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[G.R. No. 8927. March 10, 1914. ]

ASUNCION NABLE JOSE ET AL., Plaintiffs-Appellants, v. MARIA IGNACIA USON ET AT

SYLLABUS

1. WILLS; INTERPRETATION; SUCCESSION OF SISTERS AND NIECES.The following clauses

appeared in a will. It was held that the living sisters and the children of the deceased sisters take per capita and

in equal parts.

The question involved in this appeal arises from the interpretation of the first and second clauses of a codicil to

the will of Filomena Uson. They read as follows:jg

"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

husbands 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 Doa 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."cralaw virtua1aw library

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 appellants 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 herdeceased 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

husbands death she desires that "my sisters and nieces, as hereinafter named, shall succeed him as heirs."cralaw

virtua1aw library

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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 thetestatrix. 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 testatrixs 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.

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[G.R. No. L-17818. January 20, 1967.]

TIRSO T. REYES, as guardian of the minors, Azucena, Flordelis and Tirso, Jr. v. LUCILA MILAGROS

BARRETTO DATU

SYLLABUS

1. CIVIL LAW; ARTICLE 1081 OF THE CIVIL CODE OF 1889 (then in force) CONSTRUED.Article

1081 of the Civil Code of 1889 (then in force) provided that "a partition in which a person was believed to be an

heir without being so, has been included, shall be null and void." Based on this Article, the lower court declaredthe project of partition submitted in the proceedings for the settlement of the estate of B.B. to be null and void

ab initio because the distributee, S.B., was not a daughter of the decedent. HELD: Article 1081 of the old Civil

Code has been misapplied to the present case by the lower court. S.B. had been instituted heir in the late

decedents last will and testament together with M.B., decedents daughter; hence, the partition had between

them could not be one such had with a party who was believed to be an heir without really being one, and was

not null and void under said article. The legal precept (Article 1081) does not speak of children, or descendants,

but of heirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud happened

not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his

testament, for B.B. was at a liberty to assign the free portion of his estate to whomsoever he chose.

2. ID.; LEGITIME; ALLOTMENT OF SMALLER SHARE THAN LEGITIME DOES NOT INVALIDATE

INSTITUTION OF HEIR.While the share (1/2) assigned to S.B. impinged on the legitime of M.B., S. B. did

not for that reason cease to be a testamentary heir of B.B. Nor does the fact that M.B. was allotted in her

fathers will a share smaller than her legitime invalidate the institution of S.B. as heir, since there was here no

preterition, or total omission of a forced heir.

3. ID.; COMPROMISE ON CIVIL STATUS PRESUPPOSES SETTLEMENT OF CONTROVERSY

THROUGH MUTUAL CONCESSION OF PARTIES.Appellee contends that the partition in question was

void as a compromise on the civil status of S.B. This view is erroneous, since a compromise presupposes the

settlement of a controversy through mutual concessions of the parties, and the condition of S.B. as daughter of

the testator, while untrue, was at no time disputed during the settlement of the estate of the testator. There can

be no compromise over issues not in dispute. And while a compromise over civil status is prohibited, the law

nowhere forbids a settlement by the parties over the share that should correspond to a claimant to the estate.

4. ID.; PARTITION; JUDICIAL DECREE OF DISTRIBUTION; ITS EFFECT.Independently of a project

of partition which is merely a proposal for distribution of the estate, that the court may accept or reject, it is the

court alone that makes the distribution of the estate and determines the persons entitled thereto and the parts to

which each is entitled; and it is that judicial decree of distribution, once final, that vests title in the distributees.

If the decree was erroneous or not in conformity with law or the testament, the same should have been corrected

by opportune appeal; but once it had become final, its binding effect is like that of any other judgment in rem,

unless properly set aside for lack of jurisdiction or fraud. Where a court has validly issued a decree ofdistribution of the estate, and the same has become final, the validity or invalidity of the project of partition

becomes irrelevant.

