Succession Cases

754 SUPREME COURT REPORTS ANNOTATED
Austria vs. Reyes
No. L-23079. February 27, 1970.
RUBEN AUSTRIA,CONSUELO AUSTRIA-BENTA

and LAURO AUSTRIA Mozo, petitioners, vs.
HON.ANDRES REYES, Judge, Court of First
Instance of Rizal, PERFECTO CRUZ,BENITA
CRUZ-MENEZ ISAGANI CRUZ,ALBERTO CRUZ
and Luz CRUZ-SALONGA respondents.
Civil law; Succession; Testamentary succession;

Institution of heir; Requisites for annulment of institution
of heir for statement of a false cause.—Before the
institution of heirs may be annulled under Article 850 of
the Civil Code, the following requisites must concur:
First, the cause for the institution of heirs must be stated
in the will; second, the cause must be shown to be false;
and third, it must appear from the face of the will that
the testator would not have made such institution if he
had known the falsity of the cause.
Same; Same; Same; Same; Same; Where will does not
state cause for institution of heir.—Where the decedent’s
will does not state in a specific or unequivocal manner
the cause for such institution of heirs, the will cannot be
annulled under Article 850 of the Civil Code. Such
institution may be annulled only when it is clear, after an
examination of the will that the testator clearly would not
have made the institution if he had known the cause for
it to be false.
Same; Same; Same; Interpretation of will; Testacy
favored.—Testacy is favored and doubts are resolved on
its side, especially where the will evinces an intention on
the part of the testator to dispose of practically his whole
estate, as was done in this case. Moreover, so compelling
is the principle that intestacy should be avoided and the
wishes of the testator allowed to prevail, that we could
even vary the language of the will for the purpose of
giving it effect.
Remedial law; Courts; Inherent powers; Power to
amend and control processes.—Every court has the
inherent power to amend and control its processes and
orders so as to make them conformable to law and justice.
In this case, the lower court had power to reverse its
order of December 22, 1959 because the subsequent
orders complained of served merely to clarify the first—
an act which the court could legally do.
Same; Civil procedure; Intervention; Power of court to
limit extent of intervention.—The court has the power to
limit the extent of a party’s intervention in a probate case
within its powers as articulated by the Rules of Court.
755
VOL. 31, FEBRUARY 18, 1970 755

Austria vs. Reyes
PETITION for certiorari to annul the orders of the

Court of First Instance of Rizal.
The facts are stated in the opinion of the Court.

Salonga, Ordonez, Yap, Sicat & Associates for
petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos & De los Santos
for respondent Perfecto Cruz.
Villareal, Almacen, Navarra & Amores for
other respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed

with the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, aatte
mortem, of her last will and testament The probate
was opposed by the present petitioners Ruben
Austria, Consuelo AustriarBenta and Lauro
Austria Mozo, and still others who, like the
petitioner, are nephews and nieces of Basilia. This
opposition was, however, dismissed and the probate
of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was
destined under the will to pass on to the
respondents Perfecto Cruz, Benita Cruz-Mefiez,
Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga,
all of whom had been assumed and declared by
Basilia as her own legally adopted children.
On April 28, 1959, more than two years after her
will was allowed to probate, Basilia died. The
respondent Perfecto Cruz was appointed executor
without bond by the same court in accordance with
the provisions of the decedent’s will,
notwithstanding the blocking attempt pursued by
the petitioner Ruben Austria.
756

Austria vs. Reyes
Finally, on November 5, 1959, the present

petitioners filed in the same proceedings a petition
in intervention for partition alleging in substance
that they are the nearest of kin of Basilia, and that
the five respondents Perfecto Cruz, et al,, had not in
fact been adopted by the decedent in accordance
with law, in effect rendering these respondents
mere strangers to the decedent and without any
right to 3ucceed as heirs.
Notwithstanding opposition by the respondent
Perfecto Cruz, as executor of the estate, the court a
quo allowed the petitioners’ intervention by its
order of December 22, 1959, couched in broad
terms, as follows: “The Petition in Intervention for
Partition filed by the above-named oppositors
[Ruben Austria, et al.,] dated November 5, 1959 is
hereby granted.’’
In the meantime, the contending sideg debated
the matter of authenticity or lack of it of the several
adoption papers produced and presented by the
respondents. On motion of the petitioners Ruben
Austria, et al, these documents were referred to the
National Bureau of Investigation for examination
and advice. N.B.L report seems to bear out the
genuineness of the documents, but the petitioners,
evidently dissatisfied with the results, managed to
obtain a preliminary opinion from a Constabulary
questioned-document examiner whose views
undermine the authenticity of the said documents.
The petitioners Ruben Austria, et al, thus moved
the lower court to refer the adoption papers to the
Philippine Constabulary for further study. The
petitioners likewise located former personnel of the
court which appeared to have granted the
questioned adoption, and obtained written
depositions from two of them denying any
knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three y«ars
after they were allowed to intervene, the petitioners
Ruben Austria, et al., moved the lower court to set
for hearing the mat-
757
VOL. 31, FEBRUARY 18, 1970 757
Austria vs. Reyes
ter of the genuineness of the adoption of the

respondents Perfecto Cruz, et al., by the late
Basilia. Before the date set by the court for hearing
arrived, however, the respondent Benita Cruz-
Menez, who entered an appearance separately from
that of her brother Perfecto Cruz, filed on February
28, 1963 a motion asking the lower court, by way of
alternative relief, to confine the petitioners’
intervention, should it be permitted, to properties
not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the
respondent Benita’s motion. Both sides
subsequently submitted their respective
memoranda, and finally, the lower court issued an
order on June 4, 1963, delimiting the petitioners'
intervention to the properties of the deceased which
were not disposed of in the will.
The petitioners moved the lower court to
reconsider this latest order, eliciting thereby an
opposition from the respondents. On October 25,
1863 the same court denied the petitioners’ motion
for reconsideration.
A second motion for reconsideration which set off
a long exchange of memoranda from both sides, was
summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this
Court to annul the orders of June 4 and October 25,
1963 and the order of April 21, 1964, all restricting
petitioners' intervention to properties that were not
included in the decedent’s testamentary
dispositions.
The uncontested premises are clear. Two
interests are locked in dispute over the bulk of the
estate of the deceased. Arrayed on one side are the
petitioners Ruben Austria, Consuelo Austria-Benta
and Lauro Austria Mozo, three of a number of
nephews and nieces who are con-cededly the
nearest surviving blood relatives of the de-cedent.
On the other side are the respondents brothers and
sisters, Perfecto Cruz, Benita Cruz-Menez, Isagani
Cruz, Alberto Cruz and Luz Cruz-Salonga, all of
whom heirs in the will of the deceased Basilia, and
all of whom
758

Austria vs. Reyes
claim kinship with the decedent by virtue of legal

adoption. At the heart of the controversy is Basilia’s
last will—immaculate in its extrinsic validity since
It bears the imprimatur of duly conducted probate
proceedings.
The complaint in intervention filed in the lower
court assails the legality of the tie which the
respondent Perfecto Cruz and his brothers and
sisters claim to have with the decedent. The lower
court had, however, assumed, by its orders in
question, that the validity or invalidity of the
adoption is not material nor decisive on the efficacy
of the institution of heirs; for, even if the adoption
in question were spurious, the respondents Perfecto
Cruz, et al., will nevertheless succeed not as
compulsory heirs but as testamentary heirs
instituted in Basilia’s will. This ruling apparently
finds support in article 842 of the Civil Code which
reads:
“One who has no compulsory heirs ‘may dispose of by will

all his estate or any part of it in favor of any person
having capacity to succeed.
“One who has compulsory heirs may dispose of his
estate provided he does not contravene the provisions of
this Code with regard to the legitime of said heirs.”
The lower court must have assumed that since the

petitioners nephews and niece are not compulsory
heirs, they do not possess that interest which can
be prejudiced by a free-wheeling testamentary
disposition. The petitioners’ interest is confined to
properties, if any, that have not been disposed of in
the will, for to that extent intestate succession can
take place and the question of the veracity of the
adoption acquires relevance.
The petitioners nephews and niece, upon the
other hand, insist that the entire estate should
descend to them by intestacy by reason of the
intrinsic nullity of the institution of heirs embodied
in the decedent’s will. They have thus raised
squarely the issue of whether or not such
institution of heirs would retain efficacy in the
event there
759
VOL. 81, FEBRUARY 18, 1970 759

Austria vs. Reyes
exists proof that the adoptionof the same heirs by

the decedent is false.
The petitioners cite, as the controlling rule,
article 850 of the Civil Code which reads:
“The statement of a false cause for the institution of an

heir shall be considered as not written, unless it appears
from the will that the testatpr would not have made such
institution if he had known the falsity of such cause.”
Coming closer to the center of the controversy, the

petitioners have calted the attention of the lower
court and this Court to the following pertinent
portions of the will of the deceased which recite:
“III
“Ang aking mga sapilitang tagapagmana (herederos

forzosos) ay ang aking itinuturing na mga anak na tunay
(Hijos legalmente adoptados) na sina Perfecto, Alberto,
Luz, Benita at Isagani, na pawang may apeiyidong Cruz.
x x x
“V
“Kung ako ay bawian ng Dios ng buhay, ay aking

ipinamaraana ang aking mga ari-ariang maiiwan, sa
kaparaanang sumusunod:
“A.—Aking ipinamamana sa aking nabanggit na
limang anak na sina Perfecto, Alberto, Luz, Benita at
Isagani, na pawang may apeiyidong Cruz, na parepareho
ang kaparti ng bawa’t isa at walang lamangan (en partes
iguales), bilang kanilang sapilitang mana (legiti[ma]),
ang kalahati (1/2) ng aking kaparti sa lahat ng aming ari-
ariang gananciales ng aking yumaong asawang Pedro
Cruz na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No.
1 ng parafo IV ng testamentong ito, ang kalahati (1/2) ng
mga lagay na lupa at palaisdaan na nasa Obando at Polo,
Bulacan, na namana ko sa aking yumaong ama na si
Calixto Austria, at ang kalahati (1/2) ng ilang lagay na
lupa na nasa Tinejeros, Malabon, Rizal, na aking namana
sa yumao kong kapatid na si Fausto Austria.”
The tenor of the language used, the petitioners

argue, gives rise to the inference that the late
Basilia was deceived into
760

Austria vs. Reyes
believing that she was legally bound to bequeath

one-half of her entire estate to the respondents
Perfecto Cruz, et ah as the latter’s legitime. The
petitioners further contend that had the deceased
known the adoption to be spurious, she would not
have instituted the respondents at all—the basis of
the institution being solely her belief that they were
compulsory heirs. Proof therefore of the falsity of
the adoption would cause a nullity of the institution
of heirs and the opening of the estate wide to
intestacy. Did the lower court then abuse its
discretion or act in violation of the rights of the
parties in barring the petitioners nephews and
niece from registering their claim even to properties
adjudicated by the decedent in her will?
Before the institution of heirs may be annulled
under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the
institution of heirs must be stated in the will;
second, the cause must be shown to be false; and
third, it must appear from the face of the will th&t
the testator would not have made such institution if
he had known the falsity of the cause.
The petitioners would have us imply, from the
use of the terms, “sapilitang tagapagmana”
(compulsory heirs) and “sapilitang mana”
(legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix’s
belief that under the law she could not do
otherwise. If this were indeed what prompted the
testatrix in instituting the respondents, she did not
make it known in her will. Surely if she was aware
that succession to the legitime takes place by
operation of law, independent of her own wishes,
she would not have found it convenient to name her
supposed compulsory heirs to their legitimes. Her
express adoption of the rules on legitimes should
very well indicate her complete agreement with
that statutory scheme. But even this, like the
petitioners’ own proposition, is highly speculative of
what was in the mind of the testatrix when she
executed her will.
761
VOL. 31, FEBRUARY 18, 1970 761

Austria vs. Reyes
One fact prevails, however, and it is that the

decedent’s will does not state in a specific or
unequivocal manner the cause for such institution
of heirs. We cannot annul the same on the basis of
guesswork or uncertain implications.
And even if we should accept the petitioners’
theory that the decedent instituted the respondents
Perfecto Cruz, et al. solely because sbe believed that
the law commanded her to do so, on the false
assumption that her adoption of these respondents
was valid, still such insititution must stand.
Article 850 of the Civil Code, quoted above, is a
positive injunction to ignore whatever false cause
the testator may have written in his will for the
institution of heirs. Such institution may be
annulled only when one is satisfied, after an
examination of the will, that the tesitator clearly
would not have made the institution if be had
known the cause for it to be false. Now, would the
late Basilia have caused the revocation of the
institution of heirs if she had known that she was
mistaken in treating tties’e heirs as her legally
adopted children? Or would she have instituted
them nonetheless?
The decedent’s will, which alone should provide
the an&wer, is mute on this point or at best is
vague and uncertain. The phrases, “mga sapilitang
tagapagmana” and “sapilitang mana” were
borrowed from the language of the law on
succession and were used, respectively, to describe
the class of heirs instituted and the abstract object
of the inheritance. They offer no absolute indication
that the decedent would have willed her estate
other than the way she did if she had known that
she was not bound by law to make allowance for
legitimes. Her disposition of the free portion of her
estate (libre disposition) which largely favored the
respondent Perfecto Cruz, the latter’s children, and
the children of the respondent Benita Cruz, shows a
perceptible inclination on
762

Austria vs. Reyes
her part to give to the respondents more than what

she thought the law enjoined her to give to them.
Compare this with the relatively small devise of
land which the decedent had left for her blood
relatives, including the petitioners Consuelo
Austria-Benta and Lauro Mozo and the children of
the petitioner Ruben Austria. Were we to exclude
the respondents Perfecto Cruz, et al. from the
inheritance, then the petitioners and the other
nephews and nieces would succeed to the bulk of
the estate by intestacy—a result which would
subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind
should be swept away by these explicit injunctions
in the Civil Code: “The words of a will are to receive
an interpretation which will give to every
expression some effect, rather than one which will
render any of the expressions inoperative; and of
two modes of interpreting a will, that 1
is to be
preferred which will prevent intestacy.”
Testacy is favored and doubts are resolved on its
side, especially where the will evinces an intention
on the part of the 2testator to dispose of practically
his whole estate, as was done in thia case.
Moreover, so compelling is the principle that
intestacy should be avoided and the wishes of the
testator allowed to prevail, that we could even vary
the language
3
of tihe will for the purpose of giving it
effect A probate court has found, by final judgment,
that the late Basilia Austria Vda. de Cruz was
possessed of testamentary capacity and her last will
executed free from falsification, fraud, trickery or
undue influence. In this situation, it 4 becomes our
duty to give full expression to her will.
At all events, the legality of the adoption of ihe
respondents by the testatrix can be assailed only in
a sepa-
_______________
1 Article 791.
2 53 Cal. Jur. 2d 678.
3 Rodriguez v. Court of Appeals, L-28734, March 24, 1969, 27
SCRA 546, 552; Solla v. Ascueta, 49 Phil 333, 347-348.
4 Ibid, citing Barrera v. Tampoco, 94 Phil. 346, 353.
763
VOL. 31, FEBRUARY 18, 1970 763

Austria vs. Reyes
rate action brought for that purpose,

5
and cannot be
the subject of a collateral attack.
To the petitioners’ charge that the lower court
had no power to reverse its order of December 22,
1959, suffice it to state that, as borne by the
records, the subsequent orders complained of
served merely to clarify the first—an act which the
court could legally do. Every court has the inherent
power to amend and control its processes and
orders 6so as to make them conformable to law and
justice. That the court a quo has limited the extent
of the petitioners’ intervention is also within
7
its
powers as articulated by the Rules of Court.
ACCORDINGLY, the present petition is denied,
at petitioners cost.
Concepcion, C.J., Reyes, J.B.L., Dizon,

Makalintal, Zaldivar, Fernando, Teehankee,
Barredo and Villamor, JJ., concur.
Petition denied.
Notes.—(a) “Forced Heirs” and their “legitime”.—

Under Art. 808 of the old Civil Code, 2/3 of the
property of a decedent constitutes the legitime of
his. legitimate heirs and descendants; one half of
this 2/3 (or 1/3 of the entire estate) is disposable
among the heirs and legitimate descendants of the
decedent according to his will; and the remaining
1/3 is available for “free disposition” by will to
whomsoever the decedent may see fit to direct its
disposition, without exception. (Osorio vs. Osorio, L-
1965, Dec. 29, 1949).
_______________
5 See Gomez v. Concepcion, 47 Phil. 717; Ramos v. Manalac,

89 Phil 270; Santos v. Aranzaso, L-23828, Feb. 28, 1966 16
SCRA 852.
6 Sec. 5, par. (g), Rules of Court.
7 Sec. 2, par. (b), Ibid; Seva, et al. v. Rivera, etc., 73 Phil 477,
479-480, cited in Moran, Comments on the Rules of Court, 1963
edition, Vol. I, pp. 354-355.
764
Bermejo vs. Barrios
(b) Rights of action.—One who is not a forced heir of

a decedent, but merely a collateral heir, has no
standing whatsoever to attack a purported sale of
land by the decedent in her lifetime on the ground
that it was without consideration and in fraud of
his Tights, and even forced heir has no standing to
attack such a transfer on the ground that it was
made with intent to defraud creditors of his
ancestor (Concepcion vs. Sta. Ana, L-2277, Dec. 29,
1950).
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Aznar vs. Duncan
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.
Wills; Succession; Rights of compulsory heir; Preterition

defined.·Preterition is 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 him
expressly, nor assigning to him some part of the testatorÊs estate.
Whether the testator gave a legacy to a person, whom he
characterized in the testamentary provision as not related to him,
but later this person was judicially declared to be his acknowledged
natural child, the case is not a case of preterition but a case of
completion of legitime. The institution in the will would not be
annulled. There would be no intestacy.
Same; Right of compulsory heir, to whom testator left property
less than his legitime to completion of legitime even if he is not
referred to in will as heir.·In order that the right of a forced heir
may be limited to the completion of his legitime (instead of the
annulment of the institution of heirs) it is not 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. As successional rights are
vested as of the moment of death, the forced heir is entitled to the
fruits and increments of his legitime from the testatorÊs death.
Appeals; Substitution of heirs is not an issue where substitute
heirs are not parties to the case.·The reference to and discussion of
the rights of the substitute heirs in appellantÊs brief appears to be
merely for the purpose of refuting the theory advanced by appellees
and not f or the purpose of having the rights of said heirs defined
insofar as, under the terms of the will, they may affect the legitime
of the oppositor-appellant. This point of course was not and could
hardly have been squarely raised as an issue inasmuch as the
substitute heirs are not parties in this case.
Same; No substitution on legitime.·The legitime must descend
to the forced heir in fee simple, since the testator cannot impose on
it any burden, encumbrance, condition or substitution (Arts, 864.
872 and 904. New Civil Code).
591
VOL. 17, JUNE 30, 1966 591

Aznar vs. Duncan
APPEAL from an order of the Court of First Instance of
Davao. Cusi, Jr., J.

