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as follows: "The Petition in Intervention for Partition filed by the above-named oppositors [RubenAustria, et al.,] dated November 5, 1959 is hereby granted."

In the meantime, the contending sides debated the matter of authenticity or lack of it of the severaladoption 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 thepetitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from aConstabulary questioned-document examiner whose views undermine the authenticity of the saiddocuments. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoptionpapers to the Philippine Constabulary for further study. The petitioners likewise located formerpersonnel of the court which appeared to have granted the questioned adoption, and obtainedwritten 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 petitionersRuben Austria, let al., moved the lower court to set for hearing the matter of the genuineness of theadoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the courtfor hearing arrived, however, the respondent Benita Cruz-Meez who entered an appearanceseparately from that of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking thelower 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 subsequentlysubmitted 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 ofin 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 forreconsideration.

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 werenot included in the decedent's testamentary dispositions.

The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estateof the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Bentaand Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearestsurviving blood relatives of the decedent. On the other side are the respondents brothers andsisters, Perfecto Cruz, Benita Cruz-Meez, 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 byvirtue of legal adoption. At the heart of the controversy is Basilia's last will immaculate in itsextrinsic 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 therespondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lowercourt had, however, assumed, by its orders in question, that the validity or invalidity of the adoptionis not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption inquestion were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as


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The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basiliawas deceived into believing that she was legally bound to bequeath one-half of her entire estate tothe respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that hadthe deceased known the adoption to be spurious, she would not have instituted the respondents atall the basis of the institution being solely her belief that they were compulsory heirs. Prooftherefore 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 therights of the parties in barring the petitioners nephews and niece from registering their claim even toproperties adjudicated by the decedent in her will?

Before the institution of heirs may be annulled under article 850 of the Civil Code, the followingrequisites 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 thetestator 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 theinstitution 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 itknown in her will. Surely if she was aware that succession to the legitime takes place by operation oflaw, independent of her own wishes, she would not have found it convenient to name her supposedcompulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very wellindicate her complete agreement with that statutory scheme. But even this, like the petitioners' ownproposition, 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 orunequivocal manner the cause for such institution of heirs. We cannot annul the same on the basisof guesswork or uncertain implications.

And even if we should accept the petitioners' theory that the decedent instituted the respondentsPerfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the falseassumption 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 causethe testator may have written in his will for the institution of heirs. Such institution may be annulledonly when one is satisfied, after an examination of the will, that the testator clearly would not havemade the institution if he had known the cause for it to be false. Now, would the late Basilia havecaused the revocation of the institution of heirs if she had known that she was mistaken in treatingthese 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 vagueand uncertain. The phrases, "mga sapilitang tagapagmana"and "sapilitang mana,"were borrowedfrom the language of the law on succession and were used, respectively, to describe the class ofheirs 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 notbound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libredisposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and thechildren of the respondent Benita Cruz, shows a perceptible inclination on her part to give to therespondents more than what she thought the law enjoined her to give to them. Compare this with therelatively small devise of land which the decedent had left for her blood relatives, including thepetitioners 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


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and the other nephews and nieces would succeed to the bulk of the testate by intestacy a resultwhich would subvert the clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in theCivil Code: "The words of a will are to receive an interpretation which will give to every expressionsome 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."1

Testacy is favored and doubts are resolved on its side, especially where the will evinces an intentionon the part of the testator to dispose of practically his whole estate,2as was done in this case.Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testatorallowed to prevail, that we could even vary the language of the will for the purpose of giving it effect.3Aprobate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed oftestamentary 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.4

At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in aseparate action brought for that purpose, and cannot be the subject of a collateral attack.5

To the petitioners' charge that the lower court had no power to reverse its order of December 22,1959, suffice it to state that, as borne by the records, the subsequent orders complained of servedmerely to clarify the first an act which the court could legally do. Every court has the inherentpower to amend and control its processes and orders so as to make them conformable to law and

justices.6That the court a quohas limited the extent of the petitioners' intervention is also within itspowers as articulated by the Rules of Court. 7

ACCORDINGLY, the present petition is denied, at petitioners cost.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo andVillamor, JJ., concur.


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

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

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

The defendant contends that the Project of Partition from which Salud acquired the fishpond in

question is void ab initio and Salud Barretto did not acquire any valid title thereto, and that the courtdid not acquire any jurisdiction of the person of the defendant, who was then a minor.'

Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project ofpartition submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil CaseNo. 49629 of the Court of First Instance of Manila) to be null and void ab initio (not merely voidable)because the distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was not adaughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity of the project of partitionwas decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force) providing asfollows: .

A partition in which a person was believed to be an heir, without being so, has beenincluded, shall be null and void.

The court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto wasfree to dispose of one-third (1/3) of his estate under the old Civil Code, his will was valid in favor ofSalud Barretto (nee Lim Boco) to the extent, at least, of such free part. And it concluded that, asdefendant Milagros was the only true heir of Bibiano Barretto, she was entitled to recover fromSalud, and from the latter's children and successors, all the Properties received by her fromBibiano's estate, in view of the provisions of Article 1456 of the new Civil Code of the Philippinesestablishing that property acquired by fraud or mistake is held by its acquirer in implied trust for thereal owner. Hence, as stated at the beginning of this opinion, the Court a quo not only dismissed theplaintiffs' complaint but ordered them to return the properties received under the project of partitionpreviously mentioned as prayed for in defendant Milagros Barretto's counterclaim. However, itdenied defendant's prayer for damages. Hence, this appeal interposed by both plaintiffs and

defendant.

Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied tothe present case by the court below. The reason is obvious: Salud Barretto admittedly had beeninstituted heir in the late Bibiano Barretto's last will and testament together with defendant Milagros;hence, the partition had between them could not be one such had with a party who was believed tobe an heir without really being one, and was not null and void under said article. The legal precept(Article 1081) does not speak of children, or descendants, but ofheirs(without distinction betweenforced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the


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testator does not preclude her being one of the heirs expressly named in his testament; for BibianoBarretto was at liberty to assign the free portion of his estate to whomsoever he chose. While theshare () assigned to Salud impinged on the legitime of Milagros, Salud did not for that reasoncease to be a testamentary heir of Bibiano Barretto.

Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime

invalidate the institution of Salud as heir, since there was here nopreterition, or total ommission of aforced heir. For this reason,Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable,that case involving an instance of preterition or omission of children of the testator's former marriage.

Appellee contends that the partition in question was void as a compromise on the civil status ofSalud in violation of Article 1814 of the old Civil Code. This view is erroneous, since a compromisepresupposes the settlement of a controversy through mutual concessions of the parties (Civil Codeof 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and the condition of Salud asdaughter of the testator Bibiano Barretto, while untrue, was at no time disputed during the settlementof the estate of the testator. There can be no compromise over issues not in dispute. And while acompromise over civil status is prohibited, the law nowhere forbids a settlement by the parties overthe share that should correspond to a claimant to the estate.

At any rate, independently of a project of partition which, as its own name implies, is merely aproposal for distribution of the estate, that the court may accept or reject, it is the court alone thatmakes the distribution of the estate and determines the persons entitled thereto and the parts towhich each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of1940; Rule 91, Revised Rules of Court), and it is that judicial decree of distribution, once final, thatvests title in the distributees. If the decree was erroneous or not in conformity with law or thetestament, the same should have been corrected by opportune appeal; but once it had become final,its binding effect is like that of any other judgment in rem, unless properly set aside for lack of

jurisdiction or fraud.

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

It is, however, argued for the appellee that since the court's distribution of the estate of the lateBibiano Barretto was predicated on the project of partition executed by Salud Barretto and thewidow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto), andsince no evidence was taken of the filiation of the heirs, nor were any findings of fact or law made,the decree of distribution can have no greater validity than that of the basic partition, and must standor fall with it, being in the nature of a judgment by consent, based on a compromise. Saminiada vs.Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority for the propositionthat a judgment by compromise may be set aside on the ground of mistake or fraud, upon petitionfiled in due time, where petition for "relief was filed before the compromise agreement a proceeding,was consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partitionwas not only ratified by the court's decree of distribution, but actually consummated, so much so that

the titles in the name of the deceased were cancelled, and new certificates issued in favor of theheirs, long before the decree was attacked. Hence, Saminiada vs. Mata does not apply.

Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole basisfor the decree of distribution was the project of partition. But, in fact, even without it, the distributioncould stand, since it was in conformity with the probated will of Bibiano Barretto, against theprovisions whereof no objection had been made. In fact it was the court's duty to do so. Act 190,section 640, in force in 1939, provided: .


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SEC. 640. Estate, How Administered. When a will is thus allowed, the court shall grantletters testamentary, or letters of administration with the will annexed, and such letterstestamentary or of administration, shall extend to all the estate of the testator in thePhilippine Islands. Such estate, after the payment of just debts and expenses ofadministration, shall be disposed of according to such will, so far as such will may operateupon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates

in these Islands belonging to persons who are inhabitants of another state or country.(Emphasis supplied)

That defendant Milagros Barretto was a minor at the time the probate court distributed the estate ofher father in 1939 does not imply that the said court was without jurisdiction to enter the decree ofdistribution. Passing upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp.741 and 742:

If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still theywould be concluded by the result of the proceedings, not only as to their civil status but asthe distribution of the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil.938, "The proceeding for probate is one in rem (40 Cyc., 1265) and the court acquires

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

The only instance that we can think of in which a party interested in a probate proceedingmay have a final liquidation set aside is when he is left out by reason of circumstancesbeyond his control or through mistake or inadvertence not imputable to negligence. Eventhen, the better practice to secure relief is reopening of the same case by proper motionwithin the reglementary period, instead of an independent action the effect of which, ifsuccessful, would be, as in the instant case, for another court or judge to throw out a

decision or order already final and executed and reshuffle properties long ago distributed anddisposed of.

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

... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, andthat Maria Gerardo was not her judicially appointed guardian. The claim is not true. MariaGerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The merestatement in the project of partion that the guardianship proceedings of the minor LuciaMilagros Barretto are pending in the court, does not mean that the guardian had not yet beenappointed; it meant that the guardianship proceedings had not yet been terminated, and as a

guardianship proceedings begin with the appointment of a guardian, Maria Gerardo musthave been already appointed when she signed the project of partition. There is, therefore, noirregularity or defect or error in the project of partition, apparent on the record of the testateproceedings, which shows that Maria Gerardo had no power or authority to sign the projectof partition as guardian of the minor Lucia Milagros Barretto, and, consequently, no groundfor the contention that the order approving the project of partition is absolutely null and voidand may be attacked collaterally in these proceedings.


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So that it is now incontestable that appellee Milagros Barretto was not only made a party bypublication but actually appeared and participated in the proceedings through her guardian: she,therefore, can not escape the jurisdiction of the Manila Court of First Instance which settled herfather's estate.

Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have

ignored that the distributee Salud was not her child, the act of said widow in agreeing to the oft-citedpartition and distribution was a fraud on appellees rights and entitles her to relief. In the first place,there is no evidence that when the estate of Bibiano Barretto was judicially settled and distributedappellants' predecessor, Salud Lim Boco Barretto to, knew that she was not Bibiano's child: so that iffraud was committed, it was the widow, Maria Gerardo, who was solely responsible, and neitherSalud nor her minor children, appellants herein, can be held liable therefor. In the secondplacegranting that there was such fraud, relief therefrom can only be obtained within 4 years from itsdiscovery, and the record shows that this period had elapsed long ago.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), shebecame of age five years later, in 1944. On that year, her cause of action accrued to contest on theground of fraud the court decree distributing her father's estate and the four-year period of limitationstarted to run, to expire in 1948 (Section 43, Act. 190). In fact, conceding that Milagros only becameaware of the true facts in 1946 (Appellee's Brief, p. 27), her action still became extinct in 1950.Clearly, therefore, the action was already barred when in August 31, 1956 she filed her counterclaimin this case contesting the decree of distribution of Bibiano Barretto's estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant TirsoReyes had induced her to delay filing action by verbally promising to reconvey the propertiesreceived by his deceased wife, Salud. There is no reliable evidence of the alleged promise, whichrests exclusively on the oral assertions of Milagros herself and her counsel. In fact, the trial courtmade no mention of such promise in the decision under appeal. Even more: granting arguendo thatthe promise was made, the same can not bind the wards, the minor children of Salud, who are thereal parties in interest. An abdicative waiver of rights by a guardian, being an act of disposition, andnot of administration, can not bind his wards, being null and void as to them unless duly authorized

by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedingsfor the settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance ofManila in 1939, in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition anddecree of distribution is barred by the statute of limitations; and (3) that her claim that plaintiff-appellant guardian is a possessor in bad faith and should account for the fruits received from theproperties inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that theplaintiffs' action for partition of the fishpond described in the complaint should have been given duecourse.

Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed andset aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu theproperties enumeracted in said decision, and the same is affirmed in so far as it denies any right ofsaid appellee to accounting. Let the records be returned to the court of origin, with instructions toproceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No.T-13734 of the Office of the Register of Deeds of Bulacan, and for the accounting of the fruitsthereof, as prayed for in the complaint No costs.


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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased.ADOLFO C. AZNAR,executor and appellee,vs.MARIA LUCY CHRISTENSEN DUNCAN,oppositor and appellant.MARIA HELEN CHRISTENSEN,oppositor and appellee.

J. Salonga and L. M. Abellera for oppositor and appellee.Carlos Dominguez, Jr. for executor-appellee.M. R. Sotelo for appellant.

MAKALINTAL, J .:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a willexecuted on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davaoin its decision of February 28, 1954. In that same decision the court declared that Maria HelenChristensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased.The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958(G.R. No. L-11484).

In another incident relative to the partition of the deceased's estate, the trial court approved theproject submitted by the executor in accordance with the provisions of the will, which said courtfound to be valid under the law of California. Helen Garcia appealed from the order of approval, and

this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisionsof the will should be governed by Philippine law, and returned the case to the lower court withinstructions that the partition be made as provided by said law (G.R. No. L-16749).

On October 29, 1964, the Court of First Instance of Davao issued an order approving the project ofpartition submitted by the executor, dated June 30, 1964, wherein the properties of the estate weredivided equally between Maria Lucy Christensen Duncan (named in the will as Maria LucyChristensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator hadexpressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judiciallydeclared as such after his death. The said order was based on the proposition that since HelenGarcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hencethe properties passed to both of them as if the deceased had died intestate, saving only the legaciesleft in favor of certain other persons, which legacies have been duly approved by the lower court and

distributed to the legatees.

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

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


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

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

x x x x x x x x x

7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married toEduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she wasbaptized Christensen, is not in any way related to me, nor has she been at any time adoptedby me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines,the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency,the same to be deposited in trust for the said Maria Helen Christensen with the DavaoBranch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos(P100.00), Philippine Currency per month until the principal thereof as well as any interestwhich may have accrued thereon, is exhausted.

x x x x x x x x x

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIALUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,remainder, and residue of my property and estate, real, personal and/or mixed, ofwhatsoever kind or character, and wheresoever situated, of which I may be possessed at mydeath and which may have come to me from any source whatsoever, during her lifetime;Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytimeprior to her decease having living issue, then and in that event, the life interest herein givenshall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, thesaid MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property

with the same force and effect as if I had originally so given, devised and bequeathed it toher; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY diewithout living issue, then, and in that event, I give, devise and bequeath all the rest,remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIELOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California,U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C.CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., andJoseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and sharealike, the share of any of the three above named who may predecease me, to go in equalparts to the descendants of the deceased; and, provided further, that should my sister Mrs.Carol Louise C. Borton die before my own decease, then, and in that event, the share of myestate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de

Trevio, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A.,and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who maydie before my own decease, share and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, acompulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to

Article 854 of the Civil Code, which provides:


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ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in thedirect line, whether living at the time of the execution of the will or born after the death of thetestator, shall annul the institution of heir; but the devises and legacies shall be valid insofaras they are not inofficious.

On the other hand, appellant contends that this is not a case of preterition, but is governed by Article

906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by any titleless than the legitime belonging to him may demand that the same be fully satisfied." Appellant alsosuggests that considering the provisions of the will whereby the testator expressly denied hisrelationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount ofher legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads:

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

Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to herlegitime, and not to a share of the estate equal that of Lucy Duncan as if the succession wereintestate.

