance with the requisites or solemnities by law
prescribed, are the questions solely to be
SANCHEZ, J.: represented, 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
Rosario Nuguid, a resident of Quezon City, died on
any devise or legacy therein. 1
December 30, 1962, single, without descendants,
legitimate or illegitimate. Surviving her were her
A peculiar situation is here thrust upon us. The
legitimate parents, Felix Nuguid and Paz Salonga
parties shunted aside the question of whether or not
Nuguid, and 6 brothers and sisters namely: Alfredo,
the will should he allowed probate. For them, the
Federico, Remedios, Conrado, Lourdes and Alberto,
meat of the case is the intrinsic validity of the will.
all surnamed Nuguid.
Normally, this comes only after the court has
declared that the will been duly authenticated. 2 But
On May 18, 1963, petitioner Remedios Nuguid filed
petitioner and oppositors, in the court below and
in the Court of First Instance of Rizal a holographic
here on appeal, travelled on the issue of law, to wit:
will allegedly executed by Rosario Nuguid on
Is the will intrinsically a nullity?
November 17, 1951, some 11 years before her
demise. Petitioner prayed that said will be admitted
We pause to reflect. If the case were to be
to probate and that letters of administration with the
remanded for probate of the will, nothing will be
will annexed be issued to her.
gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record,
On June 25, 1963, Felix Nuguid and Paz Salonga
in the event of probate or if the court rejects the will,
Nuguid, concededly the legitimate father and mother
probability exists that the case will come once again
of the deceased Rosario Nuguid, entered their
before us on the same issue of the intrinsic validity
opposition to the probate of her will. Ground therefor,
or nullity of the will. Result: waste of time, effort,
inter alia, is that by the institution of petitioner
expense, plus added anxiety. These are the practical
Remedios Nuguid as universal heir of the deceased,
considerations that induce us to a belief that we
oppositors — who are compulsory heirs of the
might as well meet head-on the issue of the nullity of
deceased in the direct ascending line — were
the provisions of the will in question. 3 After all, there
illegally preterited and that in consequence the
exists a justiciable controversy crying for solution.
institution is void.
2. Petitioner’s sole assignment of error challenges
On August 29, 1963, before a hearing was had on
the correctness of the conclusion below that the will
the petition for probate and objection thereto,
is a complete nullity. This exacts from us a study of
oppositors moved to dismiss on the ground of
the disputed will and the applicable statute.
absolute preterition.
Reproduced hereunder is the will:
On September 6, 1963, petitioner registered her
opposition to the motion to dismiss.
"Nov. 17, 1951.
The court’s order of November 8, 1963, held that
I, ROSARIO NUGUID, being of sound and disposing
"the will in question is a complete nullity and will
mind and memory, having amassed a certain
perforce create intestacy of the estate of the
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 is 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; 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 — And, the will completely omits both of them: They
"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 betterments 4 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:
"La pretericion consiste en omitir al heredero en el
testamento. O no se le nombra siquiera, o aun
nombrandole como padre, hijo, etc., no se leinstituye
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 aquelloa 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 but 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."
"The word ‘annul’ as used in the 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:34-25). Madden v. Madden, 40 A.2d
611, 614, 136 N.J. Eq. 132."
"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,
S.E. 2d. 771, 774."
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.
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 institución de heredero, dando
caracter absoluto a este ordenamiento," referring to
the mandate of Article 814, now 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 perjudique a la legitima del
desheredado. 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."
The same view is expressed by Sanches Roman: —
"La consequencia 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,
hubiere 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’. . ."
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 Supremo,
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 alguno favorable a lo
persona instituida en el sentido antes expuesto, aun
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
distribuido 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 seo 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 que no outoriza 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 convertir
este juicio en regla de interpretación, desvirtuando y
anulando por este procedimiento lo que el legislador
quiere establecer."
3. We should not be led astray by the statement in
Article 854 that, annulment 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 preterición" ; but added
(in reference to legacies and bequests), "pero
subsistiendo, . . . todas aquellas otras disposiciones
que no se refieren a la institución de heredero . . ."
13 As Manresa puts it, annulment throws open to
intestate succession the entire inheritance including
la porción libre (que) no hubiese dispuesto en virtud
de legado, mejora o donación."
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 preterition 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 privación expresa de la legitima
constituye le desheredación. La privación tacita de
la misma se denomina preterición. 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.
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 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," but 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: "Preteridos,
adquieren el derecho a todo; deshereda dos, solo
les corresponde un tercio o dos tercios, 22 según el
caso."
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
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 a thing
separate and distinct from legacies or betterment.
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,"
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.

This is best answered by a reference to the opinion

of Mr. 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]l never
have 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. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.

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.
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 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 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).
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:
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.
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 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
validity of the provisions of the will in
question. After all there exists a
justiciable controversy crying for
solution.
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
(Cayetano v. Leonides, supra; Nuquid v.
Nuguid, supra. The remedies of certiorari and
prohibition were properly availed of by private
respondents.

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
Nuguid, supra).
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.
v.
SO ORDERED.

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
FIRST DIVISION
[G.R. No. 47799. May 21, 1943.]
Administration of the estate of Agripino Neri y
Chavez. ELEUTERIO NERI ET AL., Petitioners, v.
IGNACIA AKUTIN AND HER
CHILDREN, Respondents.
Ozamis & Capistrano, for Petitioners.
Gullas, Leuterio, Tanner & Laput
for Respondents.
SYLLABUS
1. DESCENT AND DISTRIBUTION; EFFECT OF
PRETERITION. — According to the findings of fact
in this case, 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. Held: That this is a case of
preterition governed by article 814 of the Civil Code,
which provides that the institution of heirs shall be
annulled and intestate succession should be
declared open.
2. ID.; ID.; RESPECTIVE SCOPE OF ARTICLES
814, 817, AND 851 OF THE CIVIL CODE. — The
following example will make the question clearer:
The testator has two legitimate sons, A and B, and in
his will he leaves all his property to A, with total
preterition of B. Upon these facts, shall the court
annul entirely the institution of heir in favor of A and
declare a total intestacy, or shall it merely refuse the
bequest left to A, giving him two-thirds, that is, one-
third of free disposal and one-third of betterments,
plus one-half of the other third as strict legitime, and
awarding B only the remaining one-half of the strict
legitime? If the court does the first, it applies article
814; if the second, it applies articles 851 or 817. But
article 851 applies only in cases of unfounded
disinheritance, and all are agreed that the present
case is not one of disinheritance but of preterition.