5. ID.; ID.Even without the (questioned) project of partition the distribution could stand since it was in

conformity with the probated will of the deceased, against the provisions whereof no objection had been made.

6. ID.; JUDICIAL DECREE OF DISTRIBUTION; MINORITY OF HEIR DOES NOT IMPLY THAT COURT

WAS WITHOUT JURISDICTION TO ENTER DECREE OF DISTRIBUTION.That M. B. was a minor at

the time the probate court distributed the estate of her father in 1939 does not imply that the said court was

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without jurisdiction to enter the decree of distribution.

7. ID.; ID.; PROBATE PROCEEDING; NATURE OF.The proceeding for probate is one in rem and the

court acquires jurisdiction over all persons interested, through the publication of the notice and any order that

may be entered therein is binding against all of them. A final order of distribution of the estate of a deceased

person vests the title to the land of the estate in the distributees.

8. ID.; ID.; ID.; GROUNDS FOR SETTING ASIDE.The only instance in which a party interested in aprobate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances

beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better

practice to secure relief is reopening of the same case by proper motion within the reglamentary period, instead

of an independent action the effect of which, if successful, would be for another court or judge to throw out a

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

9. ID.; STATUTE OF LIMITATIONS; SUIT BASED ON FRAUD SHOULD BE BROUGHT WITHIN 4

YEARS FROM ITS DISCOVERY.Granting that there was fraud, relief therefrom can only be obtained

within 4 years from its discovery, and the record shows that this period had elapsed long ago.

10. ID.; GUARDIAN; WAIVER OF RIGHTS BY GUARDIAN DOES NOT BIND HIS WARDS.An

abdicative waiver of rights by a guardian, being an act of disposition and not of administration, cannot bind his

wards, being null and void as to them unless duly authorized by the proper court.

Direct appeal from a judgment of the Court of First instance of Bulacan, in its Civil Case No. 1084, dismissing

the complaint of appellant Tirso T. Reyes and ordering the same to deliver to the defendant-appellee, Lucia

Milagros Barretto Datu, the properties received by his deceased wife under the terms of the will of the late

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

The decision appealed from sets the antecedents of the case to be as follows:jgc:chanrobles.com.ph

"This is an action to recover one-half share in the fishpond, located in the barrio of San Roque, Hagonoy,

Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land Records of this Province, being the

share of plaintiffs wards as minor heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes,

guardian of said minors.

It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a vast estate,

consisting of real properties in Manila, Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos.

41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.

When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of these properties ina will to Salud Barretto, mother of plaintiffs wards, and Lucia Milagros Barretto and a small portion as legacies

to his two sisters Rosa Barretto and Felisa Barretto and his nephew and nieces. The usufruct of the fishpond

situated in barrio San Roque, Hagonoy, Bulacan, abovementioned, however, was reserved for his widow, Maria

Gerardo. In the meantime, Maria Gerardo was appointed administratrix. By virtue thereof, she prepared a

project of partition, which was signed by her in her own behalf and as guardian of the minor Milagros Barretto.

Said project of Partition was approved by the Court of First Instance of Manila on November 22, 1939. The

distribution of the estate and the delivery of the shares of the heirs followed forthwith. As a consequence, Salud

Barretto took immediate possession of her share and secured the cancellation of the original certificates of title

and the issuance of new titles in her own name.

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Everything went well since then. Nobody was heard to complain of any irregularity in the distribution of the

said estate until the widow, Maria Gerardo died on March 5, 1948. Upon her death, it was discovered that she

had executed two wills, in the first of which, she instituted Salud and Milagros, both surnamed Barretto, as her

heirs, and, in the second, she revoked the same and left all her properties in favor of Milagros Barretto alone.

