VIADO NON VS.

CA
G.R. No. 137287, 15 February 2000
FACTS: Spouses Julian and Virginia Viado owned, among others, a house and lot
pertained to as the Isarog property. Virginia died on 20 October 1982, followed by
Julian 3 years later. Left as heirs were their children namely: Rebecca Viado Non,
Delia Viado, Nilo Viado, and Leah Viado Jacobs. Both Nilo and Leah died on 22 April
1987. Nilo left as heirs his wife Alicia and their 2 children. The children of spouses
Viado lived in the Isarog property together with Nilos widow and children. However,
a dispute arose when Rebecca Viado Non asked that the property be divided equally
between the 2 families to make room for their growing children. Nilos wife and
children claimed absolute ownership over the property evidence by a deed of
donation executed by Julian in favour of Nilo, covering his conjugal share, and a
deed of extrajudicial partition settlement in which Julian, Leah, and Rebecca waived
in favour of Nilo all their interests and rights over their share of the property
inherited from Virginia. Both documents were registered 5 years after its execution,
and a new TCT is issued by the Register of Deeds in Nilos favor. Petitioner Rebecca
contends that Delia Viado, their retardate sister, was not part of the extrajudicial
settlement, and hence amounts to preterition which should invalidate the
settlement. Both the trial court and CA ruled in favor of Nilos wife and children.
Hence this appeal.
ISSUE: Whether or not Delias exclusion from the extrajudicial settlement amounts
to preterition?
RULING: Yes. However, in the absence of bad faith and fraud, Article 1104 of the
Civil Code must apply which, in essence, provides that where the preterition is not
attended by bad faith and fraud, the partition shall not be rescinded but the
preterited heir shall be paid the value of the share pertaining to her.