Article 817 is merely a general rule inapplicable to
specific cases provided by law, such as that of
preterition or disinheritance.
3. ID.; ID.; ID.; LEGACIES AND BETTERMENTS
SHOULD BE RESPECTED IN SO FAR AS THEY
ARE NOT INOFFICIOUS OR EXCESSIVE. — The
annulment of the institution of heirs in cases of
preterition does not always carry with it the
ineffectiveness of the whole will. Neither Manresa
nor Sanchez Roman nor this court has ever said so.
If, aside from the institution of heirs, there are in the
will provisions leaving to the heirs so instituted or to
other persons some specific properties in the form of
legacies or mejoras, such testamentary provisions
shall be effective and the legacies and mejoras shall
be respected in so far as they are not inofficious or
excessive, according to article 814. In the instant
case, however, no legacies or mejoras are provided
in the will, the whole property of the deceased
having been left by universal title to the children of
the second marriage. The effect, therefore, of
annulling the institution of heirs will be necessarily
the opening of a total intestacy.
4. ID.; ID.; ID.; INSTITUTION OF HEIRS
DISTINGUISHED FROM LEGACIES AND
BETTERMENTS. — 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 articles concerning the
reduction of inofficious legacies or betterments
would be a surplusage because they would be
absorbed by article 817. This, instead of construing,
this court would be destroying integral provisions of
the Civil Code.
5. ID.; ID.; ID.; ID. — 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 betterment. 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. The first is
also different from a betterment which should be
made expressly as such (article 828). The only
instance of implied betterment recognized by law is
where legacies are made which cannot be included
in the free portion (article 828). But again an
institution of heirs cannot be taken as a legacy.
6. ID.; ID.; ID.; ID. — It is clear, therefore, that article
814 refers to two different things which are the two
different objects of its two different provisions. One
of these objects cannot be made to merge in the
other without mutilating the whole article with all its
multifarious connections with a great number of
provisions spread throughout the Civil Code on the
matter of succession. It should be borne in mind,
further, that although article 814 contains two
different provisions, its special purpose is to
establish a specific rule concerning a specific
testamentary provision; namely, the institution of
heirs in a case of preterition. Its other provision
regarding the validity of legacies and betterments if
not inofficious is a mere reiteration of the general
rule contained in other provisions (articles 815 and
817) and signifies merely that it also applies in cases
of preterition.
7. ID.; ID.; ID.; ID.; STATUTORY CONSTRUCTION.
— As regards testamentary dispositions in general,
the general rule is that all "testamentary dispositions
which diminish the legitime of the forced heirs shall
be reduced on petition of the same in so far as they
are inofficious or excessive" (article 817). But this
general rule does not apply to the specific instance
of a testamentary disposition containing an
institution of heirs in a case of preterition, which is
made the main and specific subject of article 814. In
such instance, according to article 814, the
testamentary disposition containing the institution of
heirs should be not only reduced but annulled in its
entirety and all the forced heirs, including the omitted
ones, are entitled to inherit in accordance with the
law of intestate succession. It is thus evident that, if,
in construing article 814, the institution of heirs
therein dealt with is to be treated as legacies or
betterments, the special object of said article would
be destroyed, its specific purpose completely
defeated, and in that wise the special rule therein
established would be rendered nugatory. And this is
contrary to the most elementary rule of statutory
construction. In construing several provisions of a
particular statute, such construction shall be adopted
as will give effect to all, and when general and
particular provisions are inconsistent, the latter shall
prevail over the former. (Act No. 190, secs. 287 and
288.)
8. ID.; ID.; ID.; ID.; ID.; "HEREDERO" UNDER THE
CIVIL CODE AND "HEIR" UNDER THE CODE OF
CIVIL PROCEDURE. — It is maintained that the
word "heredero" under the Civil Code, is not
synonymous with the term "heir" under the Code of
Civil Procedure, and that the "heir" under the latter
Code is no longer personally liable for the debts of
the deceased as was the "heredero" under the Civil
Code, should his acceptance be pure and simple,
and from all these the conclusion is drawn that the
provisions of article 814 of the Civil Code regarding
the total nullity of the institution of heirs has become
obsolete. This conclusion is erroneous. It confuses
form with substance. It must be observed, in this
connection, that in construing and applying a
provision of the Civil Code, such meaning of its
words and phrases as has been intended by the
framers thereof shall be adopted. If thus construed it
is inconsistent with the provisions of the Code of
Civil Procedure, then it shall be deemed repealed;
otherwise it is in force. Repeals by implication are
not favored by the courts and when there are two
acts upon the same subject, effect should be given
to both if possible (Posadas v. National City Bank,
296 U. S., 497).
9. ID.; ID.; ID.; ID.; ID.; ID. — The word "heir" as
used in article 814 of the Civil Code may not have
the meaning that it has under the Code of Civil
Procedure, but this in no wise can prevent a bequest
from being made by universal title as is in substance
the subject matter of article 814 of the Civil Code.
Again, it may also be true that heirs under the Code
of Civil Procedure may receive the bequest only
after payment of debts left by the deceased and not
before as under the Civil Code, but this may have a
bearing only upon the question as to when
succession becomes effective and can in no way
destroy the fact that succession may still be by
universal or special title. Since a bequest may still be
made by universal title and with preterition of forced
heirs, its nullity as provided in article 814 still applies
there being nothing inconsistent with it in the Code
of Civil Procedure. What is important and is the
basis for its nullity is the nature and effect of the
bequest and not its possible name nor the moment
of its effectiveness under the Code of Civil
Procedure.
DECISION
MORAN, J.:
This is a case where the testator in his will left all his
property by universal title to the children by his
second marriage, the herein respondents, with
preterition of the children by his first marriage, the
herein petitioners. This Court annulled the institution
of heirs and declared a total intestacy.
A motion for reconsideration has been filed by the
respondents on the ground (1) that there is no
preterition as to the children of the first marriage who
have received their shares in the property left by the
testator, and (2) that, even assuming that there has
been a preterition, the effect would not be the
annulment of the institution of heirs but simply the
reduction of the bequest made to them.
1. The findings of the trial court and those of the
Court of Appeals are contrary to respondents’ first
contention. The children of the first marriage are
Eleuterio, Agripino, Agapita, Getulia (who died a little
less than eight years before the death of her father
Agripino Neri, leaving seven children), Rosario and
Celerina.