Thus, the later will was allowed and the first rejected. In rejecting the first will presented by Tirso Reyes, as

guardian of the children of Salud Barretto, the lower court held that Salud was not the daughter of the decedent

Maria Gerardo by her husband Bibiano Barretto. This ruling was appealed to the Supreme Court, whichaffirmed the same. 1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria Gerardo,

plaintiff now falls back upon the remnant of the estate of the deceased Bibiano Barretto, which was given in

usufruct to his widow Maria Gerardo. Hence, this action for the recovery of one-half portion thereof.

This action afforded the defendant an opportunity to set up her right of ownership, not only of the fishpond

under litigation, but of all the other properties willed and delivered to Salud Barretto, for being a spurious heir,

and not entitled to any share in the estate of Bibiano Barretto, thereby directly attacking the validity, not only of

the project of partition but of the decision of the court based thereon as well.

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

ab initio and Salud Barretto did not acquire any valid title thereto, and that the court did not acquire any

jurisdiction of the person of the defendant, who was then a minor."

Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project of partition

submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil Case No. 49629 of the

Court of First Instance of Manila) to be null and void ab initio (not merely voidable) because the distributee,

Salud Barretto, predecessor of plaintiffs (now appellants), was not a daughter of the spouses Bibiano Barretto

and Maria Gerardo. The nullity of the project of partition was decreed on the basis of Article 1081 of the Civil

Code of 1889 (then in force) providing as follows:jgc:chanrobles.com.ph

"A partition in which a person was believed to be an heir, without being so, has been included, shall be null and

void."cralaw virtua1aw library

The Court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto was free to

dispose of one- third (1/3) of his estate under the old Civil Code, his will was valid in favor of Salud Barretto

(nee Lim Boco) to the extent, at least, of such free part. And it concluded that, as defendant Milagros was the

only true heir of Bibiano Barretto, she was entitled to recover from Salud, and from the latters children and

successors, all the properties received by her from Bibianos estate, in view of the provisions of Article 1456 of

the new Civil Code of the Philippines establishing that property acquired by fraud or mistake is held by itsacquirer in implied trust for the real owner. Hence, as stated at the beginning of this opinion, the Court a quo not

only dismissed the plaintiffs complaint but ordered them to return the properties received under the project of

partition previously mentioned as prayed for in defendant Milagros Barrettos counterclaim. However, it denied

defendants prayer for damages. Hence, this appeal interposed by both plaintiffs and defendant.

Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to the

present case by the court below. The reason is obvious: Salud Barretto admittedly had been instituted heir in the

late Bibiano Barrettos last will and testament together with defendant Milagros; hence, the partition had

between them could not be one such had with a party who was believed to be an heir without really being one,

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and was not null and void under said article. The legal precept (Article 1081) does not speak of children, or

descendants, but of heirs (without distinction between forced, voluntary or intestate ones), and the fact that

Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named

in his testament; for Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he

chose. While the share (1/2) assigned to Salud impinged on the legitime of Milagros, Salud did not for that

reason cease to be a testamentary heir of Bibiano Barretto.

Nor does the fact that Milagros was allotted in her fathers will a share smaller than her legitime invalidate theinstitution of Salud as heir, since there was here no preterition, or total omission, of a forced heir. For this

reason, Neri v. 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 testators former marriage.

Appellee contends that the partition in question was void as a compromise on the civil status of Salud in

violation of Article 1814 of the old Civil Code. This view is erroneous, since a compromise presupposes the

settlement of a controversy through mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil

Code of the Philippines, Art. 2028); and the condition of Salud as daughter of the testator Bibiano Barretto,

while untrue, was at no time disputed during the settlement of the estate of the testator. There can be no

compromise over issues not in dispute. And while a compromise over civil status is prohibited, the law nowhereforbids a settlement by the parties over the share that should correspond to a claimant to the estate.

At any rate, independently of a project of partition which, as its own name implies, is merely a proposal for

distribution of the estate that the court may accept or reject, it is the court alone that makes the distribution of

the estate and determines the persons entitled thereto and the parts to which each is entitled (Comia v. Reyes, 63

Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that

judicial decree of distribution, once final, that vests title in the distributees. If the decree was erroneous or not in

conformity with law or the testament, the same should have been corrected by opportune appeal; but once it had

become final, its binding effect is like that of any other judgment in rem, unless properly set aside for lack of

jurisdiction or fraud.