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 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, and was affirmed
in its decision of February 14, 1958 (G.R. No. L-11484).
In another incident relative to the partition of the
deceasedÊs 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 from
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 partition
submitted 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
592

Aznar vs. Duncan
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, thisÊ 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 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 pertinent to the issue in this
case:
„3. I declare x x x 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.
x x x
„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 (P3,600.00), 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.Ê
x x x x x
„12, I hereby give, devise and bequeath, unto my wellbeloved

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 Âfrom the rest, remainder, and residue of my
property and estate, real, personal and/or mixed, of
whatsoever
593
VOL. 17, JUNE 30, 1966 593

Aznar vs. Duncan
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 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 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
and bequeath to her children, Elizabeth Borton de Treviño,
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 may die before my own decease, share and share
alike.‰
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:
„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.‰
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 than the legitime
belonging to him may demand that the same be
594

Aznar vs. Duncan
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 it may 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.‰
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.
Commenting on Article 815, Manresa explains:
„Como dice Goyena, en el caso de pretericion puede presumirse

ignorancia o falta de memoria en el testador; en el de dejar algo al
heredero forzoso, no. Este no se encuentra privado totalmente de su
legitima: ha, recibido por cualquier titulo una porcion de los bienes
hereditarios, porcion que no alcanza a completar la legitima, pero
que influeye poderosamente en el animo del legislador para
decidirle a adoptar una solucion bien diferente de la señalada para
el caso de pretericion.‰
„El testador no ha olvidado por completo al heredero forzoso; le
ha dejado bienes; pero haciendo un calculo equivocado, ha repartido
en favor de extraños o en favor de otros legitimarios por via de
legado, donacion o mejora mayor cantidad de la que la ley de
consentia disponer. El heredero forzoso no puede perder su legitima,
pero tampoco puede pedir mas que la misma. De aqui su derecho a
reclamar solamente lo que le falta; al complemento de la porcion
que forzosamente la corresponde.‰
„x x x Dejar el testador por cualquier titulo, equivale a disponer
en testamento por titulo de herencia, legado o mejora, y en favor de
legitimarios, de alguna cantidad o porcion de bienes menos que la
legitima o gual a la misma. Tal sentido, que es. el mas proprio en al
articulo 815, 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 el testamento
nada se deja el legitimario, hay
595
VOL. 17, JUNE 30, 1966 595

Aznar vs. Duncan
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 his legitime, Sanchez
Roman says:
„La desheredacion, como expresa, es siempre voluntaria; la

pretericion puede serlo, pero se presume involuntaria la omision en
que consiste, en cuanto olvida o no atiende el testador en. 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 sus disposiciones testamentarias, o no
instituyendole en parte alguna de la herencia, ni por titulo de
heredero ni por el de legatar o aunque le mencionara o nombrara sin
dejarle mas o menos bienes. Si le dejara algunos, por pocos que sean
e insuficientes para cubrir su legitima, ya no seria caso de
pretericion, sino de complemento de aquella. El primer supuesto o de
pretericion se regula por el articulo 814, y produce accion de nulidad
de la institucion de heredero; y el segundo, o de complemento de
legitima por el 815 y solo origina la accion ad suplementum, 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 him expressly, 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 omision sea completa; que el heredero forzoso
nada reciba en el testamento.
xxx xxx
„B. Que la omision sea completa·Esta condicion se deduce del
mismo Articulo 814 y resulta con evidencia al relacionar este
articulo con el 815. El heredero forzoso a quien el testador deja algo
por cualquier titulo en su testamento, no se halla propiamente
omitido, pues se le nombra y se le reconoce participacion en los
bienes hereditarios. Podria discutirse en el Articulo 814 si era o no
necesario que se reconociese el derecho del heredero como tal
heredero, pero el articulo 815 desvanece esta duda Aquel se ocupa
de privacion 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 por completo. A este caso se refiere el
articulo 814. Privar parcialmente de la legitima, es menguarla o
reducirla, dejar al legitimario una porcion
596

Aznar vs. Duncan
menor que la que le corresponde. A este caso se ref iere el articulo

815. El 813 sienta, pues, una regla general, y las consecuencias del
que brantamiento de esta regla se determina en los articulos 814 y
815." (6 Manresa p. 418.)
Again Sanchez Roman:
„QUE LA OMISION SEA TOTAL.·Aunque el articulo 814 no

consigna de modo expreso esta circumstancia de que la pretericion o
falta de mencion e institucion o disposicion testamentaria 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 de un modo indudable el siguiente articulo
815, al decir que el heredero forzoso a quien el testador haya dejado,
por cualquier titulo, menos de la legitima que la corresponda, podria
pedir 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 para cubrir 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 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 heir·indeed her status as such is denied
·but 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. 2.0·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 esta materia en la doctrina clasica del Derecho
romano y patrio (2); pero con alguna racional modificacion.
Concedian aquellos precedentes legales al heredero forzoso, a quien
no se le dejaba por titulo de tal el completo de su legitima, la accion
para invalidar la institucion hecha en el testamento y reclamar y
obtener aquella mediante el ejercicio de la querella de inoficioso, y
aun cuando resultara favorecido como
597
VOL. 17, JUNE 30, 1966 597

Aznar vs. Duncan
donatario, por otro titulo que no fuera el de heredero, sino al honor

de que se le privaba no dandole este caracter, y solo cuando era
instituido heredero en parte o cantidad inferior a lo que le
correspondiera por legitima, era cuando bastaba el ejercicio de la
accion ad suplementum para completarla, sin necesidad de anular
las otras instituciones de heredero o demas disposiciones contenidas
en el testamento,
El Articulo 851 se aparta de este criterio estricto y se ajusta

a la unica necesidad que le inspira, cual es la de que se
complete la legitima del heredero forzoso, a quien por
cualquier titulo se haya dejado menos de lo que le
corresponda, y se le otorga tan solo el derecho de pedir el
complemento de la misma sin necesidad de que se anulen
las disposiciones testamentarias, que se reduciran en lo que
sean inoficiosas, iciosas, conforme al articulo 817, cuya
interpretacion y sentido tienen ya en su apoyo la sancion de
la jurisprudencia (3); siendo condicion precisa que lo que se
hubiere dejado de menos de 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 testador haya dejado, etc., esto es, por
titulo de legado o donacion mortis causa en el testamento y,
no fuera de al.‰ (Sanchez Roman, Tomo VI, 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 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 legitime be
completed. (6 Manresa, pp. 438, 441.)
The f oregoing 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 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.
598

Aznar vs. Duncan
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 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 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 impair the 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
oppositorappellant. 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 never burden the
legitime (Art. 864 Civil Code), which means that the
legitime must descend to the heir concerned in fee simple.
599
VOL. 17, JUNE 30, 1966 599

Aznar vs. Duncan
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 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, 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.
Chief Justice Concepcion and Justices J.B.L. Reyes,

Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and
Sanchez, concur.
RESOLUTION ON
MOTION FOR RECONSIDERATION
July 30, 1967.
MAKALINTAL, J.:
Oppositor-appellant has filed an ex-parte petition dated

July 11, 1966, making reference to an alleged oversight and
asking for the corresponding correction, in the last
paragraph before the dispositive 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 for oppositor-appellant. It is the
institution of substituted 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 f rom 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 never burden the legitime (Art 864, Civil Code), which means
that the legitime must descend to the heir concerned in fee simple.‰
(Decision, June 30, 1966, pages 14–15; italics ours).
Oppositor-appellant points out that the matter of sub-
600
Aznar vs. Duncan
stitution 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 and discussion of the rights
of the substitute heirs (called American heirs in the brief)
appears to be merely for the purpose of refuting the theory
advanced by appellees and not for the purpose of having
the rights of said heirs defined in so far as, under the terms
of the will, they may affect the legitime of
oppositorappellant. This point of course was not and could
hardly have been squarely raised as an issue inasmuch as
the substitute heirs are not parties in this case. We have
nevertheless 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 Will and Testament of Edward E.
Christensen are valid under Philippine Law and must be
given full force and effect;‰ and to give them full force and
effect would precisely affect the legitime of
oppositorappellant.
Wherefore, the last paragraph before the dispositive
part of our decision quoted above is amended by
eliminating the following phrase in the first sentence:
„although no reference to it has been made in the brief for
oppositorappellant.‰

Barrera, Dizon, J.P. Bengzon, Zaldivar and Sanchez,
concur. Messrs. Justices Regala and Castro took no part.
Order set aside and case remanded to lower court for

further proceedings.
Note.·The instant Aznar case is the third incident in

the proceedings for the settlement of the estate of Edward
E. Christensen to be elevated to the Supreme Court. The
two prior cases are Aznar vs. Garcia, 102 Phil, 1055 and
Aznar vs. Christensen Garcia, 61 O.G. 7302.
With respect to preterition (the correct term is
„pretermission‰, Olaes vs. Tanda, L-21919, May 19, 1966,
17 Supreme Court Reports Annotated), see notes under
Nuguid vs. Nuguid, L-23445, June 23, 1967, per Sanchez,
J.
······
601

VOL. 19, JANUARY 25, 1967 85
Reyes vs. Barretto-Datu
No. L-17818. January 25, 1967.
TIRSO T. REYES, as guardian of the minors Azucena,

Flordelis and Tirso, Jr., all surnamed Reyes y Barretto,
plaintiffs-appellants, vs. LUCIA MILAGROS
BARRETTODATU, defendant-appellee.
Succession; Partition, wherein an instituted heir. who was later

found not to be the decedentÊs child, was included, is valid.·Article
1081 of the Old Civil Code, which provides that „a partition made
with the inclusion of a person believed to be an heir, but who is not,
shall be void,‰ does not apply to a case where the partition was
made between two persons instituted as heirs in a will but it was
found out later that one of them was not the testatorÊs child. The
reason is obvious. The heir, who was not the testatorÊs child, was
admittedly instituted as an heir in the will, and was not merely a
person who was erroneously believed to be an heir (See Reyes vs.
Datu, 94 Phil. 446; Reyes vs. Barretto, 98 Phil. 996). Article 1081
does not speak of children or descendants but of heirs (without
distinction between forced, voluntary or intestate ones), and the fact
that the person in question was not the testatorÊs daughter does not
preclude her from being one of the heirs expressly named in the
testament, for the testator was at liberty to assign the f ree portion
of his estate to
86
whomsover he chose. The fact that the one-half share assigned to

the said person encroached upon the legitime of the other instituted
heir, who was a real daughter of the testator, did not preclude that
person from becoming a testamentary heir of the decedent.
Same; Diminution of legitime of forced heir does not constitute
preterition.·Where the testator allotted in his will to his legitimate
daughter a share less than her legitime, such circumstance would
not invalidate the institution of a stranger as an heir, since there
was no preterition or total omission of a forced heir. The ruling in
Neri vs. Akutin, 72 Phil. 322 is not applicable to the case.
Same; Partition not amounting to a compromise on civil status.
·Where a partition was made between two persons instituted as
heirs in the will, and one of them was found out later not to be the
testatorÊs daughter, while the other was really his daughter, it
cannot be said that the partition was a void compromise on the civil
status of the person who was not the testatorÊs daughter. At the
time of the partition, the civil status of that person was not being
questioned. There can be no compromise on a matter that was not
in issue, While the law outlaws a compromise over civil status, it
does not forbid a settlement by the parties regarding the share that
should correspond to the claimant to the hereditary estate.
Same; When partition decreed by the court is res judicata.·A
project of partition is merely a proposal for the distribution of the
hereditary estate which the court may accept or reject. It is the
court alone that makes the distribution of the estate and
determines the persons entitled thereto (Camia de Reyes vs. Reyes
de Ilano, 63 Phil. 629; Sec. 750, Act 190; Rule 90, Old Rules of
Court; Rule 91, Revised Rules of Court). It is that final judicial
decree of distribution that vests title in the distributees. If the
decree was erroneous, it 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 the court has validly issued a decree of
distribution and the same has become final, the validity or
invalidity of the project of partition becomes irrelevant.
Same; When consummated partition cannot be set aside.·A
partition agreement that was ratified by the courtÊs decree of
distribution and was actually consummated by delivery of the
shares to the distributees cannot be set aside after a long lapse of
time. The rule in Saminiada vs. Mata, 92 Phil. 426 does not apply to
that case.
Same; Distribution according to the will should be respected;
The minority of the distributee does not affect courtÊs jurisdiction.·A
distribution in the decedentÊs will, made according to
87
VOL. 19, JANUARY 25, 1967 87
his will, should be respected. The fact that one of the distributees
was a minor at the time the court issued the decree of distribution
does not imply that the court had no jurisdiction to enter the decree
of distribution. The proceeding for the settlement of a decedentÊs
estate is a proceeding in rem (Ramos vs. Ortuzar, 89 Phil. 741). It is
binding on the distributee who was represented by her mother as
guardian.
Same; Relief on the ground of fraud.·Where in a partition
between two instituted heirs, one of them did not know that she
was not really the child of the testator, it cannot be said that she def
rauded the other heir who was the testatorÊs daughter. At any rate,
relief on the ground of fraud must be obtained within four years
from its discovery. Where the person allegedly defrauded was only
sixteen years old in 1939, when the fraud was allegedly
perpetrated, and she became of age in 1944, and became aware of
the fraud in 1946, her action in 1956 to set aside the partition was
clearly barred.
Guardianship; Guardian cannot waive rights of the ward.·An
abdicative waiver of rights by a guardian is an act of disposition. It
cannot bind his ward, being null and void as to the ward unless
duly authorized by the proper court (Ledesma Hermanos vs. Castro,
55 Phil. 136, 142).
APPEAL from a judgment of the Court of First Instance of

Bulacan.