As to Eleuterio, the trial court said that "it is not,
therefore, clear that Eleuterio has received his share
out of the properties left by his father." It is true that
Eleuterio appears to have received, as a donation
from his father, parcel of land No. 4, but the question
of whether there has been a donation or not is
apparently left for decision in an independent action,
and to that effect Ignacia Akutin has been appointed
special administratrix for the purpose of instituting
such action.
With respect to Agripino and Agapita, the parcels of
land which they have occupied, according to the trial
Court, "are a part of public land which had been
occupied by Agripino Neri Chaves, and, therefore,
were not a part of the estate of the latter."
Concerning Getulia who died about eight years
before the death of her father Agripino Neri, the trial
Court found that "neither Getulia nor her heirs
received any share of the properties.”
And with respect to Rosario and Celerina, the trial
Court said that "it does not appear clear, therefore,
that Celerina and Rosario received their shares in
the estate left by their father Agripino Neri
Chaves."cralaw virtua1aw library
This is in connection with the property, real or
personal, left by the deceased. As to money
advances, the trial Court found:
"It is contended, furthermore, that the children of
Agripino Neri Chaves in his first marriage received
money from their father. It appears that Nemesio
Chaves is indebted in the amount of P1,000;
Agripino, in the amount of P500 as appears in
Exhibits 14 and 15; Getulia, in the amount of P155
as appears in Exhibits 16, 17, and 18; Celerina in
the amount of P120 as appears in Exhibits 19, 19-A
and 19-B."
From these findings of the trial Court it is clear that
Agapita, Rosario and the children of Getulia had
received from the testator no property whatsoever,
personal, real or in cash.
But clause 8 of the will is invoked wherein the
testator made the statement that the children by his
first marriage had already received their shares in
his property excluding what he had given them as
aid during their financial troubles and the money
they had borrowed from him which he condoned in
the will. Since, however, this is an issue of fact tried
by the Court of First Instance, and we are reviewing
the decision of the Court of Appeals upon a question
of law regarding that issue, we can rely only upon
the findings of fact made by the latter Court, which
are as follows:
"Since all the parcels that corresponded to Agripino
Neri y Chaves are now in the administrator’s
possession, as appears in the inventory filed in
court, it is clear that the property of the deceased
has remained intact and that no portion thereof has
been given to the children of the first marriage.
x           x          x
"It is stated by the court and practically admitted by
the appellants that a child of the first marriage
named Getulia, or her heirs after her death, did not
receive any share of the property of her father."
It is true that in the decision of the Court of Appeals
there is also the following paragraph:
"As regards that large parcel of land adjoining parcel
No. 1, it is contended that after the court had denied
the registration thereof, Agripino Neri y Chaves
abandoned the said land and that later on some of
the children of the first marriage possessed it,
thereby acquiring title and interest therein by virtue
of occupation and not through inheritance. It is not
true that this parcel containing 182.6373 hectares is
now assessed in the names of some of the children
of the first marriage, for as shown on Tax
Declaration No. 9395, Exhibit 11-g, the owners of
the property are Agapita Neri de Chaves y
Hermanos. Apparently, the said land is still claimed
to be the property not only of the children of the first
marriage but also of those of the second marriage."
This paragraph is but a corroboration of the finding
made by the Court of Appeals that no property has
ever been advanced by the testator to the children
by his first marriage. The large parcel of land
adjoining parcel No. 1 was alleged by the children of
the second marriage to have been advanced by the
testator to the children by his first marriage; but the
Court of Appeals belied this claim. "It is not true,"
says that Court, "that this parcel containing 182.6373
hectares is now assessed in the names of some of
the children of the first marriage, for as shown on
Tax Declaration No. 9395, Exhibit 11-g, the owners
of the property are Agapita Neri de Chaves y
Hermanos," that is, the children of both marriages.
And the Court of Appeals added that "apparently, the
said land is still claimed to be the property not only
of the children of the first marriage but also of those
of the second marriage," which is another way of
stating that the property could not have been
advanced by the testator to the children by the first
marriage, for otherwise the children by the second
marriage would not lay a claim on it.
We conclude, therefore, that according to the
findings of fact made by the Court of Appeals, 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. This is, accordingly, a case of preterition
governed by article 814 of the Civil Code, which
provides that the institution of heirs shall be annulled
and intestate succession should be declared open.
2. Upon the second question propounded in the
motion for reconsideration, respondents seem to
agree that article 814 of the Civil Code is the law
applicable but, in their discussion as to the effect of
preterition, they confuse article 814 with articles 817
and 851 and other articles of the Civil Code. These
three articles read:
"ART. 814. The preterition of one or of all of the
forced heirs in the direct line, whether living at the
execution of the will or born after the death of the
testator, shall annul the institution of heirs; but the
legacies and betterments shall be valid in so far as
they are not inofficious.
"The preterition of the widower or widow does not
annul the institution; but the person, omitted shall
retain all the rights granted to him by articles 834,
835, 836, and 837 of this Code.
"If the forced heirs omitted die before the testator,
the institution shall become operative."
"ART. 817. Testamentary dispositions which
diminish the legitime of the forced heirs shall be
reduced on petition of the same in so far as they are
inofficious or excessive."
"ART. 851. Disinheritance made without a statement
of the cause, or for a cause the truth of which, if
contested, is not shown, or which is not one of those
stated in the four following articles, shall annul the
institution of heirs in so far as it is prejudicial to the
disinherited person; but the legacies, betterments,
and other testamentary dispositions shall be valid in
so far as they are not prejudicial to said legitime."
The following example will make the question
clearer: The testator has two legitimate sons, A and
B, and in his will he leaves all his property to A, with
total preterition of B. Upon these facts, shall we
annul entirely the institution of heir in favor of A and
declare a total intestacy, or shall we merely refuse
the bequest left to A, giving him two-thirds, that is,
one third of free disposal and one-third of
betterments, plus one-half of the other third as strict
legitime, and awarding B only the remaining one-half
of the strict legitime? If we do the first, we apply
article 814; if the second, we apply articles 851 or
817. But article 851 applies only in cases of
unfounded disinheritance, and all are agreed that the
present case is not one of disinheritance but of
preterition. Article 817 is merely a general rule
inapplicable to specific cases provided by law, such
as that of preterition or disinheritance. The meaning
of articles 814 and 851, their difference and
philosophy, and their relation to article 817, are
lucidly explained by Manresa in the following
manner:
"Cuando la legitima no es usufructuaria, como
ocurre en los demas casos, la pretericion no puede
menos de alterar esencialmente la institucion de
heredero. Esta ha de anularse, pero en todo o en
parte, esto es, solo en cuanto perjudique el derecho
del legitimario preterido? El articulo 814 opta por la
primera solucion, ya que hemos de atenernos
estrictamente al texto de la ley; mientras que el
articulo 851, en casos analogos, opta por la
segunda.