It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the same has

become final, the validity or invalidity of the project of partition becomes irrelevant.

It is, however, argued for the appellee that since the courts distribution of the estate of the late Bibiano Barretto

was predicated on the project of partition executed by Salud Barretto and the widow, Maria Gerardo (who

signed for herself and as guardian of the minor Milagros Barretto), and since no evidence was taken of the

filiation of the heirs, nor were any findings of fact or law made, the decree of distribution can have no greater

validity than that of the basic partition, and must stand or fall with it, being in the nature of a judgment by

consent, based on a compromise. Saminiada v. Mata, 92 Phil. 426, is invoked in support of the proposition. That

case is authority for the proposition that a judgment by compromise may be set aside on the ground of mistakeor fraud, upon petition filed in due time, where petition for "relief was filed before the compromise agreement, a

proceeding, was consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partition

was not only ratified by the courts decree of distribution, but actually consummated, so much so that the titles

in the name of the deceased were cancelled, and new certificates issued in favor of the heirs, long before the

decree was attacked. Hence, Saminiada v. Mata does not apply.

Moreover, the defendant-appellees argument would be plausible if it were shown that the sole basis for the

decree of distribution was the project of partition. But, in fact, even without it, the distribution could stand,

since it was in conformity with the probated will of Bibiano Barretto, against the provisions whereof no

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objection had been made. In fact, it was the courts duty to do so. Act 190, section 640, in force in 1939,

provided:chanrob1es virtual 1aw library

Sec. 640. Estate, How Administered.When a will is thus allowed, the court shall grant letters testamentary,

or letters of administration with the will annexed, and such letters testamentary or of administration, shall

extend to all the estate of the testator in the Philippine Islands. Such estate, after the payment of just debts and

expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it;

and the residue, if any, shall be disposed of as is provided by law in cases of estates in these Islands belongingto persons who are inhabitants of another state or country." (Italics supplied)

That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of her father in

1939 does not imply that the said court was without jurisdiction to enter the decree of distribution. Passing upon

a like issue, this Court ruled in Ramos v. Ortuzar, 89 Phil. Reports, pp. 741 and 742:jgc:chanrobles.com.ph

"If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they would be concluded

by the result of the proceedings, not only as to their civil status but as the distribution of the estate as well. As

this court has held in Manolo v. 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 noticeprescribed by Section 630 C.P.C.; and any order that may be entered therein is binding against all of them. (See

also in re Estate of Johnson, 39 Phil. 156.) A final order of distribution of the estate of a deceased person vests

the title to the land of the estate in the distributees. (Santos v. Roman Catholic Bishop of Nueva Caceres, 45

Phil. 895.) There is no reason why, by analogy, these salutary doctrines should not apply to intestate

proceedings.

The only instance that we can think of in which a party interested in a probate proceedings may have a final

liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or

inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same

case by proper motion within the reglementary period, instead of an independent action the effect of which, if

successful, would be, as in the instant case, for another court or judge to throw out a decision or order already

final and executed and reshuffle properties long ago distributed and disposed of."cralaw virtua1aw library

It is well to observe, at this juncture, as this Court expressly declared in Reyes v. Barretto Datu, 94 Phil. 446

(Amd. Rec. Appeal, pp. 156, 157), that:jgc:chanrobles.com.ph

". . . It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and that Maria

Gerardo was not her judicially appointed guardian. The claim is not true. Maria Gerardo signed as guardian of

the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the project of partition that the

guardianship proceedings of the minor Lucia Milagros Barretto are pending in the court, does not mean that the

guardian had not yet been appointed; it meant that the guardianship proceedings, had not yet been terminatedand as a guardianship proceedings begin with the appointment of a guardian, Maria Gerardo must have been

already appointed when she signed the project of partition. There is, therefore, no irregularity or defect or error

in the project of partition, apparent on the record of the testate proceedings, which shows that Maria Gerardo

had no power or authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto, and,

consequently, no ground for the contention that the order approving the project of partition is absolutely null

and void and may be attacked collaterally in these proceedings."cralaw virtua1aw library