Recto Law Offices for plaintiff-appellant.
Deogracias T. Reyes and Associates for
defendantappellee.
REYES, J.B.L., J.:
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:
„ÂThis 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 plaintiff Ês wards
88

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 in a will to Salud
Barretto, mother of plaintiff Ês 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, Hagohoy, Bulacan, above-
mentioned, 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
certif ficates of title and the issuance of new titles in her own name.
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
willÊ 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, which affirmed the
1
same.
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 onehalf portion, thereof.
This action afforded the defendant an opportunity to set up her
right of ownership, not only of the fishpond under
________________
1 Reyes vs. Barretto, G.R. No. L-5831, Jan. 31, 1956.
89
VOL. 19, JANUARY 25, 1967 89

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.Ê "
Finding for the defendant (now appellee), Milagros

Barretto, the lower court declared the project of partition
submitted in the proceedings f or 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:
„A partition in which a person was believed to be an heir, without

being so, has been included, shall be null and void.‰
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 latterÊs children and successors, all the properties
received by her from BibianoÊs 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 its acquirer in implied trust for the real
owner. Hence, as stated at the beginning of this opinion,
the Court a quo not only dismissed the plaintiffsÊ complaint
but ordered them to return the properties received under
the project of partition previously mentioned as prayed for
in defendant Milagros BarrettoÊs counterclaim. However, it
denied defendantÊs prayer for damages. Hence, this appeal
interposed by both plaintiffs and defendant
90

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
BarrettoÊs 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, 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
fatherÊs will a share smaller than her legitime invalidate
the institution of Salud as heir, since there was here no
preterition, or total omission, of a forced 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 testatorÊs 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 01 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.
91
VOL. 19, JANUARY 15, 1967 91

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 (Camia vs. 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
courtÊs 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 vs. 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 mistake or 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 courtÊs 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
92

heirs, long before the decree was attacked. Hence,

Saminiada vs. Mata does not apply.
Moreover, the defendant-appelleeÊs 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 objection had been made.
In fact, it was the courtÊs duty to do so. Act 190, section
640, in force in 1939, provided:
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 belonging to 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 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 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 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 He notice prescribed by section 630
C.P.C.; and any order that may be entered therein is binding
against all of them.Ê (See also in re Estate of Johnson, 39 Phil. 156.)
ÂA final order of distribution of the estate of a deceased person vests
the title to the land of the estate in the distributeesÊ. (Santos vs.
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 proceeding may have a final liquidation
93
VOL. 19, JANUARY 25, 1967 93

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.‰
It is well to observe, at this juncture, as this Court
expressly declared in Reyes vs. Barretto Datu, 94 Phil. 446
(AmÊd Rec. Appeal, pp. 158, 157), that:
„x x x lt 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 terminated, and 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.‰
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
jurisdiction of the Manila Court of First Instance which
settled her fatherÊs 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 appelleeÊs 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
appellantsÊ predecessor, Salud Lim Boco Barret-
94

to, knew that she was not BibianoÊs 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 held liable 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 fatherÊs 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 (AppelleeÊs Brief, p.
27), her action still became extinct in 1950. Clearly,
therefore, the action was already barred when in August
31, 1958 she filed her counterclaim in this case contesting
the decree of distribution of Bibiano BarrettoÊs 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 vs. 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
95
VOL. 19, JANUARY 25, 1967 95

Hernandez vs. Albano, et al.
either Article 1081 or 1814 of the Civil Code of 1889; (2)

that Milagros BarrettoÊs 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 plaintiffsÊ 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 enumeracted in 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. T13734 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.
Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon,

J.P., Zaldivar, Sanchez and Castro, JJ., concur.
Judgment reversed in part and affirmed in part.
_____________
VOL. 17, JUNE 23, 1966 449
Nuguid vs. Nuguid, et al.
No. L-23445. June 23, 1966.
REMEDIOS NUGUID, petitioner and appellant, vs. FELIX

NuGUID and PAZ SALONGA NUGUID, oppositors and
appellees.
Wills; Succession; Probate of will; CourtÊs area of inquiry is

limited to extrinsic validity of will; When Court may rule on
intrinsic validity.·In a proceeding for the probate of a will, the
courtÊs area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will, the due execution
thereof, the testatrixÊs testamentary capacity and the com-
________________
1 Manila Railroad Co. vs. Attorney General, 20 Phil. 523.
450
pliance with the requisites or solemnities prescribed by law. The

intrinsic validity of the will normally comes only after the court has
declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the Court should
meet that issue.
Same; Preterition; Omission of forced heirs in the will.·Where
the deceased left no descendants, legitimate or illegitimate, but she
left forced heirs in the direct ascending line·her parents, and her
holographic will does not explicitly disinherit them but simply omits
their names altogether, the case is one of preterition of the parents,
not a case of ineffective disinheritance.
Same; Preterition distinguished from disinheritance.·
Preterition „consists in the omission in the testatorÊs will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited.‰ (Neri vs. Akutin,
72 Phil., 325). Disinheritance, in turn, „is a testamentary disposition
depriving any compulsory heir of his share in the legitime for a
cause authorized by law.‰ (Justice J.B.L. Reyes and R.C. Puno, „An
Outline of Philippine Civil Law‰, 1966 ed., Vol. III, p. 8, citing
cases.) Disinheritance is always „voluntary‰; preterition, upon the
other hand, is presumed to be „involuntary‰ (Sánchez Román,
Estudios de Derecho Civil, 2nd edition, Volumen 2.o, p. 1131).
Same; Effects flowing from preterition and disinheritance.·The
effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the New Civil Code
„shall annul the institution of heir‰. This annulment is in toto,
unless in the will there are, in addition, testamentary dispositions
in the form of devises or legacies. In ineffective disinheritance
under Article 918 of the same Code, such disinheritance shall also
„annul the institution of heirs‰, but only „insofar as it may prejudice
the person disinherited‰, which last phrase was omitted in the case
of preterition (III Tolentino, Civil Code of the Philippines, 1961
Edition, p. 172). Better stated yet, in disinheritance the nullity is
limited to that portion of the estate of which the disinherited heirs
have been illegally deprived.
Same; When institution of heirs is void.·Where the
onesentence will institutes the petitioner as the sole, universal heir
and preterits the parents of the testatrix, and it contains no specif ic
legacies or bequests, such universal institution of petitioner, by
itself, is void. And intestate succession ensues.
Same; When legacies and devises merit consideration.·
Legacies and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854 of the New
Civil Code suggests that the mere institution of a universal heir in
a will·void because of preterition·would
451
VOL. 17, JUNE 23, 1966 451
give the heir so instituted a share in the inheritance. As to him, the

will is inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies apart
and separate from the nullified institution of heir.
Same; Institution of heirs cannot be considered a legacy.·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 of the old
Civil Code, 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 of the same Code.

Rizal, San Diego, J.

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 and Paz 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 a holographic will
allegedly executed by Rosario Nuguid on November 17,
1951, some 11 years before her demise. Petitioner prayed
that said will be admitted to probate and that letters of
administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga
Nuguid, concededly the legitimate father and mother of the
deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, 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.
452

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.
The courtÊs order of November 8, 1963, held that „the
will in question is a complete nullity and will perforce
create intestacy of the estate of the deceased Rosario
Nuguid‰ and dismissed the petition without 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 of a will. The
courtÊs area of inquiry is limited·to an examination of, and
resolution on, the extrinsic validity of the will. The due
execution thereof, the testatrixÊs testamentary capacity,
and the compliance with the requisites or solemnities by
law prescribed, are the questions solely to be presented,
and to be acted upon, by the court Said court at this stage
of the proceedings·is not called upon to rule on the
intrinsic validity or efficacy of the provisions
1
of the will, the
legality of any devise or legacy therein.
A peculiar situation is here thrust upon us. The parties
shunted aside the question of whether or not the 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 court2 has declared that the will has been
duly authenticated. But petitioner 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 the event of probate or if the court rejects the
will, probability exists that the
________________
1 Castañeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc.,
et al., 5 Phil. 436, 440–441; Limjuco vs. Ganara, 11 Phil. 393, 394–395;
Montañano vs. Suesa, 14 Phil. 676, 679; Riera vs. Palmorali, et al., 40
Phil. 105, 116; In re Estate of Johnson, 39 Phil. 156, 174; Palacios vs.
Palacios, 58 O.G. No. 2, 220, 221; Teotico vs. Del Val, etc., L-18753,
March 26, 1965.
2 Section 13, Rule 76 of the Rules of Court,
453
VOL. 17, JUNE 23, 1966 453

case will come up once again before us on the same issue of

the intrinsic validity or nullity of the will. Result: waste of
time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we
might as well meet head-on the issue 3
of the validity of the
provisions of the will in question. After all, there exists a
justiciable controversy crying for solution.
2. PetitionerÊs sole assignment of error challenges the
correctness of the conclusion below that the will 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 certain amount of property, do hereby
give, devise, and bequeath all of the property which I may have
when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my
name this seventh day of November, nineteen hundred and fifty-
one.
(Sgd.) Illegible
T/ ROSARIO NUGUID"
The statute we are called upon to apply in Article 854 of

the Civil Code which, in part, provides:
„ART. 854. The preterition or omission of one, some, or all of the

annul the institution of heir; but the devises and legacies shall be
valid insofar as they are not inofficious. x x x‰
Except for inconsequential variation in terms, the foregoing

is a reproduction of Article 814 of the Civil Code of Spain of
1889, which is similarly herein copied, thus·
„Art. 814. The preterition of one or all of the forced heirs in the
direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall void the institution of heir;
4
but the legacies and betterments shall be valid, in so far as they
are not inofficious. x x x‰
A comprehensive understanding of the term preteri-
_______________
3 Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil.
517, 522.
4 Betterments are eliminated in the present Civil Code. II Padilla,
Civil Code Annotated, p. 1077.
454

tion employed 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, o aun nombrandole como padre, hijo, etc.,
no se le instituya heredero ni se le deshereda expresamente, ni se le
asigna parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que
en el testamento omita el testador a uno cualquiera de aquellos a
quienes por su muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero
forzoso. b) Que la omision sea completa; que el heredero forzoso
5
nada reciba en el testamento."
It may now appear trite but nonetheless helpful in giving

us a clear perspective of the problem before us, to have on
hand a clear-cut definition of the word annul:
„To ÂannulÊ means to abrogate, to make void; x x x In re MorrowÊs

6
Estate, 54 A. 342, 343, 204 Pa. 484."
„The word ÂannulÊ as used in statute requiring court to annul
alimony provisions of divorce decree upon wifeÊs remarriage means
to reduce to nothing; to annihilate; obliterate; blot out; to make void
or of no effect; to nullify; to abolish. N.J.S.A. 2:50·38 (now N.J.S.
2A:34–35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N.J Eq.
7
132."
„ANNUL. To reduce to nothing; annihilate; obliterate; to make
void or of no effect; to nullify; to abolish; to do away with. Ex parte
8
Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774."
And now, back to the facts and the law. The deceased
Rosario Nuguid left no descendants, legitimate or
illegitimate. But she left forced heirs in the direct
ascending line·her parents, now oppositors Felix Nuguid
and Paz Salonga Nuguid. And, the will completely omits
both of them: They thus received nothing by the testament;
tacitly, they were deprived of their legitime; neither were
they expressly disinherited. This is a clear case of
preterition, Such preterition in the words of Manresa
„anulara siempre la institucion de heredero, dando caracter
absoluto a este ordenamiento‰, referring
9
to the mandate of
Article 814, now 854 of the Civil Code. The one-sentence
________________
5 VI Manresa, Commentarios al Codigo Civil Español, 7th Edition,

(1951), p. 424.
6 Words & Phrases, Vol. 3A, Permanent Ed., p. 3.
7 Id., p. 4.
8 BlackÊs Law Dictionary, 4th ed., p. 117.
9 Manresa, id., p. 426
455
VOL. 17, JUNE 23, 1966 455

will here institutes petitioner as the sole, universal heir·

nothing more. No specif ic legacies or bequests are therein
provided for. It is in this posture that we say that the
nullity is complete. Perforce, Rosario Nuguid died
intestate. Says Manresa:
„En cuanto a la institucion de heredero, se anula. Lo que se anula

deja de existir, œ en todo o en parte? No se añade limitacion alguna,
como en el articulo 851, en el que se expresa que se anulara la
institucion de heredero en cuanto perjudique a la legitima del
deseheredado. Debe, pues, entenderse que la anulacion es completa
o total, y que este articulo como especial en el caso que le motiva,
10
rige con preferencia al 817."
The same view is expressed by Sanchez Roman:·
„La consecuencia de la anulacion o nulidad de la institucion de

heredero por pretericion de uno, varios o todos los forzosos en linea
recta, es la apertura de la sucesion intestada, total o parcial. Sera
total, cuando el testador que comete la pretericion, hubiese
dispuesto de todos los bienes por titulo universal de herencia en
favor de los herederos instituidos, cuya institucion se anula, porque
asi lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que Âanulara la
11
institucion de heredero/ x x x"
Really, as we analyze the word annul employed in the

statute, there is no escaping the conclusion that the
universal institution of petitioner to the entire inheritance
results in totally abrogating the will. Because, the
nullification of such institution of universal heir·without
any other testamentary disposition in the will·amounts to
a declaration that nothing at all was written. Carefully
worded and in clear terms, Article 854 offers no leeway for
inferential interpretation. Giving it an expansive meaning
will tear up by the roots the fabric of the statute. On this
point, Sanchez Roman cites the „Memoria annual del
Tribunal Supremo, correspondiente a 1908", which in our
opinion expresses the rule of interpretation, viz:
„x x x El art. 814, que preceptua en tales casos de pretericion la

nulidad de la institucion de heredero, no consiente interpretacion
alguna favorable a la persona instituida en el sentido antes
expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o
menos equitativa, porque una nulidad no significa en De-
________________
10 Manresa, id., pp. 431–432. ho Civil, il 2nd nd Edi

11 VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o,
p. 1140.
456

recho sino la suposicion de que el hecho o el acto no se ha realizado,

debiendo, por lo tanto, procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es
obligado llamar a los herederos f orzosos en todo caso, como habria
que llamar a los de otra clase, cuando el testador no hubiese
distribudo todos sus bienes en legados, siendo tanto mas obligada
esta consecuencia legal cuanto que, en materia de testamentos,
sabido es, segun tiene declarado la jurisprudencia, con repeticion,
que no basta que sea conocida la voluntad de quien testa si esta
voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto
de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi f uese, sera esto razon para modif icar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y a los
principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho constituyente, hay
razon para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el legislador
12
quiere establecer."
3. We should not be led astray by the statement in Article

854 that, annullment notwithstanding, Âthe devises and
legacies shall be valid insofar as they are not inofficious‰.
Legacies and devises merit consideration only when they
are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in
a will·void because of preterition·would give the heir so
instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies
apart and separate from the nullified institution of heir.
Sanchez Roman, speaking of the two component parts of
Article 814, now 854, states that preterition annuls the
institution of the heir „totalmente por la pretericion‰; but
added (in reference to legacies and bequests), „pero
subsistiendo, x x x todas aquellas otras disposiciones que
no se refieren a la nsti-
________________
12 VI Sanchez Roman, id., p. 138. This is also cited in the Neri case, 74
Phil. 192–193.
Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled „An
Outline of Philippine Civil Law‰, 1956 ed., Vol. III, p. 8; citing Gil vs.
Murciano, L-3362, March 1, 1951, likewise opined that „the right to
make a will is statutory. not a natural right, and must be subordinate to
law and public policy‰.
457
VOL. 17, JUNE 23, 1966 457

13
tucion de heredero x x x". As Manresa puts it, annulment
throws open to intestate succession the entire inheritance
including „la porcion libre (que) no14hubiese dispuesto en
virtud de legado, mejora o donacion."
As aforesaid, there is no other provision in the will
before us except the institution of petitioner as universal
heir. That institution, by itself, is null and void. And,
intestate succession ensues,
4. PetitionerÊs mainstay is that the present is „a case of 15
ineffective disinheritance rather than one of preterition‰
From this, petitioner draws the conclusion that Article 854
„does not apply to the case at bar‰. This argument fails to
appreciate the distinction between preterition and
disinheritance.
Preterition „consists in the omission in the testatorÊs will
of the forced heirs or anyone of them, either because they
are not mentioned therein, or, though mentioned, they are 16
neither instituted as heirs nor are expressly disinherited."
Disinheritance, in turn, „is a testamentary disposition
depriving any compulsory heir 17 of his share in the legitime
for a cause authorized by law." In ManresaÊs own words:
„La privacion expresa de la legitima constituye la
desheredacion. La privacion18
tacita de la misma se
denomina pretericion." Sanchez Roman emphasizes the
distinction by stating that disinheritance „es siempre
voluntaria‰; preterition,
19
upon the other hand, is presumed
to be „involuntaria". Express as disinheritance should be,
the same must 20
be supported by a legal cause specified in
the will itself.
The will here does not explicitly disinherit the testatrixÊs
________________
13 Sanchez Roman, id., p. 1141.

14 Manresa, id., 434.
15 PetitionerÊs brief, p. 15.
16 Neri, et al. vs; Akutin. et al., supra, 72 Phil., at p. 325.
17 Justice J.B.L. Reyes and Judge R.C. Puno, id., p. 106.
18 Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107,
speaking of the requisites of a valid disinheritance, confirm the theory
that disinheritance „must be express (not implied) (Art. 918); otherwise
there is preterition‰:
19 Sanchez Roman, id., p. 1131.
20 Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp,
750–752.
458

parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs
suffer from preterition.
On top of this is the fact that the effects flowing from
preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil
Code, we repeat, „shall annul the institution of heir‰. This
annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises
or legacies. In ineffective disinheritance under Article 918
of the same Code, such disinheritance shall also „annul the
institution of heirs‰, put only „insofar as it may prejudice
the person disinherited‰,
21
which last phrase was omitted in
the case of preterition. Better stated yet, in disinheritance
the nullity is limited to that portion of the estate of which
the disinherited heirs have been illegally deprived.
ManresaÊs expressive language, in commenting on the
rights of the preterited heirs in the case of preterition on
the one hand and legal disinheritance on the other, runs
thus: „Preteridos, adquiren el derecho a todo;
22
desheredados
23
solo les corresponde un tercio o dos tercios, el caso."
5. Petitioner insists that the compulsory heirs
ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir „is not
invalidated,‰ although the inheritance of the 24heir so
instituted is reduced to the extent of said legitimes. ,
This is best answered by a reference to the opinion of
Mr. Chief Justice Moran in the Neri case heretofore cited,
viz:
„But the theory is advanced that the bequest made by universal

title in f avor 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
________________
21 III Tolentino, Civil Code of the Philippines, 1961 Edition, 172.