"En efecto; la desheredacion sin justa causa no
produce el efecto de desheredar. El heredero
conserva derecho a su legitima, pero nada mas que
a su legitima. Los legados, las mejoras, si las hay, y
aun la institucion de heredero, son validas en cuanto
no perjudiquen al heredero forzoso.
"La diferencia se notara perfectamente con un
ejemplo. Un solteron, sin descendientes ni
ascendientes legitimos, hace testamento
instituyendo por heredero a un pariente lejano.
Despues reconoce un hijo natural, o se casa y tiene
descendencia, y muere sin modificar su disposicion
testamentaria. A su muerte, el hijo natural, o los
legitimos, fundandose en la nulidad total de la
institucion, con arreglo al articulo 814, piden toda la
herencia. En el caso del articulo 851 solo podrian
pedir su legitima. Preteridos, adquieren derecho a
todo; desheredados, solo les corresponde un tercio
o dos tercios, segun el caso.
"En el fondo la cuestion es identica. El testador
puede siempre disponer a su arbitrio de la parte
libre. El legitimario, contra la voluntad expresa del
testador, solo tiene derecho a su legitima. Preterido
o desheredado sin justa causa la legitima es suya.
Desheredado o preterido, la porcion libre no le
corresponde, cuando el testador la asigna a otro.
Logicamente no cabe que el legitimario, en caso de
pretericion, reciba todos los bienes cuando el
testador haya dispuesto de ellos a titulo de herencia,
y no cuando haya dispuesto del tercio libre a titulo
de legado.
"Cual es la razon de esta diferencia? En la
generalidad de los casos puede fundarse el
precepto en la presunta voluntad del testador. Este,
al desheredar, revela que existe alguna razon o
motivo que le impulsa a obrar asi; podra no ser
bastante para privar al heredero de su legitima, pero
siempre ha de estimarse suficiente para privarle del
resto de la herencia, pues sobre esta no puede
pretender ningun derecho el desheredado. El
heredero preterido no ha sido privado expresamente
de nada; el testador, en los casos normales, obra si
por descuido o por error. Hemos visto un testamento
en el que no se instituia heredera a una hija monja,
por creer la testadora que no podia heredar. En
otros casos se ignora la existencia de un
descendiente o de un ascendiente. Cuando el
preterido es una persona que ha nacido despues de
muerto el testador o despues de hecho el
testamento, la razon es aun mas clara; la omision ha
de presumirse involuntaria; el testador debe
suponerse que hubiera instituido heredero a esa
persona si hubiera existido al otorgarse el
testamento, y no solo en cuanto a la legitima, sino
en toda la herencia, caso de no haber otros
herederos forzosos, y en iguales terminos que los
demas herederos no mejorados de un modo
expreso.
"La opinion contraria puede tambien defenderse,
suponiendo que la ley anula el titulo de heredero,
mas no en absoluto la participacion en el caudal;
que asi como al exceptuar la mejora se refiere a
todo el tercio o a la parte de el que haya distribuido
el causante, al exceptuar los legados se refiere a la
parte libre de que haya dispuesto el mismo testador,
considerando como un simple legatario de esa
porcion a la persona a quien el testador designo
como heredero. Abonaria esta solucion el articulo
817, al declarar que las disposiciones
testamentarias que menguan la legitima de los
herederos forzosos han de reducirse en cuanto
fueren inoficiosas, pues amparado en este articulo el
heredero voluntario, puede pretender que la
disposicion a su favor sea respetada en cuanto no
perjudique a las legitimas.
"La jurisprudencia no ha resuelto de frente esta
cuestion, porque no se le ha presentado en los
terminos propuestos; pero ha demostrado su
criterio.
"Hemos citado las Resoluciones de la Direccion de
30 de octubre de 1896 y de 20 de mayo de 1898. En
la primera se decide con valentia, con arreglo al
texto expreso del articulo 814; la institucion de
heredero se anula en absoluto, y se abre para toda
la herencia la sucesion intestada. En la segunda se
rehuye la cuestion, fundandose en circunstancias
secundarias. En el articulo siguiente examinaremos
la sentencia de 16 de enero de 1895.
"La interpretacion que rectamente se desprende del
art. 814, es la de que solo valen, y eso en cuanto no
sean inoficiosas, las disposiciones hechas a titulo de
legado o mejora. 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
perjudique a la legitima del desheredado. 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." (6
Manresa, 3.a ed., pags. 351-353.) (Italics supplied).
The following opinion of Sanchez Roman is to the
same effect and dispels all possible doubt on the
matter:
"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,
hubiere 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 articulo
814, al determinar, como efecto de la pretericion, el
de que ’anulara la institucion de heredero’. Cierto es
que la pretericion esta introducida, como remedio
juridico, por sus efectos, en nombre y para garantia
de la integridad de la legitima de los herederos
forzosos y como consecuencia del precepto del 813,
de que ’el testador no podra privar a los herederos
de su legitima, sino en los casos expresamente
determinados por la ley’, que son los de
desheredacion con justa causa.
"Cierto es, tambien, que en la desheredacion es
muy otro el criterio del Codigo y que su formula
legal, en cuanto a sus efectos, es de alcance mas
limitado, puesto que, conforme al articulo 851, la
desheredacion hecha sin condiciones de validez,
’anulara la institucion de heredero’, lo mismo que la
pretericion, pero solo ’en cuanto perjudique la
desheredado’: es decir, nada mas que en lo que
menoscabe o desconozca sus derechos a la
legitima, y, por tanto en la parte cuota o cantidad
que represente en el caudal hereditario, atendida la
condicion de legitimario del desheredado de modo
ilegal e ineficaz; salvedad o limitacion de los efectos
de nulidad de la institucion hecha en el testamento,
que no existe, segun se ha visto en el 814, por el
que se declara, en forma general e indistinta, que
anulara la institucion de heredero sin ninguna
atenuacion respecto de que perjudique o no, total o
parcialmente, la cuantia de la legitima del heredero
forzoso en linea recta, preterido.