So that it is now incontestable that appellee Milagros Barretto was not only made a party by publication but

actually appeared and participated in the proceedings through her guardian: she, therefore, can not escape the

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jurisdiction of the Manila Court of First Instance which settled her fathers estate.

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

the distributee Salud was not her child, the act of said widow in agreeing to the oft-cited partition and

distribution was a fraud on appellees rights and entitles her to relief. In the first place, there is no evidence that

when the estate of Bibiano Barretto was judicially settled and distributed appellants predecessor, Salud Lim

Boco Barretto, knew that she was not Bibianos child; so that if fraud was committed, it was the widow, Maria

Gerardo, who was solely responsible, and neither Salud nor her minor children, appellants herein, can be heldliable therefor. In the second place, granting that there was such fraud, relief therefrom can only be obtained

within 4 years from its discovery, and the record shows that this period had elapsed long ago.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she became of age

five years later, in 1944. On that year, her cause of action accrued to contest on the ground of fraud the court

decree distributing her fathers estate and the four-year period of limitation started to run, to expire in 1948

(Section 43, Act 190). In fact, conceding that Milagros only became aware of the true facts in 1946 (Appellees

Brief, p. 27), her action still became extinct in 1950. Clearly, therefore, the action was already barred when in

August 31, 1956 she filed her counterclaim in this case contesting the decree of distribution of Bibiano

Barrettos estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso Reyes

had induced her to delay filing action by verbally promising to reconvey the properties received by his deceased

wife, Salud. There is no reliable evidence of the alleged promise, which rests exclusively on the oral assertions

of Milagros herself and her counsel. In fact, the trial court made no mention of such promise in the decision

under appeal. Even more: granting arguendo that the promise was made, the same can not bind the wards, the

minor children of Salud, who are the real parties in interest. An abdicative waiver of rights by a guardian, being

an act of disposition, and not of administration, can not bind his wards, being null and void as to them unless

duly authorized by the proper court (Ledesma Hermanos v. Castro, 55 Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for the

settlement of the estate of Bibiano Barretto, duly approved by the Court of First Instance of Manila in 1939, in

its Civil Case No. 49629, is not void for being contrary to either articles 1081 or 1814 of the Civil Code of

1889; (2) that Milagros Barrettos action to contest said partition and decree of distribution is barred by the

statute of limitations; and (3) that her claim that plaintiff-appellant guardian is a possessor in bad faith and

should account for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally

untenable. It follows that the plaintiffs action for partition of the fishpond described in the complaint should

have been given due course.

Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside in

so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu the properties enumeratedin said decision, and the same is affirmed in so far as it denies any right of said appellee to accounting. Let the

records be returned to the court of origin, with instructions to proceed with the action for partition of the

fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of the Register of Deeds of

Bulacan, and for the accounting of the fruits thereof, as prayed for in the complaint. No costs.

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

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

ADOLFO C. AZNAR v. MARIA LUCY CHRISTENSEN DUNCAN

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on

March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its decision of

February 28, 1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter

referred to as Helen Garcia) was a natural child of the deceased. The declaration was appealed to this Court, andwas affirmed in its decision of February 14, 1958 (G.R. No. L-11484)

In another incident relative to the partition of the deceaseds estate, the trial court approved the project

submitted by the executor in accordance with the provisions of the will, which said court found to be valid

under the law of California. Helen Garcia appealed form the order of approval, and this Court, on January 31,

1963, reversed the same on the ground that the validity of the provisions of the will should be governed by

Philippine law, and returned the case to the lower court with instructions that the partition be made as provided

by said law (G.R. No. L-16749)

On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partitionsubmitted by the executor, dated June 30, 1964, wherein the properties of the estate were divided equally

between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter

referred to as merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter

(natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based

on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir

was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only

the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court

and distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the

estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the

inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the

legitimate of Helen Garcia, equivalent to 1/4 of the entire estate.