22 Now, one-half, Articles 888 and 889, Civil Code.
23 Manresa, id., p. 430,
24 PetitionerÊs brief, p. 13,
459
VOL. 17, JUNE 23, 1966 459

made to fall into the concept of legacies and betterments reducing

the bequest accordingly, then the provisions of Articles 814 and 851
regarding total or partial nullity of the institution, would be
absolutely meaningless and will never have any application at all.
And the remaining provisions contained in said article concerning
the reduction of inofficious legacies or betterments would be a
surplusage because they would be absorbed by Article 817. Thus,
instead of construing, we would be destroying integral provisions of
the Civil Code.
The destructive effect of the theory thus advanced is due mainly
to a failure to distinguish institution of heirs from legacies and
betterments, and a general from a special provision. With reference
to article 814, which is the only provision material to the disposition
of this case, it must be observed that the institution of heirs is
therein dealt with as a thing separate and distinct from legacies or
betterments. 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. x x x But again an institution of heirs cannot be taken as a
25
legacy."
The disputed order, we observe, declares the will in

question „a complete nullity‰. Article 854 of the Civil Code
in turn merely nullifies „the institution of heir‰.
Considering, however, that the will before us solely
provides for the institution of petitioner as universal heir,
and nothing more, the result is the same. The entire will is
null.
Upon the view we take of this case, the order of
November 8, 1963 under review is hereby affirmed. No
costs allowed. So ordered.

Barrera, Dizon, Regala, Makalintal, J.P. Bengzon and
Zaldivar, concur.
Order affirmed.
Note.·Preterition (pretermission) is the omission from

the inheritance of a compulsory heir in the direct line (not
including the spouse).
________________
25 Neri, et al. vs. Akutin, et al., 74 Phil. pp. 191–192. Arts. 817 and
851, Civil Code of Spain of 1889, referred to in the opinion above, are now
Arts. 907 and 918 of the present Civil Code.
460

Baltazar, et al. vs. Caridad, et al.
The Nuguid case holds that a will instituting the testatrixÊs

sister as heir and preteriting her parents or her compulsory
heirs, is void because of that preterition. Being void, the
institution is annulled and completely intestacy results
(Par. 1, Art. 960, New Civil Code).
The Nuguid case follows the ruling in Neri vs. Akutin,
72 Phil. 322 and 74 Phil. 185 and revokes the ruling in
Escuin vs. Escuin, 11 Phil. 322 and Eleazar vs. Eleazar, 67
Phil. 497. These two cases are not mentioned at all in the
Nuguid case.
In the Eleazar case, the testator preterited in his will his
father, disinherited his wife and instituted as heir one
Miguela Eleazar. It was held that the institution of heir
was void only insofar as it impaired the fatherÊs legitime. It
was valid as to the free portion, which should be considered
as a legacy to Miguela Eleazar. The preterition did not
result in total intestacy. The decision in the Eleazar case
was penned by Justice Moran, the ponente in the Akutin
case,
The ruling in the Eleazar case was based on the Escuin
case, where the testator (a natural child) instituted as heirs
in his will his natural father and his wife, preteriting his
own acknowledged natural child. It was held that the
preterition did not produce total intestacy. The natural
child was given his legitime, or one-third of the estate, as
fixed in the old Civil Code, and the father and wife were
given the other two-thirds as „legacies‰. The same solution
was adopted in Ramirez vs. Gamur, 42 Phil. 855. See Aznar
vs. Duncan, L-24365, June 30, 1966, post.
······

Acain vs. Intermediate Appellate Court
*
No. L-72706. October 27,1987.
CONSTANTINO C. ACAIN, petitioner, vs. HON.

INTERMEDIATE APPELLATE COURT (Third Special
Cases Division), VIRGINIA A. FERNANDEZ and ROSA
DIONGSON, respondents.
Civil Law; Succession; Preterition, meaning of; Article 854 of

the Civil Code not applicable to the surviving spouse; Adoption
makes the adopted the legal heir of the adopter.·Preterition consists
in the omission in the testatorÊs will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly
disinherited
______________
* EN BANC.
101
VOL. 155, OCTOBER 27, 1987 101
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of

Appeals, 114 SCRA [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 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.
Same; Same; Same; Preterition annuls the institution of an heir
and creates intestate succession but legacies and devises are valid
and respected insofar as they are not inofficious.·Preterition
annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including „la portion
libre (que) no hubiese dispuesto en virtual de legado, mejora o
donation‰ (Manresa, as cited in Nuguid v. Nuguid, supra; Maninang
v. Court of Appeals, 114 SCRA [1982]). The only provisions which do
not result in intestacy are the legacies and devises made in the will
for they should stand valid and respected, except in so far as the
legitimes are concerned.
Same; Same; Same; Same; Institution of petitioner and his
brothers and sisters to the entire inheritance totally abrogates the
will.·The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of the testator results
in totally abrogating the will because the nullification of such
institution of universal heirs·without any other testamentary
disposition in the will·amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 of the
Civil Code offers no leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having been provided in the
will the whole property of the deceased has been left by universal
title to petitioner and his brothers and sisters. The effect of
annulling the
102
institution of heirs will be, necessarily, the opening of a total

intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper
legacies and devises must, as already stated above, be respected.
Same; Same; Probate of a will; Petitioner has no legal standing
to petition for the probate of the will of the deceased, hence Special
Proceeding No. 591-A-CEB must be dismissed.·In order that a
person may be allowed to intervene in a probate proceeding he must
have an interest in the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of the estate and
an interested party is one who would be benefited by the estate
such as an heir or one who has a claim against the estate like a
creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is
not the appointed executor, neither a devisee or a legatee there
being no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to
receive (Article 782, Civil Code). At the outset, he appears to have
an interest in the will as an heir, defined under Article 782 of the
Civil Code as a person called to the succession either by the
provision of a will or by operation of law. However, intestacy having
resulted from the preterition of respondent adopted child and the
universal institution of heirs, petitioner is in effect not an heir of
the testator. He has no legal standing to petition for the probate of
the will left by the deceased and Special Proceedings No. 591-A-
CEB must be dismissed.
Same; Same; Same; Rule that probate CourtÊs authority is
limited only to the extrinsic validity of the will, not inflexible and
absolute; Court may pass upon the intrinsic validity of the will
under exceptional circumstances.·Special Proceedings No. 591-
CEB is for the probate of a will. As stated by respondent Court, the
general rule is that the probate courtÊs authority is limited only to
the extrinsic validity of the will, the due execution thereof, the
testatorÊs testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of
the will normally come only after the Court has declared that the
will has been duly authenticated. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA
449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA 522
[1984]); and Nepomuceno v. Court of Appeals, 139 SCRA 206
[1985]). The rule, however, is not inflexible and absolute. Under
exceptional circumstances, the probate court is not powerless to do
what the situa-
103
VOL. 155, OCTOBER 27, 1987 103
tion constrains it to do and pass upon certain provisions of the will

(Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the
oppositors to the probate moved to dismiss on the ground of
absolute preterition. The probate court acting on the motion held
that the will in question was a complete nullity and dismissed the
petition without costs. On appeal the Supreme Court upheld the
decision of the probate court, induced by practical considerations.
Same; Same; Same; Same; Trial Court could have denied
outright the probate of the will or have passed upon its intrinsic
validity where on its face it appears to be intrinsically void.·For
private respondents to have tolerated the probate of the will and
allowed the case to progress when on its face the will appears to be
intrinsically void as petitioner and his brothers and sisters were
instituted as universal heirs coupled with the obvious fact that one
of the private respondents had been preterited would have been an
exercise in futility. It would have meant a waste of time, effort,
expense, plus added futility. The trial court could have denied its
probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will
was resolved (Cayetano v. Leonidas, supra; Nuguid v. Nuguid,
supra). The remedies of certiorari and prohibition were properly
availed of by private respondents.
Certiorari; Remedy of Certiorari cannot be a substitute for

appeal, exception.·As a general rule certiorari cannot be a
substitute for appeal, except when the questioned order is an
oppressive exercise of judicial authority (People v. Villanueva, 110
SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982];
Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and
Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that
the remedies of certiorari and prohibition are not available where
the petitioner has the remedy of appeal or some other plain, speedy
and adequate remedy in the course of law (D.D. Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are,
however, proper remedies to correct a grave abuse of discretion of
the trial court in not dismissing a case where the dismissal is
founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125
SCRA 137 [1983]).
Same; Same; Certiorari may be entertained where appeal will
not afford a speedy and adequate relief.·Thus, this Court ruled
that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate
remedies of cer-
104
tiorari and prohibition to correct a grave abuse of discretion,

amounting to lack of jurisdiction, committed by the trial court in
not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra)
and even assuming the existence of the remedy of appeal, the Court
harkens to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where appeal
would not afford speedy and adequate relief.
PETITION for certiorari to review the decision of the Court

of Appeals. Melo, J.
PARAS, J.:
**
This is a petition for review on certiorari of the decision of
respondent Court of Appeals in AC-G.R. SP No. 05744
promulgated on August 30, 1985 (Rollo, p. 108) ordering
the dismissal of the petition in Special Proceedings No.
591-A-CEB and its Resolution issued on October 23, 1985
(Rollo, p. 72) denying respondentsÊ (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.‰
The antecedents of the case, based on the summary of the

Intermediate Appellate Court, now Court of Appeals,
(Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed in
the Regional Trial Court of Cebu City Branch XIII, a
petition for the probate of the will of the late Nemesio
Acain and for the issuance to the same petitioner of letters
testamentary,
________________
** Penned by Justice Jose A. R. Melo and concurred in by Justices
Milagros A. German and Nathanael P. De Pano, Jr.
105
VOL. 155, OCTOBER 27, 1987 105

Acain vs. Intermediate Appellate Court.
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 testatorÊs 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.
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 latterÊs 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.
(Rollo, p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for
reconsideration in the lower court, respondents filed with
the Supreme Court a petition for certiorari and prohibition
with preliminary injunction which was subsequently
referred to the In-
106

termediate Appellate Court by Resolution of the Court

dated March 11, 1985 (Memorandum for Petitioner, p. 3;
Rollo, p. 159).
Respondent Intermediate Appellate Court granted
private respondentsÊ petition and ordered the trial court to
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 CourtÊs decision on December 18, 1985 (Rollo, p.
6). RespondentsÊ Comment was filed on June 6, 1986 (Rollo,
p. 146).
On August 11, 1986 the Court resolved to give due
course to the petition (Rollo, p. 153). RespondentsÊ
Memorandum was filed on September 22, 1986 (Rollo, p.
157); the Memorandum for petitioner was filed on
September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for
Petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for

certiorari and prohibition with preliminary
injunction is not the proper remedy under the
premises;
(B) The authority of the probate courts is limited only
to inquiring into the extrinsic validity of the will
sought to be probated and it cannot pass upon the
intrinsic validity thereof before it is admitted to
probate;
(C) The will of Nemesio Acain is valid and must
therefore, be admitted to probate. The preterition
mentioned in Article 854 of the New Civil Code
refers to preterition of „compulsory heirs in the
direct line,‰ and does not apply to private
respondents who are not compulsory heirs in the
direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET 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.
107
VOL. 155, OCTOBER 27, 1987 107

(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

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.‰
Preterition consists in the omission in the testatorÊs will of

the forced heirs or anyone of them either because they are
not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court
of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is
concerned, Article 854 of the Civil Code may not apply as
she does not ascend or descend from the testator, although
she is a compulsory heir. Stated otherwise, even if the
surviving spouse is a compulsory heir, there is no
preterition even if she is omitted from the inheritance, for
she is not in the direct line. (Art. 854, Civil Code) However,
the same thing cannot be said of the other respondent
Virginia A. Fernandez, whose legal adoption by the testator
has not been questioned by petitioner (Memorandum for
the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603,
known as the Child and Youth Welfare Code, adoption gives
to the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot be
denied that she was totally omitted and preterited in the
will of the testator and that both adopted child and the
widow were deprived of at
108

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 portion libre (que) no hubiese
dispuesto en virtual de legado, mejora o donation‰
(Manresa, as cited in Nuguid v. Nuguid, supra; Maninang
v. Court of Appeals, 114 SCRA [1982]). The only provisions
which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and
respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of the testator
results in totally abrogating the will because the
nullification of such institution of universal heirs·without
any other testamentary disposition in the will·amounts to
a declaration that nothing at all was written. Carefully
worded and in clear terms, Article 854 of the Civil Code
offers no leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has
been left by universal title to petitioner and his brothers
and sisters. The effect of annulling the institution of heirs
will be, necessarily, the opening of a total intestacy (Neri v.
Akutin, 74 Phil. 185 [1943]) except that proper legacies and
devises must, as already stated above, be respected.
We now deal with another matter. In order that a person
may be allowed to intervene in a probate proceeding he
must have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a
claimant of the estate and an interested party is one who
would be benefited by the estate such as an heir or one who
has a claim against the estate like a creditor (Sumilang v.
Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there
being no mention in the testamentary disposition of any
gift of an individual item of personal or real property he is
called upon to receive (Article 782, Civil Code). At the
outset, he appears to have an interest in the will
109
VOL. 155, OCTOBER 27, 1987 109

as an heir, defined under Article 782 of the Civil Code as a

person called to the succession either by the provision of a
will or by operation of law. However, intestacy having
resulted from the preterition of respondent adopted child
and the universal institution of heirs, petitioner is in effect
not an heir of the testator. He has no legal standing to
petition for the probate of the will left by the deceased and
Special Proceedings No. 591-A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for
appeal, except when the questioned order is an oppressive
exercise of judicial authority (People v. Villanueva, 110
SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA
308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587
[1985]). It is axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner has the
remedy of appeal or some other plain, speedy and adequate
remedy in the course of law (D.D. Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]).
They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a
case where the dismissal is founded on valid grounds (Vda.
de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591-CEB is for the probate of a
will. As stated by respondent Court, the general rule is that
the probate courtÊs authority is limited only to the extrinsic
validity of the will, the due execution thereof, the testatorÊs
testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the Court has
declared that the will has been duly authenticated. Said
court at this stage of the proceedings is not called upon to
rule on the intrinsic validity or efficacy of the provisions of
the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang
v. Ramagosa, supra; Maninang v. Court of Appeals, 114
SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA 522
[1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206
[1985]).
The rule, however, is not inflexible and absolute. Under
exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and
pass upon certain
110

provisions of the will (Nepomuceno v. Court of Appeals,

supra). In Nuguid v. Nuguid the oppositors to the probate
moved to dismiss on the ground of absolute preterition. The
probate court acting on the motion held that the will in
question was a complete nullity and dismissed the petition
without costs. On appeal the Supreme Court upheld the
decision of the probate court, induced by practical
considerations. The Court said:
„We pause to reflect. If the case were to be remanded for probate of

the will, nothing will be gained. On the contrary, this litigation will
be protracted. And for aught that appears in the record, in the event
of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the
intrinsic validity or nullity of the will. Result: waste of time, effort,
expense, plus added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question. After
all there exists a justiciable controversy crying for solution.‰
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion

to dismiss the petition by the surviving spouse was
grounded on petitionerÊs lack of legal capacity to institute
the proceedings which was fully substantiated by the
evidence during the hearing held in connection with said
motion. The Court upheld the probate courtÊs order of
dismissal.
In Cayetano v. Leonidas, supra one of the issues raised
in the motion to dismiss the petition deals with the validity
of the provisions of the will. Respondent Judge allowed the
probate of the will. The Court held that as on its face the
will appeared to have preterited the petitioner the
respondent judge should have denied its probate outright.
Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the
extrinsic validity of the will is resolved, the probate court
should meet the issue. (Nepomuceno v. Court of Appeals,
supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to
dismiss the petition in Sp. Proceedings No. 591-CEB of the
Regional Trial Court of Cebu on the following grounds: (1)
petitioner has no legal capacity to institute the
proceedings; (2) he is merely a universal heir; and (3) the
widow and the adopted
111
VOL. 155, OCTOBER 27, 1987 111

daughter have been preterited (Rollo, p. 158). It was denied

by the trial court in an order dated January 21, 1985 for
the reason that „the grounds for the motion to dismiss are
matters properly to be resolved after a hearing on the
issues in the course of the trial on the merits of the case
(Rollo, p. 32). A subsequent motion for reconsideration was
denied by the trial court on February 15, 1985 (Rollo, p.
109).
For private respondents to have tolerated the probate of
the will and allowed the case to progress when on its face
the will appears to be intrinsically void as petitioner and
his brothers and sisters were instituted as universal heirs
coupled with the obvious fact that one of the private
respondents had been preterited would have been an
exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could
have denied its probate outright or could have passed upon
the intrinsic validity of the testamen-tary provisions before
the extrinsic validity of the will was resolved (Cayetano v.
Leonidas, supra; Nuguid v. Nuguid, supra). The remedies of
certiorari and prohibition were properly availed of by
private respondents.
Thus, this Court ruled that where the grounds for
dismissal are indubitable, the defendants had the right to
resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of
discretion, amounting to lack of jurisdiction, committed by
the trial court in not dismissing the case, (Vda. de Bacang
v. Court of Appeals, supra) and even assuming the
existence of the remedy of appeal, the Court harkens to the
rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal
would not afford speedy and adequate relief. (Maninang v.
Court of Appeals, supra).
PREMISES CONSIDERED, the petition is her eby
DENIED for lack of merit and the questioned decision of
respondent Court of Appeals promulgated on August 30,
1985 and its Resolution dated October 23, 1985 are hereby
AFFIRMED.
SO ORDERED.
Teehankee (C.J.), Yap, Fernan, Narvasa, Gutierrez,