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

Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta dememoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra

plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bieneshereditarios, porcion que no alcanza a completar la legitima, pero que influeyepoderosamente en el animo del legislador para decidirle a adoptar una solucion biendiferente de la sealada para el caso de pretericion.

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

... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo deherencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienesmenos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja algo al

heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en eltestamento nada se deja el legitimario, hay verdadera pretericion . (6 Manresa, 7th Ed., 1951,p. 437.)

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

La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero sepresume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en


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su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido,prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de susdisposiciones testamentarias, o noinstituyendole en parte alguna de la herencia,ni por titulode heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas omenos bienes. Si le dejara algunos,por pocos que sean e insuficientes para cubrir sulegitima, ya no seria caso depretericion, sino de complementode aquella. El primer

supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de lainstitucion de heredero; y el segundo, o de complemento de legitima por el 815 y solooriginal la accion adsuplementum, para completar la legitima. (Sanchez Roman, Tomo VI,Vol. 2, p. 1131.)

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

Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la omisionsea completa; que el heredero forzoso nada reciba en el testamento.1wph1.t

x x x x x x x x x

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

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella porcompleto. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, esmenguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. Aeste caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y lasconsecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815.(6 Manresa p. 418.)

Again Sanchez Roman:

QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no consigna de modo expresoesta circunstancia de que la pretericion o falta de mencion e institucion o disposiciontestamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer

distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo deun modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien eltestador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podriapedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la

pretericion,que anula la institucion, sino simplemente los del suplemento necesario paracubrir su legitima. (Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.)

The question may be posed: In order that the right of a forced heir may be limited only to thecompletion of his legitime (instead of the annulment of the institution of heirs) is it necessary that


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what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity asheir, that is, atitulo de heredero? In other words, should he be recognized or referred to in the will asheir? This question is pertinent because in the will of the deceased Edward E. Christensen HelenGarcia is not mentioned as an heir indeed her status as such is denied but is given a legacy ofP3,600.00.

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

Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows:

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo en estamateria en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racionalmodificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se ledejaba por titulode tal el completo de su legitima, la accion para invalidar la institucionhecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella deinoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no fuera elde heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando erainstituido heredero en parte o cantidad inferior a lo que le correspondiera porlegitima, eracuando bastaba el ejercicio de la accion ad suplementum para completarla,sin necesidadde anular las otras instituciones de heredero o demas disposiciones contenidas en eltestamento.

El Articulo 851 se apartade este criterio estricto y se ajusta a la unica necesidad que leinspira cual es la de que se completela legitima del heredero forzoso, a quienpor cualquiertitulose haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho depedir el complementode la misma sin necesidad de que se anulen las disposicionestestamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuyainterpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendocondicion precisa que lo que se hubiere dejado de menosde la legitima al heredero forzoso,lo haya sido en el testamento, o sea por disposicion del testador, segun lo revela el texto del

articulo, "el heredero forzoso a quien el testadorhaya dejado,etc., esto es por titulo delegado o donacion mortis causaen el testamento y, no fuera de al. (Sanchez Roman, TomoVI, Vol. 2.0 p. 937.)

Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895,May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to onewho was a forced heir a legacy worth less than the legitime, but without referring to the legatee asan heir or even as a relative, and willed the rest of the estate to other persons. It was held that

Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, butonly that the legitime be completed. (6 Manresa, pp. 438, 441.)

The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the

present case as may be gathered very clearly from the provisions of his will. He refused toacknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00.The fact that she was subsequently declared judicially to possess such status is no reason toassume that had the judicial declaration come during his lifetime his subjective attitude towards herwould have undergone any change and that he would have willed his estate equally to her and toLucy Duncan, who alone was expressly recognized by him.

The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support oftheir theory of preterition. That decision is not here applicable, because it referred to a will where


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"the testator left all his property by universal title to the children by his second marriage, and (that)without expressly disinheriting the children by his first marriage, he left nothing to them or, at least,some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia,but left her a legacy of P3,600.00.

The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the

Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estatedescended to Helen Garcia as her legitime. Since she became the owner of her share as of themoment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a correspondingportion of all the fruits or increments thereof subsequently accruing. These include the stockdividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertainto her according to the terms of the will cannot be sustained, for it would in effect impair the right ofownership of Helen Garcia with respect to her legitime.

One point deserves to be here mentioned, although no reference to it has been made in the brief foroppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan inthe event she should die without living issue. This substitution results in effect from the fact thatunder paragraph 12 of the will she is entitled only to the income from said estate, unless prior to herdecease she should have living issue, in which event she would inherit in full ownership; otherwisethe property will go to the other relatives of the testator named in the will. Without deciding this,point, since it is not one of the issues raised before us, we might call attention to the limitationsimposed by law upon this kind of substitution, particularly that which says that it can never burdenthe legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concernedin fee simple.

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

Code. Costs against appellees in this instance.

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

R E S O L U T I O N

July 30, 1967

MAKALINTAL, J .:

Oppositor-appellant has filed an ex-partepetition dated July 11, 1966, making reference to an

alleged oversight and asking for the corresponding correction, in the last paragraph before thedispositive part of our decision, which reads as follows:

One point deserves to be here mentioned, although no reference to it has been made in the brief foroppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncanin the event she should die without living issue. This substitution results in effect from the fact thatunder paragraph 12 of the will she is entitled only to the income from said estate, unless prior to herdecease she should have living issue, in which event she would inherit in full ownership; otherwisethe property will go to the other relatives of the testator named in the will. Without deciding this


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point, since it is not one of the issues raised before us, we might call attention to the limitationsimposed by law upon this kind of substitution, particularly that which says that it can never burdenthe legitime (Art. 864, Civil Code), which means that the legitime must descend to the heirconcerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis ours).

Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in

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

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

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


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Manila

EN BANC

G.R. No. L-47799 June 13, 1941

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners,vs.IGNACIA AKUTIN AND HER CHILDREN,respondents.

Ozamiz & Capistrano for petitioners.Gullas, Leuterio, Tanner & Laput for respondents.

MORAN, J.:

Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children

named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage withIgnacia Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia,daughter in the first marriage, died on October 2, 1923, that is, a little less than eight years beforethe death of said Agripino Neri y Chavez, and was survived by seven children named Remedios,Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament, which wasadmitted to probate on March 21, 1932, he willed that his children by the first marriage shall have nolonger any participation in his estate, as they had already received their corresponding shares duringhis lifetime. At the hearing for the declaration of heirs, the trial court found, contrary to what thetestator had declared in his will, that all his children by the first and second marriages intestate heirsof the deceased without prejudice to one-half of the improvements introduced in the propertiesduring the existence of the last conjugal partnership, which should belong to Ignacia Akutin. TheCourt of Appeals affirmed the trial court's decision with the modification that the will was "valid withrespect to the two-thirds part which the testator could freely dispose of. "This judgment of the Courtof Appeals is now sought to be reviewed in this petition for certiorari.

The decisive question here raised is whether, upon the foregoing facts, the omission of the childrenof the first marriage annuls the institution of the children of the first marriage as sole heirs of thetestator, or whether the will may be held valid, at least with respect to one-third of the estate whichthe testator may dispose of as legacy and to the other one-third which he may bequeath asbetterment, to said children of the second marriage.

The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part asfollows:

Disinheritance made without a statement of the cause, or for a cause the truth of which, if

contradicted, is not proven, ... shall annul the institution of the heir in so far as it prejudicesthe person disinherited; but the legacies, betterments, and other testamentary dispositions,in so far as they do no encroach upon the legitime, shall be valid.

The appellate court thus seemed to have rested its judgment upon the impression that the testatorhad intended to disinherit, though ineffectively, the children of the first marriage. There is nothing inthe will that supports this conclusion. True, the testator expressly denied them any share in hisestate; but the denial was predicated, not upon the desire to disinherit, but upon the belief, mistakenthough it was, that the children by the first marriage had already received more than their


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corresponding shares in his lifetime in the form of advancement. Such belief conclusively negativesall inference as to any intention to disinherit, unless his statement to that effect is prove to bedeliberately fictitious, a fact not found by the Court of Appeals. The situation contemplated in theabove provision is one in which the purpose to disinherit is clear, but upon a cause not stated or notproved, a situation which does not obtain in the instant case.

The Court of Appeals quotes Manresa thus:

En el terreno de los principios, la solucion mas justa del problema que hemos hecho notar alcomentar el articulo, seria distinguir el caso en que el heredero omitido viviese al otorgarseel testamento, siendo conocida su existencia por el testador, de aquel en que, o naciesedespues, o se ignorase su existencia, aplicando en el primer caso la doctrina del articulo851, y en el segundo la del 814. (6 Manresa, 354-355.)

But it must be observed that this opinion is founded on mere principles (en el terreno de losprincipios) and not on the express provisions of the law. Manresa himself admits that according tolaw, "no existe hoy cuestion alguna en esta materia: la pretericion produce siempre los mismosefectos, ya se refiera a personas vivas al hacer el testamento o nacidas despues. Este ultimo grupo

solo puede hacer relacion a los descendientes legitimos, siempre que ademas tengan derecho alegitima." (6 Manresa, 381.)

Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of thechildren by the first marriage, and of involuntary preterition of the children by the deceased Getulia,also of the first marriage, and is thus governed by the provisions of article 814 of the Civil Code,which read in part as follows:

The preterition of one or all of the forced heirs in the direct line, whether living at the time ofthe execution of the will or born after the death of the testator, shall void the institution ofheir; but the legacies and betterments shall be valid, in so far as they are not inofficious.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them, eitherbecause they are not mentioned therein, or, though mentioned, they are neither instituted as heirsnor are expressly disinherited.(Cf. 6 Manresa, 346.) In the instant case, while the children of the firstmarriage were mentioned in the will, they were not accorded any share in the heriditary property,without expressly being disinherited. It is, therefore, a clear case of preterition as contended byappellants. The omission of the forced heirs or anyone of them, whether voluntary or involuntary, is apreterition if the purpose to disinherit is not expressly made or is not at least manifest.

Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious"(art. 814 of the Civil Code), preterition avoids the institution of heirs and gives rise to intestatesuccession. (Art. 814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 andFebruary 27, 1909.) In the instant case, no such legacies or betterments have been made by thetestator. "Mejoras" or betterments must be expressly provided, according to articles 825 and 828 of

the Civil Code, and where no express provision therefor is made in the will, the law would presumethat the testator had no intention to that effect. (Cf. 6 Manresa, 479.) In the will here in question, noexpress betterment is made in favor of the children by the second marriage; neither is there anylegacy expressly made in their behalf consisting of the third available for free disposal. The wholeinheritance is accorded the heirs by the second marriage upon the mistaken belief that the heirs bythe first marriage have already received their shares. Were it not for this mistake, the testator'sintention, as may be clearly inferred from his will, would have been to divide his property equallyamong all his children.


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Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without prejudice tothe widow's legal usufruct, with costs against respondents.