The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to the

issue in this case:

"3. I declare . . . that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard

Daney), who was born in the Philippines about twenty-eight years ago, who is now residing at No. 665 Rodger

Young Village, Los Angeles, California, U.S.A. "4. I further declare that I now have no living ascendants, and

no descendants except my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.

"7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about

eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way

related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in

Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600),

Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao

Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine

Currency per month until the principal thereof as well as any interest which may have accrued thereon, is

exhausted.

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"12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY

CHRISTENSEN DANEY (Mrs. Bernard Daney now residing, as aforesaid, at No. 665 Rodger Young Village,

Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate,

real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be

possessed at my death and which may have come to me from any source whatsoever, during her lifetime;

Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her

decease having living issue, then and in that event, the life interest herein given shall terminate, and if so

terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSENDANEY the rest, remainder and residue of my property with the same force and effect as if I had originally so

given, devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY

CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and bequeath all the

rest, remainder and residue of my property, one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C.

BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to

the children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los

Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share

and share alike, the share of any of the three above named who may predecease me, to go in equal parts to the

descendants of the deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton die

before my own decease, then, and in that event, the share of my estate devised to her herein I give, devise andbequeath to her children, Elizabeth Borton de Trevio, of Mexico City, Mexico; Barbara Borton Philips, of

Bakersfield, California, U.S.A., or to the heirs of any of them who may die before my own decease, share and

share alike." library

The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory

heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil

Code, which provides:j

"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."caw virtua1aw library

On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the

Civil Code, which says: "Any compulsory heir to whom the testator has left by any title less the legitime

belonging to him may demand that the same be fully satisfied," Appellant also suggests that considering the

provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a

legacy nevertheless, although less than the amount of her legitime, she was in effect defectively disinherited

within the meaning of Article 918, which reads:

"ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted

is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as itmay prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be

valid to such extent as will not impair the legitime."cralaw virtua1aw library

Thus, according to appellant, under both Articles 906 and 918, Helen Garcia is entitled only to her legitime, and

not to a share of the estate equal that of Lucy Duncan as if the succession were intestate.

Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Manresa

defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning

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him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him

some part of the properties.

The question may be posed: In order that the right of a forced heir may be limited only to the completion of his

legitime (instead of the annulment of the institution of heirs) is it necessary that what has been left to him in the

will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In other

words, should he be recognized or referred to in the will as heir? This question is pertinent because in the will of

the deceased Edward E. Christensen Helen Garcia is not mentioned as an heirindeed her status as such is

deniedbut is given a legacy of P3,600.00

While the classical view, pursuant to the Roman law, gave an affirmative answer to the question, according to

both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0p. 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.

Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917,

and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a

legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and

willed the rest of the estate to other persons. It was held that Article 815 applied, and the heir could not ask that

the institution of heirs be annulled entirely, but only that the legitimate be completed. (6 Manresa, pp. 438, 441.)

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

case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia

as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently

declared judicially to possess such status is no reason to assume that had the judicial declaration come during

his lifetime his subjective attitude towards her would have undergone any change and that he would have willed

his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him.

The decision of this Court in Neri, Et. Al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory

of preterition. That decision is not here applicable, because it referred to a will where "the testator left all hisproperty by universal title to the children by his second marriage, and (that) without expressly disinheriting the

children by h is first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator

did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00

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

Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as

her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774,

777, Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently

accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all

such dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impairthe right of ownership of Helen Garcia with respect to her legitime.