Jr.,
112
Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and

Cortes, JJ., concur.
Melencio-Herrera, J., see separate opinion.
MELENCIO-HERRERA, J., concurring in the result:
I concur in the result on the basic proposition that

preterition in this case was by mistake or inadvertence.
To my mind, an important distinction has to be made as
to whether the omission of a forced heir in the Will of a
testator is by mistake or inadvertence, or voluntary or
intentional If by mistake or inadvertence, there is true
preterition and total intestacy results. The reason for this
is the „inability to determine how the testator would have
distributed his estate if none of the heirs had been omitted
or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).
The requisites of preterition are:
„1. The heir omitted is a forced heir (in the direct line);
„2. The omission is by mistake or thru an oversight;
„3. The omission is complete so that the forced heir
received nothing in the will.‰ (III Padilla, Civil Code
Annotated, 1973 Edition, pp. 224-225)
(Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect

would be a defective disinheritance covered by Article 918
of the Civil Code in which case the institution of heir is not
wholly
void but only insofar as it prejudices the legitime of the
person disinherited. Stated otherwise, the nullity is partial
unlike in true preterition where the nullity is total.
„Preterition is presumed to be only an involuntary omission; that is,

that if the testator had known of the existence of the compulsory
heir at the time of the execution of the will, he would have
instituted such heir. On the other hand, if the testator attempts to
disinherit a compulsory heir, the presumption of the law is that he
wants such heir to receive as little as possible from his estate.‰ (III
Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in-
113
VOL. 155, OCTOBER 27, 1987 113

People vs. Masangkay
advertence in the omission of the adopted daughter, hence,

my concurrence in the result that total intestacy ensued.
Petition denied.
Notes.·Under Article 1056 of the Civil Code of 1899

which governs this case a person during his lifetime may
partition his property among his heirs to take effect after
his death and this deed is neither a will nor a donation.
(Mang-oy vs. Court of Appeals, 144 SCRA 33.)
Property donated inter-vivos is subject to collation after
donorÊs death, whether the donation was made to a
compulsory or a stranger. (Vda. de Tupas vs. RTC of Negros
Occidental, 144 SCRA 622.)
··o0o··

VOL. 4, FEBRUARY 28, 1962 491
Crisologo vs. Singson
No. L-13876. February 28, 1962.
CONSOLACION FLORENTINO DE CRISOLOGO, ET

AL., plaintiffs-appellees, vs. DR. MANUEL SINGSON,
defendant-appellant.
Wills and testaments; Designation of heirs; Purpose of

fideicommissary substitution.·It is of the essence of a
fideicommissary substitution that an obligation be clearly imposed
492
upon the first heir to preserve and transmit to another the whole or
part of the estate bequeathed to him, upon his death or upon the
happening of a particular event.

Ilocos Sur. Antonio, J.
Felix V. Vergara for defendant-appellant.
B. Martinez for plaintiffs-appellees.
DIZON, J,:
Action for partition commenced by the spouses Consolacion

Florentino and Francisco Crisologo against Manuel
Singson in connection with a residential lot located at
Plaridel St., Vigan, Ilocos Sur, with an area of
approximately 193 square meters, and the improvements
existing thereon, covered by Tax No. 10765-C. Their
complaint alleged that Singson owned one-half pro-indiviso
of said property and that Consolacion Florentino owned the
other half by virtue of the provisions of the duly probated
last will of Dña. Leona Singson, the original owner, and the
project of partition submitted to, and approved by the
Court of First Instance of Ilocos Sur in special Proceeding
No. 453; that plaintiffs had made demands for the partition
of said property, but defendant refused to accede thereto,
thus compelling them to bring action.
Defendant's defense was that Consolacion Florentino
was a mere usufructuary of, and not owner of one-half pro-
indiviso of the property in question, and that, therefore, she
was not entitled to demand partition thereof.
After trial upon the issue thus posed, the lower court
rendered judgment as follows:
'1. Declaring that the plaintiff is a co-owner pro-

indiviso with the defendant of the house and lot
described in the complaint to the extent of each of
an undivided 1/2 portion thereof;
"2. Ordering the aforesaid co-owners to execute an
agreement of partition of the said property within
30 days from receipt of this judgment unless it be
shown that the division thereof may render it
unserviceable, in which case the provisions of Art.
498 of the New Civil Code may be applied;
"3. That in the event the said parties shall fail to do so,
this Court will appoint the corresponding
commissioners to make the partition in accordance
with law; and
"4. Without special pronouncement as to costs."
493
VOL. 4, FEBRUARY 28, 1962 493

From the above judgment, defendant Singson appealed.

It is admitted that Dña. Leona Singson, who died single
on January 13, 1948, was the owner of the property in
question at the time of her death. On July 31, 1951 she
executed her last will which was admitted to probate in
Special Proceeding No. 453 of the lower court whose
decision was affirmed by the Court of Appeals in G.R. No.
3605-R. At the time of the execution of the will, her nearest
living relatives were her brothers Evaristo, Manuel and
Dionisio Singson, her nieces Rosario, Emilia and Trinidad,
and her grandniece Consolacion, all surnamed Florentino.
Clause IX of her last will reads as follows:
"NOVENO.·Ordeno que se de a mi nieta por parte de mi hermana

mia y que al mismo tiempo vive en mi casa, y, por tanto, bajo mi
proteccion, y es la CONSOLACION FLORENTINO:·
"(A). La mitad de mi casa de materiales fuertes con techo de hierro

galvanizado, incluyendo la mitad de su solar, ubicado en la Poblacion de
Vigan, Ilocos Sur, Calle Plaridel, actualmente arrendada por los
hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si
falleciere antes o despues que yo mi citada nieta, esta propiedad se dara
por partes iguales entre mis tres hermanos Evaristo, Manuel y Dionisio,
o a sus herederos forzosos en el caso de que alguno de ellas muriere
antes, x x x (Exhibit F.)"
The issue to be decided is whether the testamentary

disposition above-quoted provided for what is called
sustitucion vulgar or for a sustitucion fideicomisaria. This
issue is, we believe, controlled by the pertinent provisions
of the Civil Code in force in the Philippines prior to the
effectivity of the New Civil Code, in view of the fact that
the testatrix died on January 13, 1948. They are the
following:
"Art. 774. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs
should die before him, or should not wish or should be unable to
accept the inheritance.
"A simple substitution, without a statement of the cases to which
it is to apply, shall include the three mentioned in the next
preceeding paragraph, unless the testator has otherwise provided:"
494

"Art. 781. Fidei-commissary substitutions by virtue of which the

heir is charged to preserve and transmit to a third person the whole
or part of the inheritance shall be valid and effective, provided they
do not go beyond the second degree, or that they are made in favor
of persons living at the time of the death of the testator."
"Art. 785. The following shall be inoperative:
1. Fiduciary substitutions not made expressly, either by giving
them this name or by imposing upon the fiduciary the absolute
obligation of delivering the property to a second heir." x x x.
In accordance with the first legal provision quoted above,

the testator may not only designate the heirs who will
succeeed him upon his death, but also provide for
substitutes in the event that said heirs do not accept or are
in no position to accept the inheritance or legacies, or die
ahead of him.
The testator may also bequeath his properties to a
particular person with the obligation, on the part of the
latter, to deliver the same to another person, totally or
partially, upon the occurrence of a particular event (6
Manresa, p. 1112).
It is clear that the particular testamentary clause under
consideration provides for a substitution of the heir named
therein in this manner: that upon the death of Consolacion
Florentino·whether this occurs before or after that of the
testatrix·the property bequeathed to her shall be
delivered ("se dara") or shall belong in equal parts to the
testatrix's three brothers, Evaristo, Manuel and Dionisio,
or their forced heirs, should anyone of them die ahead of
Consolacion Florentino. If this clause created what is
known as sustitucion vulgar, the necessary result would be
that Consolacion Florentino, upon the death of the
testatrix, became the owner of one undivided half of the
property, but if it provided for a sustitution fideicomisaria,
she would have acquired nothing more than usufructuary
rights over the same half. In the former case, she would
undoubtedly be entitled to partition, but not in the latter.
As Manresa says, if the fiduciary did not acquire full
ownership of the property bequeathed by will, but mere
usufructuary rights thereon until the time came for him to
deliver said prop-
495
VOL. 4, FEBRUARY 28, 1962 495

erty to the fideicomisario, it is obvious that the nude

ownership over the property, upon the death of the
testatrix, passed to and was acquired by another person,
and the person cannot be other than the fideicomisario (6
Manresa, p. 145).
It seems to be of the essence of a fideicommissary
substitution that an obligation be clearly imposed upon the
first heir to preserve and transmit to another the whole or
part of the estate bequeathed to him, upon his death or
upon the happening of a particular event. For this reason,
Art. 785 of the old Civil Code provides that a
fideicommissary substitution shall have no effect unless it
is made expressly (de una manera expresa") either by
giving it such name, or by imposing upon the first heir the
absolute obligation ("obligacion terminante") to deliver the
inheritance to a substitute or second heir. In this
connection Manresa says:
"Para que la sustitucion sea fideicomisaria, es preciso segun el art.

781, que se ordeno to encargue al primer heredero cuando sea tal,
que conserve y, transmita a una tercera pesona to entidad el todo a
parte de la herencia. O. lo que es lo mismo, la sustitucion
fideicomisaria, como declaran las resoluciones de 25 de Junio de
1895, 10 de Febrero de 1899 y 19 de Julio de 1909, exige tres
requisitos:
"1.o Un primer heredero llamado al goce de los bienes

preferentemente.
"2.o Obligacion claramente impuesta al mismo de conservar y,
transmitir a un tercero el todo to parte del caudal.
"3.o Un segundo heredero.
"A estos requisitos añade la sentencia de 18 de Noviembre de

1918, otro mas, el del que el fideicomisario tenga derecho a los
bienes de la herencia desde el momento de la muerte del testador,
puesto que ha de suceder a este y , no al fiduciar
"Por tanto, cuando el causante se limita a instituir dos
herederos, y por fallecimiento de ambos to de cualquiera de ellos,
asigna la parte del fallecido o fallecidos, a los herederos legitimos o
a otras personas, solo existe una sustitucion vulgar, porque falta el
requisito de haberse impuesto a los primeros herederos la obligacion
de conservar y , transmitir los bienes, y el articulo 789, en su
parrafo primero, evige que la sustitucion sea expresa, ya dandole el
testador el nombre de sustitucion fideicomisaria, ya imponiendo al
sustituido la obligacion terminante de conservar y transmitir los
bienes a un segundo heredero."
496

Parsons Hardware Co., Inc. vs. Medina
A careful perusal of the testamentary clause under

consideration shows that the substitution of heirs provided
for therein is not expressly made of the o f ideicommissa
kind, nor does it contain a clear statement to the effect that
appellee, during her lifetime, shall only enjoy usufructuary
rights over the property bequeathed to her, naked
ownership thereof being vested in the brothers of the
testatrix. As already stated, it merely provides that upon
appellee's death·whether this happens before or after that
of the testatrix·her share shall belong to the brothers of
the testatrix.
In the light of the foregoing, we believe, and so hold,
that the last will of the deceased Dña. Leona Singson,
established a mere sustitucion vulgar, the substitution
Consolacion Florentino by the brothers of the testatrix to
be effective or to take place upon the death of the former,
whether it happens before or after that of the testatrix.
IN VIEW OF THE FOREGOING, the appealed
judgment is affirmed, with costs.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador,

Concepcion, Reyes, J.B.L., Barrera, Paredes and De Leon,
JJ., concur.
Judgment affirmed.
______________

[No. 31703. February 13, 1930]
CARMEN G. DE PEREZ, trustee of the estate of Ana

Maria Alcantara, plaintiff and appellee, vs. MARIANO
GARCHITORENA, and JOSE CASIMIRO, Sheriff of the
Court of First Instance of Manila, defendants and
appellants.
1. WILLS; INSTITUTION OF HEIRS; FIDEICOMMISSARY

HEIR.·The institution of heirs made in the will in question
is in the nature of a fideicommissum: there is an heiress
primarily called to enjoy the estate; an obligation clearly
imposed upon her to preserve and transmit the whole of the
estate to certain third persons; and there are secondary
heirs.
2. ID.; ID.; ID.; DISTINCTION BETWEEN

FIDEICOMMISSUM AND TRUST.·The heir instituted, or
fideicommissioner, as article 783 of the Civil Code has it, is
entitled to the enjoyment of the estate. The fideicommissum
thus arising from a fideicommissary substitution, which is
of Roman origin, is not exactly equivalent to, and should not
be confused with, the English "trust."

Manila. Concepcion, J.
The facts are stated in the opinion of the court.
L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon for
appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the plaintiff's
name with the association known as La Urbana in Manila,
as the final payment of the liquidated credit of Ana Maria
432
432 PHILIPPINE REPORTS ANNOTATED

G. de Perez vs. Garchitorena and Casimiro
Alcantara, deceased, whose heiress is said plaintiff, against

Andres Garchitorena, also deceased, represented by his
son, the defendant Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for
P7,872.23 against Joaquin Perez Alcantara, husband of the
plaintiff, Carmen G. de Perez, the sheriff pursuant to the
writ of execution issued in said judgment, levied an
attachment on said amount deposited with La Urbana.
The plaintiff, alleging that said deposit belongs to the
fideicommissary heirs of the decedent Ana Maria
Alcantara, secured a preliminary injunction restraining the
execution of said judgment on the sum so attached. The
defendants contend that the plaintiff is the decedent's
universal heiress, and pray for the dissolution of the
injunction.
The court below held that said La Urbana deposit
belongs to the plaintiff's children as fideicommissary heirs
of Ana Maria Alcantara, and granted a final writ of
injunction.
The defendants insist in their contentions, and, in their
appeal from the decision of the trial court, assign the
following errors:
"1. The lower court erred in holding that a trust was

created by the will of Doña Ana Maria Alcantara.
"2. The lower court erred in concluding and declaring
that the amount of P21,428.58 deposited -with La
Urbana is the property of the children of the
plaintiff as 'herederos fidei-comisarios.'
"3. The lower court erred in making the injunction
permanent and condemning defendant to pay the
costs."
The question here raised is confined to the scope and

meaning of the institution of heirs made in the will of the
late Ana Maria Alcantara already admitted to probate, and
whose legal force and effect is not in dispute.
The clauses of said will relevant to the points in dispute,
between the parties are the ninth, tenth, and eleventh,
quoted below:
"Ninth. Being single and without any forced heir, to show my

gratitude to my niece-in-law, Carmen Garchito-
433
VOL. 54, FEBRUARY 13, 1930 433

rena, of age, married to my nephew, Joaquin Perez Alcantara, and

living in this same house with me, I institute her as my sole and
universal heiress to the remainder of my estate after the payment
of my debts and legacies, so that upon my death and after probate
of this will, and after the report of the committee on claims and
appraisal has been rendered and approved, she will receive from my
executrix the properties composing my hereditary estate, that she
may enjoy them with God's blessing and my own.
"Tenth. Should my heiress Carmen Garchitorena die, I order that
my whole estate shall pass unimpaired to her surviving children;
and should any of these die, his share shall serve to increase the
portions of his surviving brothers (and sisters) by accretion, in such
wise that my estate shall never pass out of the hands of my heiress
or her children in so far as it is legally possible.
"Eleventh. Should my aforesaid heiress, Carmen Garchitorena,
die after me while her children are still in their minority, I order
that my estate be administered by my executrix, Mrs. Josefa
Laplana, and in her default, by Attorney Ramon Salinas and in his
default, by his son Ramon Salinas; but the direction herein given
must not be considered as an indication of lack of confidence in my
nephew Joaquin Perez Alcantara, whom I relieve from the duties of
administering my estate, because I recognize that his character is
not adapted to management and administration."
The appellants contend that in these clauses the testatrix

has ordered a simple substitution, while the appellee
contends that it is a fideicommissary substitution.
This will certainly provides for a substitution of heirs.
and of the three cases that might give rise to a simple
substitution (art. 774, Civil Code), only the death of the
instituted heiress before the testatrix would in the instant
case give place to such substitution, inasmuch as nothing is
said of the waiver of inheritance, or incapacity to accept
434

it. As a matter of fact, however, clause XI provides for the

administration of the estate in case the heiress instituted
should die after the testatrix and while the substitute heirs
are still under age. And it is evident that, considering the
nature of simple substitution by the heir's death before the
testator, and the fact that by clause XI in connection with
clause X, the substitution is ordered where the heiress
instituted dies after the testatrix, this cannot be a case of
simple substitution.
The existence of a substitution in the will is not and
cannot be denied, and since it cannot be a simple
substitution in the light of the considerations above stated,
let us now see whether the instant case is a
fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein
her sole and universal heiress, and provides that upon her
death (the testatrix's) and after probate of the will and
approval of the report of the committee on claims and
appraisal, said heiress shall receive and enjoy the whole
hereditary estate. Although this clause provides nothing
explicit about substitution, it does not contain anything in
conflict with the idea of fideicommissary substitution. The
fact that the plaintiff was instituted the sole and universal
heiress does not prevent her children from receiving, upon
her death and in conformity with the express desire of the
testatrix, the latter's hereditary estate, as provided in the
following (above quoted) clauses. which cannot be
disregarded if we are to give a correct interpretation of the
will. The word sole does not necessarily exclude the idea of
substitute heirs; and taking these three clauses together,
such word means that the plaintiff is the sole heiress
instituted in the first instance.
The disposition contained in clause IX, that said heiress
shall receive and enjoy the estate, is not incompatible with
a fideicommissary substitution (it certainly is incompatible
with the idea of simple substitution, where the heiress
instituted does not receive the inheritance). In fact the
435
VOL. 54, FEBRUARY 13, 1930 435

enjoyment of the inheritance is in conformity with the idea

of fideicommissary substitution, by virtue of which the heir
instituted receives the inheritance and enjoys it, although
at the same time he preserves it in order to pass it on to the
second heir. On this point the illustrious Manresa, in his
Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:
"Or, what amounts to the same thing, the fideicommissary

substitution, as held in the Resolutions of June 25, 1895, February
10, 1899, and July 19, 1909, requires three things:
"1. A first heir called primarily to the enjoyment of the estate.