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


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Manila

EN BANC

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

REMEDIOS NUGUID,petitioner and appellant,vs.FELIX NUGUID and PAZ SALONGA NUGUID,oppositors and appellees.

Custodio O. Partade for petitioner and appellant.Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without

descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid andPaz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,Conrado, Lourdes and Alberto, all surnamed Nuguid.

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

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father andmother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Groundtherefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the

deceased, oppositors who are compulsory heirs of the deceased in the direct ascending line were illegally preterited and that in consequence the institution is void.

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

On September 6, 1963, petitioner registered her opposition to the motion to dismiss. 1wph1.t

The court's order of November 8, 1963, held that "the will in question is a complete nullity and willperforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petitionwithout costs.

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

1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate ofa will. The court's area of inquiry is limited to an examination of, and resolution on,the extrinsicvalidity of the will. The due execution thereof, the testatrix's testamentary capacity, andthe compliance with the requisites or solemnities by law prescribed, are the questions solelyto bepresented, and to be acted upon, by the court. Said court at this stage of the proceedings is notcalled upon to rule on the intrinsicvalidity or efficacy of the provisions of the will, the legality of anydevise or legacy therein.1


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A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or notthe will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will.Normally, this comes only after the court has declared that the will has been duly authenticated. 2Butpetitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit:Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained.On the contrary, this litigation will be protracted. And for aught that appears in the record, in theevent of probate or if the court rejects the will, probability exists that the case will come up onceagain 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 beliefthat we might as well meet head-on the issue of the validity of the provisions of the will inquestion.3After all, there exists a justiciable controversy crying for solution.

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

Reproduced hereunder is the will:

Nov. 17, 1951

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

(Sgd.) Illegible

T/ ROSARIO NUGUID

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

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in thedirect line, whether living at the time of the execution of the will or born after the death of thetestator, shall annul the institution of heir; but the devises and legacies shall be valid insofaras they are not inofficious. ...

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

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at thetime 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 termpreteritionemployed in the law becomes a necessity.On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera oaun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda


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Really, as we analyze the word annulemployed in the statute, there is no escaping the conclusionthat the universal institution of petitioner to the entire inheritance results in totally abrogatingthe will.Because, the nullification of such institution of universal heir without any other testamentarydisposition in the will amounts to a declaration that nothing at all was written. Carefully wordedand in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansivemeaning will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the

"Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion expressesthe rule of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion deheredero, no consiente interpretacion alguna favorable a la persona instituida en el sentidoantes 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 nose ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, yconsiguientemente, en un testamento donde falte la institucion, es obligado llamar a losherederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando eltestador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada estaconsecuencia legal cuanto que, en materia de testamentos, sabido es, segun tienedeclarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad dequien testa si esta voluntad no aparece en la forma y en las condiciones que la ley haexigido 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 fueseanulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues auncuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacioncontraria a sus terminos y a los principios que informan la testamentifaccion, pues no porqueparezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste

juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo que ellegislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "thedevises 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 854suggests that the mereinstitution of a universal heir in a will void because of preterition wouldgive 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 andseparate from the nullified institution of heir. Sanchez Roman, speaking of the two component partsof Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por lapretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellasotras disposiciones que no se refieren a la institucion de heredero ... . 13As Manresa puts it,annulment throws open to intestate succession the entire inheritance including "la porcion libre (que)no hubiese dispuesto en virtud de legado, mejora o donacion. 14

As aforesaid, there is noother provisionin the will before us except the institution of petitioner asuniversal 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 ofpreterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the caseat bar". This argument fails to appreciate the distinction between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, eitherbecause they are not mentioned therein, or, though mentioned, they are neither instituted as heirsnor are expressly disinherited." 16Disinheritance, in turn, "is a testamentarydisposition depriving any


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compulsory heir of his share in the legitimefor a cause authorized by law. " 17In Manresa's ownwords: "La privacion expresa de la legitima constituye la desheredacion.La privacion tacita de lamisma se denominapretericion." 18Sanchez Roman emphasizes the distinction by stating thatdisinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be"involuntaria". 19Express as disinheritance should be, the same must be supported by a legal causespecified in the will itself. 20

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

On top of this is the fact that the effects flowing from preterition are totally different from those ofdisinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institutionof heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositionsin the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code,such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice theperson disinherited", which last phrase was omittedin the case of preterition. 21Better stated yet, indisinheritance the nullity is limitedto that portion of the estate of which the disinherited heirs havebeen illegally deprived. Manresa's expressive language, in commenting on the rights of thepreterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runsthus: "Preteridos,adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dostercios, 22el caso.23

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

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Nericaseheretofore 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 legadoand mejoraand, accordingly, it must not beentirely annulled but merely reduced. This theory, if adopted, will result in a completeabrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs maybe made to fall into the concept of legacies and betterments reducing the bequestaccordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of theinstitution, would. be absolutely meaningless and will never have any application at all. Andthe remaining provisions contained in said article concerning the reduction of inofficiouslegacies or betterments would be a surplusage because they would be absorbed by Article817. Thus, instead of construing, we would be destroying integral provisions of the CivilCode.

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 thiscase, it must be observed that the institution of heirs is therein dealt with as a thing separateand distinct from legacies or betterments. And they are separate and distinct not onlybecause they are distinctly and separately treated in said article but because they are inthemselves different. Institution of heirs is a bequest by universal title of property that isundetermined. Legacy refers to specific property bequeathed by a particular or special title.... But again an institution of heirs cannot be taken as a legacy. 25


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

Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed.

No costs allowed. So ordered.