"El resultado de ambos criterios y formulas legales,
manifestamente distintas, tiene que ser muy diverso.
En el caso de la pretericion, propiamente tal o total
— pues si fuera parcial y se la dejara algo al
heredero forzoso por cualquier titulo, aunque ese
algo no fuere suficiente al pago de sus derechos de
legitima, no seria caso de pretericion, regulado por
el articulo 814, sino de complemento, regido por el
815, y la institucion no se anularia sino que se
modificaria o disminuiria en lo necesario para dicho
complemento — o de institucion de heredero en
toda la herencia, al anularse la institucion, por efecto
de la pretericion, se abre la intestada en favor del
preterido o preteridos, respecto de toda la herencia,
tambien; mientras que en el caso de desheredacion
y de institucion en la totalidad de la herencia a favor
de otra persona, solo se anulara en la parte precisa
para no perjudicar la legitima del desheredado, que
aun siendo en este caso la lata, si no hubo mejoras,
porque no se establecieron o porque los instituidos
eran herederos voluntarios, dejaria subsistente la
institucion en la parte correspondiente al tercio de
libre disposicion. Asi es que los preteridos, en el
supuesto indicado, suceden abintestato en todo, en
concurrencia con los demas herederos forzosos o
llamados por la ley al abintestato; los desheredados,
unicamente en dos tercios o en uno tan solo, en la
hipotesis de haberse ordenado mejoras.
"En cambio, ni por la desheredacion ni por la
pretericion pierde su fuerza el testamento, en cuanto
a dicho tercio libre, si se trata de descendientes; o la
mitad, si se trata de ascendientes, ya desheredados,
ya preteridos, porque, ni por el uno ni por el otro
medio, se anula mas que la institucion de heredero,
en general, y totalmente por la pretericion, y solo en
cuanto perjudique a la legitima del desheredado por
la desheredacion; pero subsistiendo, en ambos
casos, todas aquellas otras disposiciones que no se
refieren a la institucion de heredero y se hallen
dentro del limite cuantitativo del tercio o mitad de
libre disposicion, segun que se trate de
descendientes o ascendientes, preteridos o
desheredados.
"La invocacion del articulo 817 para modificar estos
efectos de la pretericion, procurando limitar la
anulacion de la institucion de heredero solo en
cuanto perjudique a la legitima, fundandose en que
dicho articulo establece que ’las disposiciones
testamentarias que menguan la legitima de los
herederos forzosos se reduciran, a peticion de
estos, en lo que fueren inoficiosas o excesivas,’ no
es aceptable ni puede variar aquellos resultados,
porque es un precepto de caracter general en toda
otra clase de disposiciones testamentarias que
produzcan el efecto de menguar la legitima, que no
puede anteponerse, en su aplicacion, a las de indole
especial para señalar los efectos de la pretericion o
de la desheredacion, regulados privativa y
respectivamente por los articulos 814 y 851.
"No obstante la pretericion, ’valdran las mandas y
legados en cuanto no sean inoficiosas.’ El texto es
terminante y no necesita mayor explicacion,
despues de lo dicho, que su propia letra, a no ser
para observar que constituye una confirmacion
indudable de los efectos de la pretericion, en cuanto
alcanzan solo, pero totalmente, a la anulacion de la
institucion de heredero, pero no a la de las mandas
y mejoras en cuanto no sean inoficiosas o
perjudiquen a la legitima de los preteridos;
calificativo de tales, como sinonimo legal de
excesivas, que en otros articulos, como el 817,
establece la ley." (6 Sanchez Roman, Volumen 2.0
pags. 1140-1141.)
These comments should be read with care if we are
to avoid misunderstanding. Manresa, for instance,
starts expounding the meaning of the law with an
illustration. He says that in case of preterition (article
814), the nullity of the institution of heirs is total,
whereas in case of disinheritance (article 851), the
nullity is partial, that is, in so far as the institution
affects the legitime of the disinherited heirs.
"Preteridos, adquieren derecho a todo;
desheredados, solo les corresponde un tercio o dos
tercios, segun el caso." He then proceeds to
comment upon the wisdom of the distinction made
by law, giving two views thereon. He first lays the
view contrary to the distinction made by law, then
the arguments in support of the distinction, and lastly
a possible defense against said arguments. And
after stating that the Spanish jurisprudence has not
as yet decided squarely the question, with an
allusion to two resolutions of the Spanish
Administrative Direction, one in favor of article 814
and another evasive, he concludes that the
construction which may rightly be given to article 814
is that in case of preterition, the institution of heirs is
null in toto whereas in case of disinheritance the
nullity is limited to that portion of the legitime of
which the disinherited heirs have been illegally
deprived. He further makes it clear that in cases of
preterition, the property bequeathed by universal title
to the instituted heirs should not be merely reduced
according to article 817, but instead, intestate
succession should be opened in connection
therewith under article 814, the reason being that
article 814, "como especial en el caso que le motiva,
rige con preferencia al 817." Sanchez Roman is of
the same opinion when he said: "La invocacion del
articulo 817 para modificar estos efectos de la
pretericion, procurando limitar la anulacion de la
institucion de heredero solo en cuanto perjudique a
la legitima, fundandose en que dicho articulo
establece que ’las disposiciones testamentarias que
menguan la legitima de los herederos forzosos se
reduciran, a peticion de estos, en lo que fueren
inoficiosas o excesivas,’ no es aceptable ni puede
variar aquellos resultados, porque es un precepto de
caracter general en toda otra clase de disposiciones
testamentarias que produzcan el efecto de menguar
la legitima, que no puede anteponerse, en su
aplicacion, a las de indole especial para señalar los
efectos de la pretericion o de la desheredacion,
regulados privativa y respectivamente por los
articulos 814 y 851."
Of course, the annulment of the institution of heirs in
cases of preterition does not always carry with it the
ineffectiveness of the whole will. Neither Manresa
nor Sanchez Roman nor this Court has ever said so.
If, aside from the institution of heirs, there are in the
will provisions leaving to the heirs so instituted or to
other persons some specific properties in the form of
legacies or mejoras, such testamentary provisions
shall be effective and the legacies and mejoras shall
be respected in so far as they are not inofficious or
excessive, according to article 814. In the instant
case, however, no legacies or mejoras are provided
in the will, the whole property of the deceased
having been left by universal title to the children of
the second marriage. The effect, therefore, of
annulling the institution of heirs will be necessarily
the opening of a total intestacy.