"2. An obligation clearly imposed upon him to preserve and
transmit to a third person the whole or a part of the estate.
"3. A second heir.
"To these requisites, the decision of November 18, 1918 adds

another, namely that the fideicommissarius be entitled to the estate
f rom the time the testator dies, since he is to inherit from the latter
and not from the fiduciary." (Italics ours.)
It appears from this quotation that the heir instituted or

the fiduciary, as referred to in article 783 of the Civil Code,
is entitled to enjoy the inheritance. And it might here be
observed, as a timely remark, that the fideicommissum
arising from a fideicommissary substitution, which is of
Roman origin, is not exactly equivalent to, nor may it be
confused with, the English "trust."
It should also be noted that said clause IX vests in the
heiress only the right to enjoy but not the right to dispose
of the estate. It says, she may enjoy it, but does not say she
may dispose of it. This is an indication of the usufruct ruct
inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is
true that it does not say whether the death of the heiress
herein referred to is before or after that of the testatrix;
436

but from the whole context it appears that in making the

provisions contained in this clause X, the testatrix had in
mind a fideicommissary substitution, since she limits the
transmission of her estate to the children of the heiress by
this provision, "in such wise that my estate shall never
pass out of the hands of my heiress or her children in so far
as it is legally possible." Here it clearly appears that the
testatrix tried to avoid the possibility that the substitution
might later be legally declared null for transcending the
limits fixed by article 781 of the Civil Code which
prescribes that fideicommissary substitutions shall be valid
"provided they do not go beyond the second degree."
Another clear and outstanding indication of
fideicommissary substitution in clause X is the provision
that the whole estate shall pass unimpaired to the heiress's
children, that is to say the heiress is required to preserve
the whole estate, without diminution, in order to pass it on
in due time to the fideicommissary heirs. This provision
complies with another of the requisites of fideicommissary
substitution according to our quotation f rom Manresa
inserted above.
Lastly, clause XI more clearly indicates the idea of
fideicommissary substitution, when a provision is therein
made in the event the heiress should die after the testatrix.
That is, said clause anticipates the case where the
instituted heiress should die after the testatrix and after
receiving and enjoying the inheritance.
The foregoing leads us to the conclusion that all the
requisites of a fideicommissary substitution, according to
the quotation from Manresa above inserted, are present in
the case of substitution now under consideration, to wit:
1. A first heir primarily called to the enjoyment of the

estate. In this case the plaintiff was instituted an
heiress, called to the enjoyment of the estate,
according to clause IX of the will.
2. An obligation clearly imposed upon the heir to
preserve and transmit to a third person the whole
or a part of
437
VOL. 54, FEBRUARY 13, 1930 437

the estate. Such an obligation is imposed in clause

X which provides that the "whole estate shall pass
unimpaired to her (heiress's) surviving children;"
thus, instead of leaving the heiress at liberty to
dispose of the estate by will, or of leaving the law to
take its course in case she dies intestate, said
clause not only disposes of the estate in f avor of the
heiress instituted, but also provides for the
disposition thereof in case she should die after the
testatrix.
3. A second heir. Such are the children of the heiress
instituted, who are referred to as such second heirs
both in clause X and in clause XI.
Finally, the requisite added by the decision of November

18, 1918, to wit, that the fideicommissarius or second heir
should be entitled to the estate from the time of the
testator's death, which in the instant case, is, rather than a
requisite, a necessary consequence derived from the nature
of the fideicommissary substitution, in which the second
heir does not inherit from the heir first instituted, but from
the testator.
By virtue of this consequence, the inheritance in
question does not belong to the heiress instituted, the
plaintiff herein, as her absolute property, but to her
children, from the moment of the death of the testatrix,
Ana Maria Alcantara.
Therefore, said inheritance, of which the amount
referred to at the beginning, which is on deposit with the
association known as La Urbana in the plaintiff's name, is
a part, does not belong to her nor can it be subject to the
execution of the judgment against Joaquin Perez, who is
not one of the fideicommissary heirs.
The judgment appealed from is affirmed, with costs
against the appellant, Mariano Garchitorena. So ordered.
Johnson, Malcolm, Villamor, Ostrand, Johns, and

Villa-Real, JJ., concur.
STREET, J.:
I reserve my vote.
Judgment affirmed.
438

Kock Wing vs. Philippine Railway Co.

[No. 3891. December 19, 1907.]
ELENA MORENTE, petitioner and appellant, vs. GUMERSINDO
DE LA SANTA, respondent and appellee.
CONSTRUCTION OF WILLS; CONDITIONAL LEGACIES.·A testator may insert

conditional provisions in his will, as prescribed by article 790 of the
Civil Code. Under article 793, a prohibition against another marriage
may also be imposed, in certain cases, upon the widow or widower.
But, in order to make a testamentary provision conditional, such
condition must fairly appear from the language used in the will. It
will not be presumed.

Tayabas. Probate proceedings.
The facts are stated in the opinion of the eourt.
Agoncillo & Ilustre, for appellant.
Agustin Alvares, for appellee.
WILLARD, J.:
The will of Consuelo Morente contains the following
clauses:
"1. I hereby order that all real estate which may belong to me
shall pass to my husband, Gumersindo de la Santa.
"2. That my said husband shall not leave my brothers after my
death, and that he shall not marry anyone; should my said husband
have children by anyone, he shall not
388

MORENTE vs. DE LA SANTA.
convey any portion of the property left by me, except the one-third
part thereof and the two remaining thirds shall be and remain for
my brother Vicente or his children should he have any.
"3. After my death I direct my husband to dwell in the camarin
in which the bakery is located, which is one of the properties
belonging to me."
Her husband, Gumersindo de la Santa, married again

within four months of the death of the testatrix. Elena
Morente, a sister of the deceased, filed a petition in the
proceeding relating to the probate of the will of Consuelo
Morente pending in the Court of First Instance of the
Province of Tayabas in which she alleged the second mar-
riage of Gumersindo de la Santa and asked that the legacy
to him above mentioned be annulled. Objection was made
in the court below by the husband to the procedure followed
by the petitioner. The court below, however, held that the
proceeding was proper and from that holding the husband
did not appeal. From the judgment of the court below, the
petitioner, Elena Morente, appealed.
In its judgment the court denied the petition. It was
said, however, in the decision, as Ave understand it, that
the husband having married, he had the right to the use of
all of the property during his life and that at his death two-
thirds thereof should pass to Vicente, a brother of the tes-
tatrix, and one-third thereof could be disposed of by the
husband. The construction given to the will by the court
below is not accepted by the appellant. She claims that by
the mere act of marriage the husband at once lost all rights
acquired by the will. It is neither alleged nor proven that
any children have been born to the husband since the death
of the testatrix.
Article 790 of the Civil Code provides that testamentary
provisions may be made conditional and article ?93 pro-
vides that a prohibition against another marriage may in
certain cases be validly imposed upon the widow or
widower. But the question in this case is, Did the testatrix
intend to impose a condition upon the absolute gift which is
contained in the first clauses of the will? It is to be
observed that by the second clause she directs that her hus-
389
VOL. 9, DECEMBER 19, 1907 389

MORENTE vs. DE LA SANTA.
band shall not leave her sisters. It is provided in the third

clause that he must continue to live in a certain building. It
is provided in the second clause that he shall not marry
again. To no one of these orders is attached the condition
that if he fails to comply with them he shall lose the legacy
given to him by the first clause of the will. It is nowhere
expressly said that if he does leave the testatrix's sisters, or
does not continue to dwell in the building mentioned in the
will he shall forfeit the property given him in the first
clause; nor is it anywhere expressly said that if he marries
again he shall incur such a loss. But it is expressly pro-
vided that if one event does happen the disposition of the
property contained in the first clause of the will shall be
changed. It is said that if he has children by anyone, two-
thirds of that property shall pass to Vicente, the brother of
the testatrix.
We are bound to construe the will with reference to all
the clauses contained therein, and with reference to such
surrounding circumstances as duly appear in the case, and
after such consideration we can not say that it was the
intention of the testatrix that if her husband married again
he should forfeit the legacy above mentioned. In other
words, there being no express condition attached to that
legacy in reference to the second marriage, we can not say
that any condition can be implied from the context of the
will. In the case of Oliiong Joe-Soy vs. Jaime Vano (8 Phil.
Rep., 119), we held that the legacy contained in the will
therein mentioned was not conditional. It is true that that
case arose under article 797 of the Civil Code, which
perhaps is not strictly applicable to this case, but we think
that it may be argued from what is said in article 797 that,
in order to make a testamentary provision conditional, such
condition must fairly appear from the language used in the
will.
Whether the children mentioned in the second clause of
the Avill are natural children or legitimate children we do
not decide, for no such question is before us, the contin-
gency mentioned in that part of the clause not having
arisen, and we limit ourselves to saying merely that by the
subsequent marriage of the husband he did not forfeit the

MAXILOM vs. TABOTABO.
legacy given to him by the first part of the will. That was
the only question before the court below. The judgment of
that court, denying the petition, is accordingly affirmed,
with the costs of this instance against the appellant. So
ordered.
Arellano, C. J., Torres, Mapa, Johnson, Carson, and

Tracey, JJ., concur.
Judgment affirmed.
_____________

[No. 22595. November 1, 1924]
Testate Estate of Joseph G. Brimo. JUAN MICIANO,

administrator, petitioner and appellee, vs. ANDRE BRIMO,
opponent and appellant.
1. FOREIGN LAWS; PRESUMPTION.·In the absence of

evidence to the contrary foreign laws on a particular subject
are presumed to be the same as those of the Philippines.
(Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
2. POSTPONEMENT OF PROCEEDING; DISCRETION.·It

is discretionary on the part of the court to postpone or not to
postpone a particular proceeding in a case, and when the
person applying for it has already been given ample
opportunity to present the evidence that he wishes to
introduce, the court commits no abuse of discretion in
denying it.
3. SUCCESSIONS; CONDITIONAL LEGACY; CONDITION

CONTRARY TO LAW; NULLITY OF.·If the condition
imposed upon the legatee is that he respect the testator's
order that his property be distributed in accordance with
the laws of the Philippines and not in accordance with the
laws of his nation, said condition is illegal, because,
according to article 10 of the Civil Code, said laws govern
his testamentary disposition, and, being illegal, shall be
considered unwritten, thus making the institution
unconditional.
868

Miciano vs. Brimo
APPEAL from various orders of the Court of First Instance

of Manila. Diaz and Harvey, JJ.
The facts are stated in the opinion of the court.
Ross, Lawrence & Selph for appellant.
Camus & Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G.

Brimo is in question in this case.
The judicial administrator of this estate filed a scheme
of partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are: (1)
The approval of said scheme of partition; (2) the denial of
his participation in the inheritance; (3) the denial of the
motion for reconsideration of the order approving the
partition; (4) the approval of the purchase made by Pietro
Lanza of the deceased's business and the deed of transfer of
said business; and (5) the declaration that the Turkish laws
are impertinent to this cause, and the failure not to
postpone the approval of the scheme of partition and the
delivery of the deceased's business to Pietro Lanza until
the receipt of the depositions requested in reference to the
Turkish laws.
The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of
Joseph G. Brimo's will which are not in accordance with
the laws of his Turkish nationality, for which reason they
are void as being in violation of article 10 of the Civil Code
which, among other things, provides the following:
"Nevertheless, legal and testamentary successions, in
respect to the order of succession as well as to the amount
of the successional rights and the intrinsic validity of their
provisions, shall be regulated by the national law of the
person whose succession is in question, whatever may be
the nature of the property or the country in which it may
be situated."
869
VOL. 50, NOVEMBER 1, 1924 869

Miciano vs. Brimo
But the fact is that the oppositor did not prove that said
testamentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any evidence
showing what the Turkish laws are on the matter, and in
the absence of evidence on such laws, they are presumed to
be the same as those of the Philippines. (Lim and Lim vs.
Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the
Turkish laws are. He, himself, acknowledges it when he
desires to be given an opportunity to present evidence on
this point; so much so that he assigns as an error of the
court in not having deferred the approval of the scheme of
partition until the receipt of certain testimony requested
regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to
prove such laws does not constitute an error, It is
discretionary with the trial court. and, taking into
consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no
abuse of discretion on the part of the court in this
particular.
There is, therefore, no evidence in the record that the
national law of the testator Joseph G. Brimo was violated
in the testamentary dispositions in question which, not
being contrary to our laws in force, must be complied with
Therefore, the approval of the scheme of partition in
respect was not erroneous.
In regard to the first assignment of error which deals
with the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as such in
the will, it must be taken into consideration that such
exclusion is based on the last part of the second clause of
the will, which says:
"Second. I likewise desire to state that although, by law,
I am a Turkish citizen, this citizenship having been
conferred upon me by conquest and not by free choice, nor
870

Miciano vs. Brimo
by nationality and, on the other hand, having resided for a

considerable length of time in. the Philippine Islands where
I succeeded in acquiring all of the property that I now
possess, it is my wish that the distribution of my property
and everything in connection with this, my will, be made
and disposed of in accordance with the laws in force in the
Philippine Islands, requesting all of my relatives to respect
this wish, otherwise, I annul and cancel beforehand
whatever disposition found in this will favorable to the
person or persons who fail to comply with this request."
The institution of legatees in this will is conditional, and
the condition is that the instituted legatees must respect
the testator's will to distribute his property, not in
accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid,
any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has not
respected the will of the testator, as expressed, is prevented
from receiving his legacy.
The fact is, however, that the said condition is void,
being contrary to law, for article 792 of the Civil Code
provides the following:
"Impossible conditions and those contrary to law or good
morals shall be considered as not imposed and shall not
prejudice the heir or legatee in any manner whatsoever,
even should the testator otherwise provide."
And said condition is contrary to law because it
expressly ignores the testator's national law when,
according to article 10 of the Civil Code above quoted, such
national law of the testator is the one to govern his
testamentary dispositions.
Said condition then, in the light of the legal provisions
above cited, is considered unwritten, and the institution of
legatees in said will is unconditional and consequently
valid and effective even as to the herein oppositor.
871
VOL. 50, NOVEMBER 4, 1924 871

Gomez vs. North Negros Sugar Co.
It results from all this that the second clause of the will
regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void, being
contrary to law.
All of the remaining clauses of said will with all their
dispositions and requests are perfectly valid and effective it
not appearing that said clauses are contrary to the
testator's national laws.
Therefore, the orders appealed from are modified and it
is directed that the distribution of this estate be made in
such a manner as to include the herein appellant Andre
Brimo as one of the legatees, and the scheme of partition
submitted by the judicial administrator is approved in all
other respects, without any pronouncement as to costs. So
ordered.
Street, Malcolm, Avanceña, Villamor, and Ostrand, JJ.,

concur.
Johnson, J., dissents.
Orders modified.
_______________

Bellis vs. Bellis
No. L-23678. June 6, 1967.
TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK & TRUST COMPANY, executor. MARIA
CRISTINA BELLIS and MIRIAM PALMA BELLIS,
oppositors-appellants, vs. EDWARD A. BELLIS, ET AL.,
heirs-appellees.
Wills; Succession; Conflict of laws; Renvoi doctrine.·The

doctrine of renvoi is usually pertinent where the decedent is a
national of one country and is domiciled in another. It does not
apply to a case where the decedent was a citizen of Texas and was
domiciled therein at the time of his death. So that, even assuming
that Texas has a conflicts rule providing that the domiciliary law
should govern successional rights, the same would not result in a
reference back (renvoi) to Philippine law, but it would still refer to
Texas law. Nonetheless, if Texas has a conflicts rule, adopting the
rule of lex rei sitae, which calls for the application of the law of the
place where the properties are situated, renvoi would arise, where
the properties involved are found in the Philippines.
Same; Foreign laws.·In the absence of proof as to the conflicts
rule of Texas, it would be presumed to be the same as our local
conflicts rule.
Same; Applicability of national law to succession; Capacity to
succeed·The decedent's national law governs the order of
succession, the amount of successional rights, the intrinsic validity
of the provisions of the will and capacity to succeed.
Same; Third paragraph of article 17 of New Civil Code does not
modify article 16.·The third paragraph of article 17 of the New
Civil Code is not an exception to the second paragraph of article 16.
Precisely, Congress deleted the phrase, "notwithstanding the
provisions of this and the next preceding article," when it
incorporated article 11 of the old Civil Code as article 17, while
reproducing without substantial change the second paragraph of
article 10 of the old Civil Code, as article 16. The legislative intent
must have been to make the second paragraph of article 176 a
specific provision in itself which must be applied in testate and
intestate succession. As a further indication of this legislative
intent, Congress added a new provision, under article 1039, which
decrees that capacity to succeed is governed by the decedent's
national law,
Same; Legitimes; Statutes; Special and general provisions.
·Whatever public policy and good customs may be involved in our
system of legitimes, Congres has not intended to extend the same to
the succession of foreign nationals. It has specifically chosen the
decedent's national law to govern, inter alia,
359
VOL. 20, JUNE 6, 1967 359
Bellis vs. Bellis
the amount of successional rights. Specific provisions must prevail

over general ones.
Same; Testamentary provision that successional right to
decedent's estate would be governed by law other than his national
law is void.·A provision in a foreigner's will that his properties
should be distributed in accordance with Philippine law and not in
accordance with his national law is void, being contrary to article 16
of the New Civil Code.
Same; System of legitimes does not apply to estate of a citizen of
Texas.·Where the decedent was a citizen of Texas and under Texas
laws there are no forced heirs, the system of legitimes in Philippine
law cannot be applied to the succession to the decedent's testate
because the intrinsic validity of the provisions of the decedent's will
and the amount of successional rights are to be determined under
Texas law.