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


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Manila

FIRST DIVISION

G.R. No. L-41971 November 29, 1983

ZONIA ANA T. SOLANO, petitioner,vs.THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S. GARCIA, respondents.

Benjamin H. Aquino for petitioner.

Alfredo Kallos for respondents.

MELENCIO HERRERA, J .:+. wph!1

A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming thejudgment rendered by the former Court of First Instance of Albay, Branch II, in Civil Case No. 3956,an action for Recognition.

On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be illegitimatechildren of Dr. Meliton SOLANO, filed an action for recognition against him. In his Answer, SOLANOdenied paternity. On February 3, 1970, during the pendency of the suit, SOLANO died. PetitionerZONIA Ana Solano was ordered substituted for the DECEDENT as the only surviving heir mentionedin his Last Will and Testament probated on March 10, 1969, or prior to his death, in SpecialProceedings No. 842 of the same Court. ZONIA entered her formal appearance as a "substitute

defendant" on March 4, 1970 claiming additionally that she was the sole heir of her father, SOLANO,and asking that she be allowed to assume her duties as executrix of the probated Will with the leastinterference from the GARCIAS who were "mere pretenders to be illegitimate children of SOLANO".

On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental Causeof Action" impugning the recognition of ZONIA as an acknowledged natural child with the prayer thatshe be declared instead, like them, as an adulterous child of the DECEDENT. ZONIA did not file anyresponsive pleading and the case proceeded to trial. The GARCIAS further moved for theimpleading of the SOLANO estate in addition to ZONIA, which was opposed by the latter, but whichthe Trial Court granted in its Order dated April 15, 1970. 1

In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the parties'

respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the correct status ofZONIA, and 3) the hereditary share of each of them in view of the probated Will. 2

On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered judgment thedispositive portion of which decrees: t.hqw

WHEREFORE, judgment is hereby rendered declaring the plaintiffs Bienvenido S.Garcia and Emeteria S. Garcia and the defendant Sonia Ana Tuagnon as theillegitimate children of the late Dr. Meliton Solano under the class of ADULTEROUS


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CHILDREN, with all the rights granted them by law. The institution of Sonia AnaSolano as sole and universal heir of the said deceased in the will is hereby declarednull and void and the three (3) children shall share equally the estate or one- third(1/3) each, without prejudice to the legacy given to Trinidad Tuagnon and the right ofany creditors of the estate. No pronouncement as to costs.

Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CA-G.R. No.49018).

ZONIA seeks a reversal of that affirmance in this petition, which was given due course.

At the outset, we should state that we are bound by the findings of fact of both the Trial Court andthe Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact, illegitimatechildren of the DECEDENT. The oral testimony and the documentary evidence of record inevitablypoint to that conclusion, as may be gleaned from the following background facts: SOLANO, aresident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he met a Frenchwoman, Lilly Gorand, who became his second wife in 1928. The union was short-lived as she lefthim in 1929. In the early part of 1930, SOLANO started having amorous relations with Juana Garcia,

out of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and onNovember 3, 1935, Emeteria Garcia was born (Exhibits "B " & "2"). Their birth certificates andbaptismal certificates mention only the mother's name without the father's name. The facts establish,however, that SOLANO during his lifetime recognized the GARCIAS as his children by acts ofsupport and provisions for their education.

In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this relationbut only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her Birth Certificate, herstatus was listed as "illegitimate"; her mother as Trinidad Tuagnon; her father as "P.N.C. " (Exhibit"V"), or "padre no conocido".

During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on November 29,1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and Trinidad Tuagnon executed

an "Escritura de Reconocimiento de Unit Hija Natural" (Exhibit "Q"; "7"), acknowledging ZONIA as a"natural child" and giving her the right to use the name ZONIA Ana Solano y Tuagnon. Thedocument was registered with the Local Civil Registrar on the same date.

On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit "11"),instituting ZONIA as his universal heir to all his personal and real properties in Camalig, Tabaco andMalinao, all in the province of Albay, except for five parcels of land in Bantayan, Tabaco, Albay,which were given to Trinidad Tuagnon in usufruct Upon SOLANO's petition (Exhibit "10"), the Willwas duly probated on March 10, 1969 in Special Proceedings No. 842 of the Court of First Instanceof Albay, Branch II, in a Decision also rendered by Judge Ezequiel S. Grageda (Exhibit "12").

As above stated, these facts are not in question.

Petitioner maintains, however, that: t.hqw

I

The Court of Appeals, as well as the trial Court, acted without jurisdiction or inexcess of jurisdiction in declaring substitute defendant Zonia Ana Solano, nowpetitioner, an illegitimate child of the late Dr. Meliton Solano in an action where


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private respondents, as plaintiffs in the Court below, sought recognition as naturalchildren of Dr. Meliton Solano.

II

The Court of Appeals, as well as the trial Court, acted without jurisdiction or in

excess of jurisdiction in ordering the division of the estate of Dr. Meliton Solanobetween the petitioner and private respondents, when said estate is under the

jurisdiction and control of the probate Court in Special Proceedings No. 842.

III

The Court of Appeals, as well as the trial Court, acted without jurisdiction or inexcess of jurisdiction in declaring nun and void the institution of heir in the last willand testament of Dr. Meliton Solano, which was duly probated in special proceedingsNo. 842 of the Court of First Instance of Albay, and in concluding that total intestacyresulted there from. 3

Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to declareZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the same actiondespite the pendency of Special Proceedings No. 842; and 3) to declare null and void the institutionof heir in the Last Win and Testament of SOLANO, which was duly probated in the same SpecialProceedings No. 842, and concluding that total intestacy resulted.