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 betterment.
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. The first is also different from a
betterment which should be made expressly as such
(article 828). The only instance of implied betterment
recognized by law is where legacies are made which
cannot be included in the free portion (article 828).
But again an institution of heirs cannot be taken as a
legacy.
It is clear, therefore, that article 814 refers to two
different things which are the two different objects of
its two different provisions. One of these objects
cannot be made to merge in the other without
mutilating the whole article with all its multifarious
connections with a great number of provisions
spread throughout the Civil Code on the matter of
succession. It should be borne in mind, further, that
although article 814 contains two different
provisions, its special purpose is to establish a
specific rule concerning a specific testamentary
provision, namely, the institution of heirs in a case of
preterition. Its other provision regarding the validity
of legacies and betterments if not inofficious is a
mere reiteration of the general rule contained in
other provisions (articles 815 and 817) and signifies
merely that it also applies in cases of preterition. As
regards testamentary dispositions in general, the
general rule is that all "testamentary dispositions
which diminish the legitime of the forced heirs shall
be reduced on petition of the same in so far as they
are inofficious or excessive" (article 817). But this
general rule does not apply to the specific instance
of a testamentary disposition containing an
institution of heirs in a case of preterition, which is
made the main and specific subject of article 814. In
such instance, according to article 814, the
testamentary disposition containing the institution of
heirs should be not only reduced but annulled in its
entirety and all the forced heirs, including the omitted
ones, are entitled to inherit in accordance with the
law of intestate succession. It is thus evident that, if,
in construing article 814, the institution of heirs
therein dealt with is to be treated as legacies or
betterments, the special object of said article would
be destroyed, its specific purpose completely
defeated, and in that wise the special rule therein
established would be rendered nugatory. And this is
contrary to the most elementary rule of statutory
construction. In construing several provisions of a
particular statute, such construction shall be adopted
as will give effect to all, and when general and
particular provisions are inconsistent, the latter shall
prevail over the former. (Act No. 190, secs. 287 and
288.)
The question herein propounded has been squarely
decided by the Supreme Court of Spain in a case
wherein a bequest by universal title was made with
preterition of heirs and the theory was advanced that
the instituted heirs should be treated as legatarios.
The Supreme Court of Spain said:
"El articulo 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
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
distribuido 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 que no autoriza a una
interpretacion contraria a sus terminos y a los
principios que informan la testamentificacion, pues
no porque parezca mejor una cosa en el terreno del
Derecho constituyente, hay razon para convertir
este juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador
quiere establecer." (6 Sanchez Roman, Volumen 2.0
p. 1138.)
It is maintained that the word "heredero" under the
Civil Code, is not synonymous with the term "heir"
under the Code of Civil Procedure, and that the
"heir" under the latter Code is no longer personally
liable for the debts of the deceased as was the
"heredero" under the Civil Code, should his
acceptance be pure and simple, and from all these
the conclusion is drawn that the provisions of article
814 of the Civil Code regarding the total nullity of the
institution of heirs has become obsolete. This
conclusion is erroneous. It confuses form with
substance. It must be observed, in this connection,
that in construing and applying a provision of the
Civil Code, such meaning of its words and phrases
as has been intended by the framers thereof shall be
adopted. If thus construed it is inconsistent with the
provisions of the Code of Civil Procedure, then it
shall be deemed repealed; otherwise it is in force.
Repeals by implication are not favored by the courts
and when there are two acts upon the same subject,
effect should be given to both if possible (Posadas v.
National City Bank, 296 U. S., 497). The word "heir"
as used in article 814 of the Civil Code may not have
the meaning that it has under the Code of Civil
Procedure, but this in no wise can prevent a bequest
from being made by universal title as is in substance
the subject-matter of article 814 of the Civil Code.
Again, it may also be true that heirs under the Code
of Civil Procedure may receive the bequest only
after payment of debts left by the deceased and not
before as under the Civil Code, but this may have a
bearing only upon the question as to when
succession becomes effective and can in no way
destroy the fact that succession may still be by
universal or special title. Since a bequest may still be
made by universal title and with preterition of forced
heirs, its nullity as provided in article 814 still applies
there being nothing inconsistent with it in the Code
of Civil Procedure. What is important and is the
basis for its nullity is the nature and effect of the
bequest and not its possible name nor the moment
of its effectiveness under the Code of Civil
Procedure.
Furthermore, there were in the Code of Civil
Procedure sections Nos. 755 and 756 which read:
"SEC. 755. Share of child born after making will. —
When a child of a testator is born after the making of
a will, and no provision is therein made for him, such
child shall have the same share in the estate of the
testator as if he had died intestate; and the share of
such child shall be assigned to him as in cases of
intestate estates, unless it is apparent from the will
that it was the intention of the testator that no
provision should be made for such child."
"SEC. 756. Share of child or issue of child omitted
from will. — When a testator omits to provide in his
will for any of his children, or for issue of a deceased
child, and it appears that such omission was made
by mistake, or accident, such child, or the issue of
such child, shall have the same share in the estate
of the testator as if he had died intestate, to be
assigned to him as in the case of intestate
estates."cralaw virtua1aw library
It is these provisions of the Code of Civil Procedure
that have affected substantially articles 814 and 851
of the Civil Code, but they have been expressly
repealed by Act No. 2141, section 1 of which reads
as follows:
"Sections seven hundred and fifty-five, seven
hundred and fifty- six, seven hundred and fifty-
seven, seven hundred and fifty-eight, and seven
hundred and sixty of Act Numbered One hundred
and ninety, entitled ’An Act providing a Code of
Procedure in Civil Actions and Special Proceedings
in the Philippine Islands are hereby repealed and
such provisions of the Civil Code as may have been
amended or repealed by said sections are hereby
restored to full force and effect." (Italics ours.)
Among the provisions of the Civil Code which are
thus expressly restored to full force are undoubtedly
articles 814 and 851. There can be no possible
doubt, therefore, that those two articles are in force.
Article 1080 of the Civil Code that is also invoked
deserves no consideration except for the
observation that it has no relevancy in the instant
case.
Our attention is directed to the case of Escuin v.
Escuin (11 Phil., 332). We have never lost sight of
the ruling laid down in that case which has been
reiterated in Eleazar v. Eleazar (37 Off. Gaz., p.