Manila.

Vicente R. Macasaet and Jose D. Villena for
oppositorsappellants.
Paredes, Poblador, Cruz & Nazareno for heirs-appellees
E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust
Company.
Ozaeta, Gibbs & Ozaeta for appellee A. B. Allsman.
BENGZON. J.P., J,:
This is a direct appeal to Us, upon a question purely of law,

from an order of the Court of First Instance of Manila
dated April 30, 1964. approving the project of partition f
iled by the executor in 'Civil Case No. 37089 therein.
The. facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State
of Texas and of the United States." By his first wife, Mary
E. Mallen, whom he divorced, he had five legitimate
children: Edward A. Bellis, George Bellis (who pre-
deceased him in infancy), Henry A. Bellis, Alexander Bellis
and Anna Bellis Allsman; by his second wife, Violet
Kennedy, who survived him, he had three legitimate
children: Edwin G. Bellis. Walter S. Bellis and Dorothy
Bellis; and finally, he had three illegitimate children: Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
360

Bellis vs. Bellis
On August 5, 1952, Amos G. Bellis executed a will in the

Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid f or,
his distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first
wife, Mary E. Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis
and Miriam Palma Bellis, or P40,000.00 each and (c) after
the foregoing two items have been satisfied, the remainder
shall go to his seven surviving children by his first and
second wives, namely: Edward A. Bellis, Henry A. Bellis,
Alexander Bellis, and Anna Bellis Allsman, Edwin G.
Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal
shares.
Subsequently, or on July 8, 1958, Amos G. Bellis died, a
resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of
Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of
the will, paid all the bequests therein including the amount
of $240,000.00 in the form of shares of stock to Mary E.
Mallen and to the three (3) illegitimate children, Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis,
various amounts totalling P40,000.00 each in satisfaction
of their respective legacies, or a total of P120,000.00, which
it released from time to time accordingly as the lower court
approved and allowed the various motions or petitions filed
by the latter three requesting partial advances on account
of their respective legacies.
On January 8, 1964, preparatory to closing its
administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and
Project of Partition" wherein it reported, inter alia, the
satisfaction of the legacy of Mary E. Mallen by the delivery
to her of shares of stock amounting to $240,000.00, and the
legacies of Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis in the amount of P40,000.00 each or a
total of ?120,000.00. In the project of partition, the executor
·pursuant to the "Twelfth" clause of the testator's Last
Will and Testament·divided the residuary estate into
seven equal portions for the benefit of the testator's seven
legitimate children by his first and second marriages.
361
VOL. 20, JUNE 6, 1967 361

Bellis vs. Bellis
On January 17, 1964, Maria Cristina Bellis and Miriam

Palma Bellis filed their respective oppositions to the project
of partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore,
compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice
to him, proof of service of which is evidenced by the registry
1
receipt submitted on April 27, 1964 by the executor. After
the parties filed their respective memoranda and other
pertinent pleadings, the lower court, on April 30, 1964,
issued an order overruling the oppositions and approving
the executor's final account, report and administration and
project of partition. Relying upon Art. 16 of the Civil Code,
it applied the national law of the decedent, which in this
case is Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been
denied by the lower court on June 11, 1964,
oppositorsappellants appealed to this Court to raise the
issue of which law must apply·Texas law or Philippine
law.
In this regard, the parties do not submit the case on, nor
even discuss, the doctrine of renvoi, applied by this Court
in Aznar v. Christensen Garcia, L-16749, January 31, 1963.
Said doctrine is usually pertinent where the decedent is a
national of one country, and a domicile of another. In the
present case, it is not disputed that the decedent was both
a national
2
of Texas and a domicile thereof at the time of his
death. So that even assuming Texas has a conflict of law
rule providing that the domiciliary system (law of the
domicile) should govern, the same would not result in a
reference back (renvoi) to Philippine law, but would still
refer to Texas law. Nonetheless, if Texas has a conflicts rule
adopting the situs theory (lex
________________
1 He later filed a motion praying that as a legal heir he be included in

this case as one of the oppositors-appellants; to file or adopt the
opposition of his sisters to the project of partition; to submit his brief
after paying his proportionate share in the expenses incurred in the
printing of the record on appeal; or to allow him to adopt the briefs filed
by his sisters·but this Court resolved to deny the motion.
2 San Antonio, Texas was his legal residence.
362

Bellis vs. Bellis
where the properties are situated, renvoi would arise, since

the properties here involved are found in the Philippines.
In the absence, however, of proof as to the conflict of law
rule 3of Texas, it should not be presumed different from
ours. Appellants' position is therefore not rested on the
doctrine of renvoi. As stated, they never invoked nor even
mentioned it in their arguments. Rather, they argue that
their case falls under the circumstances mentioned in the
third paragraph of Article 17 in relation to Article 16 of the
Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the
order of succession; (b) the amount of successional rights;
(c) the intrinsic validity of the provisions of the will; and (d)
the capacity to succeed. They provide that·
"ART. 16. Real property as well as personal property is subject to
the law of the country where it is situated. "However, intestate and
testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by
the national law of the person whose succession is under
consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found."
"ART. 1039. Capacity to succeed is governed by the law of the
nation of the decedent."
Appellants would however counter that Art. 17. paragraph three,
of the Civil Code, stating that·
"Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and good
customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a
foreign country."
prevails as the exception to Art. 16, par. 2 of the Civil Code

afore-quoted. This is not correct. Precisely, Congress
deleted the phrase, "notwithstanding the provisions of this
and the next preceding article" when they incorporated Art.
11 of the old Civil Code as Art. 17 of the new Civil Code,
_______________
3 Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95

Phil. 500.
363
VOL. 20, JUNE 6, 1967 363

Bellis vs. Bellis
while reproducing without substantial change the second

paragraph of Art. 10 of the old Civil Code as Art. 16 in the
new. It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which
must be applied in testate and intestate succes-sions. As
further indication of this legislative intent. Congress added
a new provision, under Art. 1039, which decrees that
capacity to succeed is to be governed by the national law of
the decedent.
It is therefore evident that whatever public policy or
good customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically
chosen to leave, inter. alia, the amount of successional
rights, to the decedent's national law. Specific provisions
must prevail over general ones,
Appellants would also point out that the decedent
executed two wills·one to govern his Texas estate and the
other his Philippine estate·arguing from this that he
intended Philippine law to govern his Philippine estate.
Assuming that such was the decedent's intention in
executing a separate Philippine will, it would not alter the
law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the effect that
his properties shall be distributed in accordance with
Philippine law and not with his national law, is illegal and
void. for his national law cannot be ignored in regard to
those matters that Article 10·now Article 16·of the Civil
Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis,
was a citizen of the State of Texas, U.S.A., and that under
the laws of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of
the will and the amount of successional rights are to be
determined under Texas law, the Philippine law on
legitimes cannot be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby
affirmed in toto, with costs against appellants. So ordered.
364

Allied Workers' Association of the Philippines vs. Court of
Industrial Relations
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala,

Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
Judgment affirmed.
Notes.·In Philippine Trust Company vs. Bohanan, 60

O.G. 4615, it was held that the validity of the provisions of
the will of a citizen of Nevada should be governed by his
national law, the law of Nevada. Since the Nevada law
allows a citizen of Nevada to dispose of all his property
according to his will, the testamentary provisions therein,
depriving his wife and children of what should be their
legitimes under Philippine law should be respected and the
project of partition made in accordance with. his will
should be approved,
In Aznar vs. Christensen Garcia, 61 O.G. 7302, it was
held that, where the deceased citizen of California was
domiciled in the Philippines, the validity of the provisions
of his will should be governed by Philippine law, pursuant
to article 946 of the California Civil Code, and not by the
internal law of California.
____________

VOL. 18, SEPTEMBER 22, 1966 47
Santos vs. Buenaventura
No. L-22797. September 22, 1966.
TESTACY OF MAXIMA SANTOS VDA. DE BLAS.

ROSALINA SANTOS (Executrix), petitioner and appellee,
vs. FLORA BLAS DE BUENAVENTURA (Legatee),
oppositor and appellant.
Wills; Probate proceedings; Effect of timely withdrawal of

opposition to the probate of a will which contains a "no contest and
forfeiture" clause.·Where after realizing her mistake in contesting
the will·. a mistake committed in good faith because grounded on
strong doubts·. appellant withdrew her opposition and joined the
appellee in the latter's petition for the probate of the will, appellant
must not now be penalized for rectifying her error. Said act of
withdrawing her opposition before she had rested her case
contributed to the speedy probate of the will. Since the withdrawal
came before she had rested her case, it precluded the defeat of the
probate upon the strength of Flora's (appellant's) evidence. Through
said withdrawal, Flora conformed to the testatrix's wish that her
dispositions of her properties under the will be carried out. It
follows that, taken as a whole, Flora's actuations served rather than
violated the testatrix's intention. She did not therefore violate the
"no-contest and forfeiture" clause of the will.
Resolution amending decision:
Settlement of estate of deceased persons; Legatee may recover

fruits and income of property included in a devise of specific thing
although not expressly sought in petition.·Although in her petition
for delivery of a specific legacy, appellant did not expressly seek
recovery of the fruits or rents of the property given to her in devise,
she should receive the said fruits or rents. Article 948 of the New
Civil Code provides that a devise of a specific thing includes its
fruits and income accruing after the testator's death. And Article
951 of the same Code provides that these fruits and income shall be
delivered with the thing devised. Furthermore, fruits or rents being,
strictly speaking, accessions (Arts. 441 and 442, New Civil Code),
Article 1166 of the Code, which provides that the "obligation 16 give
a determinate thing includes that of deliv-
48
ering all its accessions and accessories, even though they may not
have been mentioned," applies.
Same; Order to deliver legacy or devise is necessary before there
can be default or before interest on fruits can be collected.·Interest
does not run, unless stipulated, where there is yet no delay (Articles
1169, 2209, Civil Code). In settlement proceedings there is no delay
on the part of the administratrix until after the court orders her to
make delivery of the legacy or devise (Ongpin vs. Rivera, 44 Phil.
808). Where the court a quo had not issued such an order, the
appellee has not incurred in delay and is thus not liable for interest.
Same; Assertion or interest adverse to that of the testatrix.
·Appellee is not the proper party to contend that the rulings of this
Court in two final decisions are to the effect that the properties
therein litigated, which allegedly included the property involved in
the instant case, belonged to the testatrix only to the extent of
65.38-2/3%, the rest being owned by her husband. Representing as
she does the testatrix, she cannot assert an interest adverse to that
of the latter, even when those to whom said interest pertains do not
advance it,
Wills; Probate is conclusive on due execution and authenticity.
·Where a will has already been admitted to probate, its due
execution and authenticity are deemed established for purposes of
settlement proceedings.
Fraud; Factual issue.·Fraud is a factual issue that must be
supported by substantial evidence.
Attorney's fees.·Attorney's fees in this case were granted
under paragraph 11, Article 2208 of the New Civil Code.
APPEAL from two orders of the Court of First Instance.

Vicente J. Francisco for oppositor and appellant.
J.T. de los Santos and R.M. Caluag for petitioner and
appellee.
BENGZON, J.P., J.:
This is an appeal from two orders of the Court of First

Instance of Rizal in Special Proceedings No. 2524 regarding
the testacy of the deceased Maxima Santos Vda. de Blas,
On October 22, 1956, Rosalina Santos filed a petition
with the Court of First Instance of Rizal for the probate of
the last will allegedly executed on September 22, 1956
49

1
by the deceased Maxima Santos Vda. de Blas. The nearest
of kin of the deceased were her brothers and a sister,
nephews and nieces. Rosalinda Santos, petitioner-appellee
herein, is one of said nieces. Among the legatees·. or more
accurately, devisees·mentioned in the will is Flora Blas de
Buenaventura. She is not related by blood to the deceased.
Flora Blas de Buenaventura and Justo Garcia filed on
November 28, 1956 an opposition to the probate of said
will.
Among the grounds for the opposition of Flora Blas and
Justo Garcia were that the will was not executed in
accordance with law; that undue and improper pressure
was exerted upon the testatrix Maxima Santos in the
execution thereof; that the signature of Maxima was
secured through fraud; and that at the time of the
execution of the
2
will Maxima was mentally incapable of
making a will.
After the probate court had received the evidence for
both the petitioner and oppositors, but before the latter
could close their evidence, Flora Blas on November 6, 1957
filed a manifestation that she is withdrawing her
opposition to the probate of the will, quoted as follows:
"Oppositor FLORA BLAS BUENAVENTURA, assisted by her

counsel, unto this Honorable Court respectfully manifests:
"1. That she is hereby withdrawing her opposition to the

petition for the probate of the will of the deceased Maxima
Santos Vda. de Bias;
"2. That being a legatee named in the will, to protect and
preserve her rights and interests, she hereby makes of
record that she is joining the proponent of said will for the
legalization of the same."
Some circumstances leading to said withdrawal may be

noted. Flora had to sell her house for P5,000 to pay for
stenographic notes of this case. Rosalina Santos thereafter
gave a party at the Manila Hotel, aimed at settling the case
amicably. And there Atty. Jose T. de los Santos·appellee's
lawyer·took Flora aside and told her that
_______________
1 She died on October 5, 1956, in Philadelphia, Pennsylvania, U.S.A.,

but was a resident of Malabon, Rizal, at the time of her death.
2 Record on Appeal, pp. 6-9.
50

he learned she had sold her house, that it was a foolish

thing to have done, and that for her sake and her
children's, she should withdraw her opposition and receive
her legacy, so that from its rent she could start a business.
The proceedings continued however as to the opposition
of Justo Garcia.
On December 24, 1957, the court below issued an order
allowing the probate of the will. After the order had become
final and executory, Flora Blas on February 27, 1958, filed
a petition praying for the delivery to her of a fishpond as a
specific devise in her favor under Item No. 3, Clause No. 6,
of the 'will. To this petition, inspite of apparent
understanding, Rosalina Santos filed an opposition
predicated on the ground that said specific devise in favor
of Flora was forfeited in favor of the other residuary heirs,
pursuant to a provision of the will that should any of the
heirs, devisees or legatees contest or oppose its probate, the
latter shall lose his or her right to receive any inheritance
or benefit under it, which shall be forfeited in favor of the
other heirs, devisees and legatees.
The pertinent provisions of the will, translated into
English from Tagalog, reads as follows:
"Fourteenth.·I request all my heirs, devisees and legatees to look

after each other, love and help one another and accept with thanks
what I. have bequeathed to them, and treasure; love and cherish
the same. Any one of them who contests or opposes the probate of
my will or the carrying out of its provisions shall lose any right to
receive any inheritance or benefit under my will, and their
inheritance or share shall pertain to the other heirs who have not
3
opposed."
_______________
3 The Tagalog original is as follows:
"Ika-labing-apat.·Aking itinatagubilin na ang lahat ng aking pinamanahan

ay magtinginang mabuti, magmahalan at magdamayan sa isa't isa, at kanilang
tanggaping may pasasalamat ang sa kanila ay aking ipinamamana, at ito ay
kanilang pag-ingatan, mahalin at pagyamanin. Ang sinuman sa kanila na
tumutol of sumalangsang sa pag-papatibay at pag-bibigay-bisa sa testamento
kong ito ay mawawalan ng anumang karapatang tumanggap ng mana o,
anumang biyaya na aking ipinagkaloob sa testamentong ito, at ang kanilang
mana of kaparti ay mauuwi at mapapagawi sa ibang mga pinamanahan ko na
hindi nagsitutol."
51