It is true that the action below was basically one for recognition. However, upon notice of SOLANO'sdeath, the Trial Court ordered his substitution by ZONIA, "the only surviving heir ... as of as ofnow" 4In her "Appearance of Substitute Defendant Zonia Ana T. Solano ... Sole and Universal Heir",ZONIA specifically prayed that she be 6 allowed to assume her duties as executrix and administratrix ofthe probated will and testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, whichis already final and executory, with least interference from the plaintiffs (GARCIAS) who may be classifiedfor the moment as only pretenders to be illegitimate children". In other words, ZONIA did not only rely

upon SOLANO's Answer already of record but asserted new rights in her capacity as sole and universalheir, "executrix and administratrix, "and challenged the right of the GARCIAS to recognition. Thus, shewas not defending the case as a mere representative of the deceased but asserted rights and defenses inher own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA ... andSupplemental Cause of Action ... "vigorously denying that ZONIA was SOLANO's sole and universal heir;that ZONIA could not legally be considered as SOLANO's acknowledged natural child because of a legalimpediment; that the admission to probate of SOLANO's Will was merely conclusive as to its dueexecution; that the supposed recognition under a notarial instrument of ZONIA as an acknowledgednatural child was fraudulent and a product of misrepresentation; that ZONIA's recognition in the Will as anacknowledged natural child is subject to nullification and that at most ZONIA is, like them, an adulterouschild of SOLANO with Trinidad Tuagnon.

During the trial, the GARCIAS presented evidence to prove their allegations not only in their main

complaint but also in their "Reply to Appearance and Supplemental Cause of Action". ZONIApresented no objection to the presentation by the GARCIAS of their oral and documentary evidenceand even cross-examined their witnesses. ZONIA, for her part, presented her own testimonial anddocumentary evidence, denied the relationship of the GARCIAS' to SOLANO and presented thenotarial recognition in her favor as an acknowledged natural child by SOLANO and TrinidadTuagnon (Exhibit "Q"). Thus, as raised by the parties in their own pleadings and pursuant to theirrespective evidence during the trial, the litigation was converted into a contest between theGARCIAS and ZONIA precisely as to their correct status as heirs and their respective rights as such.


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As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated in theWill is valid and should be respected.

The case of Nuguid vs. Nuguid, et al., 14reiterating the ruling in Neri, et al. vs. Akutin, et al., 15whichheld that where the institution of a universal heir is null and void due to pretention, the Will is a completenullity and intestate succession ensues, is not applicable herein because in the Nuguid case, only a one-

sentence Will was involved with no other provision except the institution of the sole and universal heir;there was no specification of individual property; there were no specific legacies or bequests. It was uponthat factual setting that this Court declared: t.hqw

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 ofpetitioner as universal heir, and nothing more, the result is the same. The entire willis null." (at p. 459)

In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the CivilCode, supra, applies merely annulling the "institution of heir".

Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court wasnever questioned before either Court. ZONIA herself had gone, without objection, to trial on theissues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of jurisdiction ofthe Trial Court as an error before the Appellate Court. She should now be held estopped torepudiate that jurisdiction to which she had voluntarily submitted, after she had received anunfavorable judgment, The leading case of Tijam vs. Sibonghanoy, 16on this point, declared: t.hqw

A party cannot invoke the jurisdiction of a court to secure affirmative relief against hisopponent and after failing to obtain such relief, repudiate or question the same

jurisdiction. The question whether the court has jurisdiction either of the subjectmatter of the action or of the parties is not because the judgment or order of the courtis valid and conclusive as an adjudication but for the reason that such practice

cannot be tolerated obviously for reasons of public policy. After voluntarily submittinga cause and encountering an adverse decision on the merits, it is too late for theloser to question the jurisdiction or power of the court.

WHEREFORE, the judgment under review is hereby modified in that the hereditary share in theestate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 + (1/3 of 1/2)or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and Emeteria S.Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of Trinidad Tuagnonshall be respected. The judgment is affirmed in all other respects. No costs.

SO ORDERED.1wph1.t

Plana, Relova and Gutierrez, Jr., JJ., concur.

Separate Opinions


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TEEHANKEE, J., concurring:

The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement ofestate of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance

of the will during his lifetime under Article 838 of the Civil Code. Such allowance was granted andthis terminated the proceeding, although as noted in the Court's opinion, the parties continued to filesome pleadings therein after Dr. Solano's death. But the issues between the parties as to their statusand hereditary shares in view of the probated will naming petitioner as sole heir were expresslydelineated, tried and determined in the action for recognition (Civil Case No. 3956) filed byrespondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant(and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases(assuming that the probate proceeding could be deemed as having continued notwithstanding itstermination with the allowance in vitam of Dr. Solano's will) which were pending before the same

judge and the same branch of the trial court could be correctly said to have been. consolidated.Finally, petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly the

jurisdiction of the trial and appellate courts to which she had submitted without question her cause.

Separate Opinions

TEEHANKEE, J., concurring:

The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement ofestate of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowanceof the will during his lifetime under Article 838 of the Civil Code. Such allowance was granted and

this terminated the proceeding, although as noted in the Court's opinion, the parties continued to filesome pleadings therein after Dr. Solano's death. But the issues between the parties as to their statusand hereditary shares in view of the probated will naming petitioner as sole heir were expresslydelineated, tried and determined in the action for recognition (Civil Case No. 3956) filed byrespondents Garcias against their father Dr. Solano who was substituted by pe

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