1782). In the Escuin case, the deceased left all his
property to his natural father (not a forced heir) and
his wife with total preterition of an acknowledged
natural child; and, in the Eleazar case the deceased
left all his property to a friend with total preterition of
his father and wife. Without reconsidering the
correctness of the ruling laid down in these two
cases, we will note that the doctrine stands on facts
which are different from the facts in the present
case. There is certainly a difference between a case
of preterition in which the whole property is left to a
mere friend and a case of preterition in which the
whole property is left to one or some forced heirs. If
the testamentary disposition be annulled totally in
the first case, the effect would be a total deprivation
of the friend of his share in the inheritance. And this
is contrary to the manifest intention of the testator. It
may fairly be presumed that, under such
circumstances, the testator would at least give his
friend the portion of free disposal. In the second
case, the total nullity of the testamentary disposition
would have the effect, not of depriving totally the
instituted heir of his share in the inheritance, but of
placing him and the other forced heirs upon the
basis of equality. This is also in consonance with the
presumptive intention of the testator. Preterition,
generally speaking, is due merely to mistake or
inadvertence without which the testator may be
presumed to treat alike all his children.
And specially is this true in the instant case where
the testator omitted the children by his first marriage
upon the erroneous belief that he had given them
already more shares in his property than those given
to the children by his second marriage. It was,
therefore, the thought of the testator that the children
by his first marriage should not receive less than the
children by his second marriage, and to that effect is
the decision of this Court sought to be reconsidered.
Motion for reconsideration is hereby denied.
SECOND DIVISION
G.R. No. 198994, February 03, 2016
IRIS MORALES, Petitioners, v. ANA MARIA
OLONDRIZ, ALFONSO JUAN OLONDRIZ, JR.,
ALEJANDRO MORENO OLONDRIZ, ISABEL
ROSA OLONDRIZ AND FRANCISCO JAVIER
MARIA OLONDRIZ, Respondent.
DECISION
BRION, J.:
This is a petition for review on certiorari filed by Iris
Morales from the May 27, 2011 decision and
October 12, 2011 resolution of the Court of Appeals
(CA) in CA-G.R. SP No. 102358.1 The CA denied
Morales' petition for certiorari from the Regional Trial
Court's (RTC) July 12, 2007 and October 30, 2007
orders in SP. Proc. No. 03-0060 and SP. Proc. No.
03-0069.2chanroblesvirtuallawlibrary
Antecedents
Alfonso Juan P. Olondriz, Sr. (the decedent) died on
June 9, 2003. He was survived by his widow, Ana
Maria Ortigas de Olondriz, and his children: Alfonso
Juan O. Olondriz, Jr., Alejandro Marino O. Olondriz,
Isabel Rosa O. Olondriz, Angelo Jose O. Olondriz,
and Francisco Javier Maria Bautista Olondriz. His
widow and children are collectively referred to as the
respondent heirs.
Believing that the decedent died intestate, the
respondent heirs filed a petition with the Las Piñas
RTC for the partition of the decedent's estate and
the appointment of a special administrator on July 4,
2003. The case was raffled to Branch 254 and
docketed as Sp. Proc. Case No. SP-03-0060.
On July 11, 2003, the RTC appointed Alfonso Juan
O. Olondriz, Jr. as special administrator.
However, on July 28, 2003, Iris Morales filed a
separate petition with the RTC alleging that the
decedent left a will dated July 23, 1991. Morales
prayed for the probate of the will and for hex
appointment as special administratrix. Her petition
was also raffled to Branch 254 and docketed as Sp.
Proc. Case No. SP-03-0069.
The pertinent portions of the decedent's will reads:
1. Upon my death, IRIS MORALES
OLONDRIZ shall be the executor hereof and
administrator of my estate until its distribution in
accordance herewith, x x x
2. My entire estate shall be divided into six (6)
parts to be distributed equally among and between
(1) IRIS MORALES OLONDRIZ, my children (2)
ALFONSO JUAN OLONDRIZ, JR., (3) ALEJANDRO
OLONDRIZ, (4) ISABEL OLONDRIZ, (5) ANGELO
OLONDRIZ, and their mother (6) MARIA ORTEGAS
OLONDRIZ, SR.
Notably, the will omitted Francisco Javier Maria
Bautista Olondriz, an illegitimate son of the
decedent.
On September 1, 2003, Morales filed a manifestation
in Sp. Proc. Case No. SP-03-0060 and moved to
suspend the intestate proceedings in order to give
way to the probate proceedings in Sp. Proc. Case
No. SP-03-0069. The respondent heirs opposed
Morales' motion for suspension and her petition for
allowance of the will.
On November 27, 2003, the RTC consolidated Sp.
Proc. Case No. SP-03-0060 with Sp. Proc. Case
No. SP-03-0069.
On January 6, 2004, the respondent heirs moved to
dismiss the probate proceedings because Francisco
was preterited from the will.
On January 10, 2006, Morales agreed to the holding
of an evidentiary hearing to resolve the issue of
preterition. Thus, the RTC ordered the parties to
submit their factual allegations to support or negate
the existence of preterition. Only the respondent
heirs complied with this order.
After several postponements at the instance of
Morales, the reception of evidence for the
evidentiary hearing was scheduled on May 29, 2006.
However, Morales failed to appear, effectively
waiving her right to present evidence on the issue of
preterition.
On June 23, 2006, the RTC, through Judge Gloria
Butay Aglugub, suspended the intestate proceedings
in Sp. Proc. Case No. SP-03-0060 and set the case
for probate. The RTC reasoned that probate
proceedings take precedence over intestate
proceedings.
The respondent heirs moved for reconsideration of
the suspension order but the RTC denied the motion
on September 1, 2006. The RTC also summarily
revoked the Letters of Administration previously
issued to Alfonso Jr.
The respondent heirs moved for reconsideration of
the summary revocation of the Letters of
Administration. They also moved for the inhibition of
Judge Aglugub of Branch 254.
On November 16, 2006, the RTC granted the motion
for inhibition. The case was transferred to Branch
253 presided by Judge Salvador V. Timbang, Jr.
On July 12, 2007, the RTC resolved (1) the
respondent heirs' motion for reconsideration of the
revocation of the Letters of Administration and (2)
Morales' motion to be appointed Special
Administratrix of the estate. The RTC noted that
while testacy is preferred over intestacy, courts will
not hesitate to set aside probate proceedings if it
appears that the probate of the will might become an
idle ceremony because the will is intrinsically void.