One point deserves to be here mentioned. Although no reference to it has been made in the brief for oppositor-

appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should

die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she

is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which

event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator

named in the will. Without deciding this point, since it is not one of the issues raised before us, we might call

attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can

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never burden the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir

concerned in fee simple.

WHEREFORE, the order of the trial court dated October 29, 1964, approving the project of partition as

submitted by the executor- appellee, is hereby set aside; and the case is remanded with instructions to partition

as submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions to

partition the hereditary estate anew as indicated in this decision, that is, by giving the 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 deduction all debts and charges, which shall not include those imposed in the

will of the decedent, in accordance with Article 908 of the Civil Code. Costs against appellees in this instance.

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[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.

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 inofficiousor 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 bequestaccordingly, 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

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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 andapplying 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

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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.

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 ofheirs 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 eightyears 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 theproperties 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 thepurpose 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."cralaw virtua1aw library

Concerning Getulia who died about eight years before the death of her father Agripino Neri, the trial Courtfound that "neither Getulia nor her heirs received any share of the properties."cralaw virtua1aw library

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."cralawvirtua1aw 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."cralaw virtua1aw library

From these findings of the trial Court it is clear that Agapita, Rosario and the children of Getulia had receivedfrom 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 marriagehad 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

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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 administrators possession, as

appears in the inventory filed in court, it is clear that the property of the deceased has remained intact and thatno portion thereof has been given to the children of the first marriage.

"It is stated by the court and practically admitted by the appellants that a child of the first marriage namedGetulia, 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 theproperty not only of the children of the first marriage but also of those of the second marriage."cralaw

virtua1aw library

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 thesecond 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

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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."cralaw virtua1aw library

"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."cralaw virtua1aw library

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 unfoundeddisinheritance, 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.

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.

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.

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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 destroyingintegral 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 iswhere 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 statutoryconstruction. 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.

It is maintained that the word "heredero" under the Civil Code, is not synonymous with the term "heir" under

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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 samesubject, 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 effectivenessunder 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."cralaw virtua1aw library

"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 arehereby 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.

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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 testamentarydisposition 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 childrenby 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.

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[G.R. No. 72706. October 27, 1987.]

CONSTANTINO C. ACAIN v. IAC, VIRGINIA A. FERNANDEZ and ROSA DIONGSON

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-A-CEB 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-A-

CEB. No special pronouncement is made as to costs." library

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:chanrob1es virtual 1aw library

On May 29, 1984 petitioner Constantino Acain filed in the Regional Trial Court of Cebu City Branch XIII, apetition 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-A-CEB (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) submitted

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 testators 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

predeceases me, all the money properties, lands, houses there in Bantayan and here in Cebu City which

constitute my share shall be given by 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-A-CEB.chanrobles law library

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 the deceased and the latters widow Rosa Diongson Vda.de Acain) filed a motion to dismiss on the following grounds: (1) 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

preterited. 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 forcertiorari and prohibition with preliminary injunction which was subsequently

referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985.

Respondent Intermediate Appellate Court granted private respondents petition and ordered the trial court to

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dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591-A-CEB.

His motion for reconsideration having been denied, petitioner filed this present petition for the review of

respondent Courts decision on December 18, 1985 (Rollo, p. 6). Respondents Comment was filed on June 6,

1986.

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 onSeptember 29, 1986.

Petitioner raises the following issues (Memorandum for Petitioner,

(A) The petition filed in AC-G.R. No. 05744 forcertiorari 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 theinstitution of heirs;

(D) DICAT TESTATOR ET ERIT 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 inviolable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591-A-

CEB 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 preterited.

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 be effectual, without

prejudice to the right of representation." library

Preterition consists in the omission in the testators 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 expresslydisinherited (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 was totally omitted and preterited in

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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.

Preterition 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"

(Manresa, as cited in Nuguid v. Nuguid, supra, Maninang v. Court of Appeals, 114 SCRA [19821). The only

provisions which do not result in intestacy are the legacies and devises made in the will for they should standvalid 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

(