The RTC observed: (1) that Morales expressly
admitted that Francisco Javier Maria Bautista
Olondriz is an heir of the decedent; (2) that
Francisco was clearly omitted from the will; and (3)
that based on the evidentiary hearings, Francisco
was clearly preterited. Thus, the RTC reinstated
Alfonso Jr. as administrator of the estate and
ordered the case to proceed in intestacy.
Morales moved for reconsideration which the RTC
denied on October 30, 2007, for lack of merit.
On February 7, 2008, Morales filed a petition
for certiorari against the orders of the RTC. Morales
alleged that the RTC acted with grave abuse of
discretion in proceeding intestate despite the
existence of the will. The petition was docketed
as CA-G.R. SP No. 102358.
On May 27, 2011, the CA dismissed Morales'
petition for certiorari. The CA reasoned that while
probate proceedings take precedence over intestate
proceedings, the preterition of a compulsory heir in
the direct line annuls the institution of heirs in the will
and opens the entire inheritance into intestate
succession.4 Thus, the continuation of the probate
proceedings would be superfluous and impractical
because the inheritance will be adjudicated intestate.
The CA concluded that the RTC did not act with
grave abuse of discretion.
Morales moved for reconsideration which the CA
denied on October 12, 2011. Hence, she filed the
present petition for review on certiorari on December
5, 2011.
The Petition
Morales maintains that the RTC committed grave
abuse of discretion when it ordered the case to
proceed intestate because: (1) the probate of a
decedent's will is mandatory; (2) the RTC Branch
254 already ordered the case to proceed into
probate; (3) the order setting the case for probate
already attained finality; (3) the probate court cannot
touch on the intrinsic validity of the will; and (4) there
was no preterition because Francisco received a
house and lot inter vivos as an advance on his
legitime.
The respondent heirs counter: (1) that it is within the
RTC's jurisdiction to reverse or modify an
interlocutory order setting the case for probate; (2)
that the petitioner failed to mention that she did not
appear in any of the evidentiary hearings to disprove
their allegation of preterition; (3) that the RTC and
the CA both found that Francisco was preterited
from the will; and (4) that Francisco's preterition
annulled the institution of heirs and opened the case
into intestacy. They conclude that the RTC did not
exceed its jurisdiction or act with grave abuse of
discretion when it reinstated Alfonso Jr. as the
administrator of the estate and ordered the case to
proceed intestate.
Our Ruling
We join the ruling of the CA.
Preterition consists in the omission of a compulsory
heir from the will, either because he is not named or,
although he is named as a father, son, etc., he is
neither instituted as an heir nor assigned any part of
the estate without expressly being disinherited -
tacitly depriving the heir of his legitime. 5 Preterition
requires that the omission is total, meaning the heir
did not also receive any legacies, devises, or
advances on his legitime.6
In other words, preterition is the complete and total
omission of a compulsory heir from the testator's
inheritance without the heir's express disinheritance.
Article 854 of the Civil Code states the legal effects
of preterition:
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.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation, (emphasis
supplied)
Under the Civil Code, the preterition of a compulsory
heir in the direct line shall annul the institution of
heirs, but the devises and legacies shall remain valid
insofar as the legitimes are not impaired.
Consequently, if a will does not institute any
devisees or legatees, the preterition of a compulsory
heir in the direct line will result in total intestacy. 7
In the present case, the decedent's will evidently
omitted Francisco Olondriz as an heir, legatee, or
devisee. As the decedent's illegitimate son,
Francisco is a compulsory heir in the direct line.
Unless Morales could show otherwise, Francisco's
omission from the will leads to the conclusion of his
preterition.
During the proceedings in the RTC, Morales had the
opportunity to present evidence that Francisco
received donations inter vivos and advances on his
legitime from the decedent. However, Morales did
not appear during the hearing dates, effectively
waiving her right to present evidence on the issue.
We cannot fault the RTC for reaching the reasonable
conclusion that there was preterition.
We will not entertain the petitioner's factual
allegation that Francisco was not preterited because
this Court is not a trier of facts. Furthermore, the CA
concurred with the RTC's conclusion. We see no
cogent reason to deviate from the factual findings of
the lower courts.
The remaining question is whether it was proper for
the RTC to (1) pass upon the intrinsic validity of the
will during probate proceedings and (2) order the
case to proceed intestate because of preterition.
The general rule is that in probate proceedings, the
scope of the court's inquiry is limited to questions on
the extrinsic validity of the will; the probate court will
only determine the will's formal validity and due
execution.8 However, this rule is not inflexible and
absolute.9 It is not beyond the probate court's
jurisdiction to pass upon the intrinsic validity of the
will when so warranted by exceptional
circumstances.10 When practical considerations
demand that the intrinsic validity of the will be
passed upon even before it is probated, the probate
court should meet the issue.11
The decedent's will does not contain specific
legacies or devices and Francisco's preterition
annulled the institution of heirs. The annulment
effectively caused the total abrogation of the will,
resulting in total intestacy of the inheritance. 12 The
decedent's will, no matter how valid it may appear
extrinsically, is null and void. The conduct of
separate proceedings to determine the intrinsic
validity of its testamentary provisions would be
superfluous. Thus, we cannot attribute error - much
less grave abuse of discretion - on the RTC for
ordering the case to proceed intestate.
Finally, there is no merit in the petitioner's argument
that the previous order setting the case for probate
barred the RTC from ordering the case to proceed
intestate. The disputed order is merely interlocutory
and can never become final and executory in the
same manner that a final judgment does. 13 An
interlocutory order does not result in res judicata.14 It
remains under the control of the court and can be
modified or rescinded at any time before final
judgment.15
Certiorari is a limited form of review confined to
errors of jurisdiction. An error of jurisdiction is one
where the officer or tribunal acted without or in
excess of its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction.16 As discussed, it is well within the
jurisdiction of the probate court to pass upon the
intrinsic validity of the will if probate proceedings
might become an idle ceremony due to the nullity of
the will.
On the other hand, grave abuse of discretion is the
capricious and whimsical exercise of judgment
equivalent to an evasion of positive duty, or a virtual
refusal to act at all in contemplation of the law. 17 It is
present when power is exercised in a despotic
manner by reason, for instance, of passion and
hostility. Morales failed to show that the RTC acted
in such a capricious and despotic manner that would
have warranted the CA's grant of her petition
for certiorari. On the contrary, the RTC acted
appropriately in accordance with the law and
jurisprudence.
WHEREFORE, the petition is DISMISSED. Costs
against the petitioner.
SO ORDERED.