This is known in Anglo-American jurisdiction as the

"nocontest and forfeiture" clause of a will.
In its order of April 30, 1958, the court a quo sustained
the theory that the "no-contest and forfeiture" clause of the
will was valid and had the effect of depriving Flora of her
devise in view of her previous opposition to its probate,
which it held not justified under the circumstances.
Accordingly, it denied the motion for delivery of the specific
devise, declaring the same forfeited in favor of the other
residuary heirs. Flora's motion for reconsideration,
superseded by a subsequent amended motion to the same
effect, was denied by the probate court in its order dated
March 7, 1959.
From the foregoing two orders of the trial court, Flora
Blas interposed an appeal to the Court of Appeals. Said
Court, in its resolution of March 25, 1964, certified the
appeal to Us as calling for determination of questions
purely of law.
This appeal raises two issues: (1) Did Flora's actuations,
under the facts and circumstances herein, amount to a
violation of the "no-contest and forfeiture" clause of the
will; and (2) Is the "no-contest and forfeiture" provision of
the will valid?
Anent the second issue, the parties herein, relying
mostly upon Spanish and Anglo-American authorities,
advance conflicting theories. Petitioner-appellee argues
that the "no-contest and forfeiture" clause is a valid, legal
and efficacious testamentary condition. Against this
position, however, the devisee-appellant maintains that
such provision in a will is null and void because it is
contrary to public policy.
It is, however, the first issue that We will now discuss.
For this purpose, the point to determine initially is whether
or not appellant's filing of her opposition was justified
under the particular circumstances of the case; and then,
whether or not a timely withdrawal of said opposition had
precluded violation of the "no-contest and forfeiture
clause",
The court a quo's conclusion is that "there is no justifica-
52

tion for her to oppose or contest the probate of said will"

because "from the evidence given by her and by her
witnesses during the pendency of the probate of the will 'x
'x x, it appears that Flora Blas was aware of the true facts
surrounding the execution of the will and of the mental
state of mind of the said testatrix at the time of the
execution of the will in question, and yet she has charged
her benefactor, the late Maxima Santos; as not enjoying
sound mind when the latter executed her will on
September 22, 1956", and that" "there is no proof to show
that the said Flora Blas was in any manner related by
blood to Maxima Santos Vda. de4 Blas so that her contest of
the said will cannot benefit her."
We disagree with the above conclusion of the lower
court, which is not the 'inference borne out by the facts and
the evidence·. both testimonial and documentary·.
adduced in the case.
Appellant knew about the existence of another will
executed earlier in 1953 in which she stood to receive more
·. much
5
more·. than what is devised to her in the 1956
will. Since 1953 up to the death of the testatrix, appellant
did not fall out of the good graces of the deceased. Their
relationship stayed as close as ever. She did not give any
cause to alienate the deceased's affections. Why, then, the
supposed change of heart? 6
She was addressed as Flora Buendia in the will, yet she
has been using the name Flora Blas as far as she could
remember, apparently with the knowledge and consent of
the deceased, This is supported by her school records from
grade school up to first year pharmacy. Admittedly, it was
the deceased who reared and spent for the education of the
appellant, and therefore she must have known that the
latter was using the family name Blas. If, indeed, the
testatrix was not agreeable to such an arrange-
_______________
4 Order of April 30, 1958; Record on Appeal, pp. 44-45.

5 This the executrix-appellee admits on page 174 of her brief wherein
is stated that "the 'f ishpond given to appellant in the revoked will of
1953 is bigger than that bequeathed to her in the revocatory will of
1956."
6 Probated will dated September 22, 1956.
53
VOL. 18, SEPTEMBER 22,. 1966 53

Santos vs. Buenaventura,
ment, why did she not take steps to correct the same? We
can only conclude that appellant's use of the family name
Blas was with the acquiescence of the testatrix. Why
should she change her-mind after all the years and speak of
appellant in her will as Flora Buendia instead of Flora
Blas?
There was also the coincidence that the three attesting
witnesses to the will, all brothers, are likewise the lawyers
of the executrix (who will receive the biggest single share
under the will) and compadres of the assistant executrix,
while the notary public is also a compadre of one of the
attesting brothers-lawyers.
Furthermore, the nurse who attended to the deceased on
September 22, 1956·the date when the will was
supposedly typed and signed by that testatrix in her room
at the Manila Doctors Hospital·told the appellant that
there was no one inside the testatrix's room when she went
to administer medications to the old woman at the
precisetime when the attesting witnesses and the notary
public testified they were inside the said room. The nurse
admitted this likewise under oath (Tsn., June 10, 1957, p.
23),
But the most important single factor that should
engender reasonable doubt as to the physical and mental
capacity of a person to execute a will, was the condition of
Maxima Blas as gleaned from the records of the case. She
was an old woman more than 86 years old who suffered
from various ailments like rheumatoid arthritis, catarrh of
the eyes, jaundice, cirrhosis of the liver, anemia, edema of
the lower legs and fracture in the vertebrae. From August
1, 1956 to September 23, 1956 she received seven blood
transfusions, as follows: one on August 1; two on
September 22 (the .alleged date of the execution of the
will), with barely three hours intervening; one each on
September 24, 25, 26 and 29, 1956. She was also given
dextrose vinoclysis on September 22, because she could not
take food through the mouth; and on September 23, 1956
she started to bleed by mouth, compelling her doctor to
cancel her trip to the United States scheduled for
September 25, 1956. Several documents executed by her
before the alleged date of execution of the will, were no
longer signed
54

but merely thumbmarked by her,7 whereas the will
appeared to have been signed.
It is difficult for Us to imagine that one situated and
equally faced with the above enumerated facts and
circumstances as the appelant was, should keep her peace.
She had her doubts, and to resolve them she had to conduct
inquiries and investigations. Her findings all the more
strengthened her belief that there was something untoward
about the execution of the will. Thus, in her desire to know
the truth and to protect her rights, she opposed the probate
of the will.
After all, had the contest been continued and the will
held invalid on any of 8the grounds provided by law for the
disallowance of a will, she would have contributed in no
small measure to the cause of the truth which the courts
have been in a position to apply the proper legal provisions
which are for the greater interests of the testatrix·since
all of them are ordained to the idea that the truth of her
last thoughts may be duly assured and guaranteed.
Above all, the factor that preponderates in favor of
appelant is that, after realizing her mistake in contesting
the will·a mistake committed in goos faith because
grounded on strong doubts·she withdrew her apposition
and joined the appellee in the latter's petition for the
probate of the will. She must not now be penalized for
rectifying her error. After all, the intentions of the testatrix
had been fulfilled, her will had been admitted and allowed
probate within a reasonably short period, and the
disposition of her property can now be affected.
It should be pointed out that, contrary to the translation
accorded to Paragraph Fourteen of the will, the testatrix
enjoins not a mere contest or opposition to its pro-
_______________
Two "pagare" documents on September 10, 1956 in favor of Maria

Gervasio Blas (Attached to record of case as Annexes A and B); a codicil
on september 14, 1956 (Tsn, December 24, 1956, pp. 29-30); a letter to
the Rehabilitation Finance Corporation on September 18, 1956 (Annex B
to Motion for Reconsideration).
8 Article 839, New Civil Code; Section 9, Rule 76 of the Rules of court.
55

bate, but a contest or opposition to the probate of the will

and the carrying out of its provisions. This is so because
the questioned clause speaks of "pagpapatibay at pag-
bibigay-bisa"
9
instead of "pagpapatibay o, pag-bibigay-
bisa." This furnishes a significant index into the intention
of the testatrix, namely, that she was.more. concerned in
insuring the carrying out of her testamentary provisions
than in precluding any contest or opposition to it. By the
withdrawal of the contest which appellant brought in good
faith, no prejudice has been done into the intention of the
testatrix. The dispositions of her will can now be safely
carried out.
The most that can be said, if at all, is that Flora Blas'
actuations were also impelled by some desire to gain. But
who among the heirs can assume a posture of innocence
and cast the first stone? None of them can safely claim that
he is not thus similarly motivated.
From the foregoing premises it cannot be said that
Flora's actuations impaired the true intention of the
testatrix in regard to the "no-contest and forfeiture" clause
of the will. Flora's act of withdrawing her opposition before
she had rested her case contributed to the speedy probation
of the will Since the withdrawal came before Flora had
rested her case, it precluded the defeat of the probate upon
the strength of Flora's evidence. Through said withdrawal,
Flora conformed to the testatrix's wish that her
dispositions of her properties under the will be carried out.
It follows that, taken as a whole, Flora's actuations
subserved rather than violated the testatrix's intention.
There is, therefore, no further need to discuss the second
issue on the validity of a "no-contest and forfeiture" clause
in this jurisdiction, since, at any rate, said clause was not
violated in this case.
Wherefore, the appealed orders dated April 30, 1958 and
March 7, 1959 are hereby reversed, and this case is
remanded to the court a quo with the instruction that
appellant's devise under the will be forthwith delivered to
her. No costs. So ordered.
_______________
9 Supra, p. 4.
56

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon,

Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
Regala J., took no part.
Orders reversed.
_____________
RESOLUTION AMENDING DECISION

November 29, 1966
BENGZON, J.P., J.:
Flora Blas de Buenaventura, oppositor-appellant, moved

for reconsideration of this Court's decision herein rendered
on September 22, 1966. Against this motion the
petitionerappellee and executrix, Rosalina Santos, filed an
opposition. And appellant filed a reply thereto.
Appellant-movant contends, first, that she is entitled to
and should be awarded. not only the devised fishpond, but
all the fruits or rents of said property from the death of the
testatrix on October 5, 1956 up to the time said property
will be delivered to her. Appellant, it should be noted; did
not expressly seek recovery of the fruits or rents in her
petition for delivery of specific legacy (devise) filed below.
She started to mention also the fruits or rents in her
amended motion for reconsideration of the court a quo's
denial of said petition. And, thereafter, she has raised the
point in her third assignment of error in the present
appeal.
This notwithstanding, We believe that appellant should
receive the fruits of the property given to her in devise. The
provisions of law regarding devised properties are emphatic
in stating that a devise of a specific thing includes. its
fruits and income accruing after the testator's death,
ordering that these shall be delivered with the thing
devised:
"ART. 948. If the legacy or devise is of a specific and determinate

thing pertaining to the testator, the legatee or devisee acquires the
ownership thereof upon the death of the testator, as well as any
growing fruits, or unborn offspring of animals, or uncollected
income; but not the income which was due and unpaid before the
latter's death.
57

"From the moment of the testator's death, the thing bequeathed

shall be at the risk 01 the legatee or devisee, who shall, therefore,
bear its loss or. deterioration, and shall be benefited by its increase
or improvement, without prejudice to the responsibility of the
executor or administrator."
"ART. 951. The thing bequeathed shall be delivered with all its
accessions and accessories and in the condition in which it may be
upon the death of the testator." (Civil Code)
Furthermore, since fruits or rents are accessions (Arts. 441,

442, Civil Code), strictly speaking, there was really no need
to mention them in the petition or the decision, Article
1166 of the Civil Code applies: "The obligation to give a
determinate thing includes that . of delivering all its
accessions and accessories, even though they may not have
been mentioned." To remove doubts on the matter, however,
We here expressly state that appellant is also entitled to,
and appellee should deliver to her, the fruits or rents of the
devised fishpond accruing after the testatrix's death. The
precise determination of the same, however, should be
threshed out in the court below, before which appellee must
render an accounting.
Appellee, in this regard, would bring up in this pro
ceedings and at this very late stage, some new matters: that
allegedly the testatrix owned only 65.38-2/3% of the
property devised, so that the fruits or rents pertaining to
appellant should likewise be only 65.38-2/3%. And in
support of this, appellee refers to 'f inal decisions of this
Court in two other cases, L-14070, "Maria Gervacio Blas, et
al. v. Rosalina Santos" promulgated March 29, 1961, and L-
19270, "Manuel Gervacio Blas, et al. v. Hon. Cecilia Muñoz-
Palma, et al.," promulgated March 31, 1962. In said
decisions, it is contended that the rulings are to the effect
that the properties therein litigated belonged to Maxima
Santos, the testatrix herein, only to the extent of 65.38-
2/3%, the rest being owned by her husband Simeon Blas,
represented by the plaintiffs therein. The property involved
here is allegedly one of the properties litigated therein. The
foregoing cannot avail appellee herein. She is not the
proper party to raise it, since she represents the testatrix
and not Simeon Blas or his heirs. For her to do
58

so would in effect be to assert an interest adverse to that of

the testatrix, even when those to whom said alleged
interest pertains·Simeon Blas and his heirs·do not
advance it.
As to appellee's reiterated contention that appellant had
violated the no-contest and forfeiture clause of the will, the
same has already been sufficiently discussed and resolved
in our decision. As therein stated, due to appellant's timely
withdrawal of her opposition to the probate of the will, it
was as if there had been no opposition by her at all, as far
as the purpose underlying the aforestated clause is
concerned.
The next argument is on appellant's claim to interest
upon the fruits or rents. The rule is that interest does not
run. unless stipulated, where there is yet no delay (Arts.
1169, 2209, Civil Code). And in settlement proceedings,
there is no delay on the part of the administratrix until
after the court orders her to make delivery of the legacy or
devise (Ongpin v. Rivera, 44 Phil. 808). In this case, the
court a quo not having issued such an order, appellee has
not incurred in delay and is thus not liable for interest.
Appellant-movant also prays for moral and exemplary
damages and would rest this claim upon fraud allegedly
committed on two different occasions: First, in the
preparation of the will; and, second, during the supposed
negotiations for the withdrawal of her opposition
preparatory to the delivery of her devise.
As to the first, appellant would hereby be assailing the
very basis of the right she is asserting as devisee, for if the
will was not a voluntary act of the testatrix as she would
contend, the devise in question would suffer the same
defect. It should be remembered also that the will has
already been admitted to probate, so that its due execution
and authenticity are already deemed established for
purposes of this proceeding;
As to the second alleged occasion of fraud, We have on
record only the parties' allegations and denials, and the
affidavit of the devisee-claimant, Fraud being a serious
charge, it is difficult to see how the same can be sustained
59

General Travel Service, Ltd. vs. David
on so insufficient an evidence. And moreover, this being a

factual Issue, We cannot consider the same, for this appeal
is confined to questions purely of law. Appellant-movant's
prayer for moral and exemplary damages, therefore, is
hereby denied.
As to attorney's fees, however, this Court, considering all
the circumstances,- believes it reasonable and equitable to
award under Article 2208, par. 11, of the Civil Code, P5,000
in appellant's favor. In view of the foregoing, the dispositive
portion of the decision herein promulgated on September
22,1966 is hereby amended to read as follows:
„WHEREFORE, the appealed orders April 30, 1958 and
March 7, 1959 are hereby reversed and this case is
remanded to the court a quo, with the instruction that
appellant's specific devise under the will be forthwith
delivered to her by appellee executrix, with all the fruits or
rents thereof acquired from the death of the testatrix on
October 5, 1956 until its delivery, and for this purpose said
appellee executrix shall render an accounting to the court a
quo. Lastly, attorney's fee of P5,000 is hereby awarded in
appellant's favor against appellee. No costs. So ordered.
Concepcion, C.J. Reyes, J.B.L., Barrera, Dizon,

Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.
Orders reversed.
____________

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754 SUPREME COURT REPORTS ANNOTATED

Austria vs. Reyes

No. L-23079. February 27, 1970.

RUBEN AUSTRIA,CONSUELO AUSTRIA-BENTA

Civil law; Succession; Testamentary succession;

VOL. 31, FEBRUARY 18, 1970 755

PETITION for certiorari to annul the orders of the

The facts are stated in the opinion of the Court.

On July 7, 1956 Basilia Austria vda. de Cruz filed

756 SUPREME COURT REPORTS ANNOTATED

Finally, on November 5, 1959, the present

ter of the genuineness of the adoption of the

758 SUPREME COURT REPORTS ANNOTATED

claim kinship with the decedent by virtue of legal

“One who has no compulsory heirs ‘may dispose of by will

The lower court must have assumed that since the

VOL. 81, FEBRUARY 18, 1970 759

exists proof that the adoptionof the same heirs by

“The statement of a false cause for the institution of an

Coming closer to the center of the controversy, the

“Ang aking mga sapilitang tagapagmana (herederos

“Kung ako ay bawian ng Dios ng buhay, ay aking

The tenor of the language used, the petitioners

760 SUPREME COURT REPORTS ANNOTATED

believing that she was legally bound to bequeath

VOL. 31, FEBRUARY 18, 1970 761

One fact prevails, however, and it is that the

762 SUPREME COURT REPORTS ANNOTATED

her part to give to the respondents more than what

VOL. 31, FEBRUARY 18, 1970 763

rate action brought for that purpose,

Concepcion, C.J., Reyes, J.B.L., Dizon,

Notes.—(a) “Forced Heirs” and their “legitime”.—

5 See Gomez v. Concepcion, 47 Phil. 717; Ramos v. Manalac,

(b) Rights of action.—One who is not a forced heir of

© Copyright 2018 Central Book Supply, Inc. All rights reserved.

No. L-24365. June 30, 1966.

IN THE MATTER OF THE INTESTATE ESTATE OF

Wills; Succession; Rights of compulsory heir; Preterition

VOL. 17, JUNE 30, 1966 591

The facts are stated in the opinion of the Court.

Edward E. Christensen, a citizen of California with

592 SUPREME COURT REPORTS ANNOTATED

proposition that since Helen Garcia had been preterited in

„7. I give, devise, and bequeath unto MARIA HELEN

„12, I hereby give, devise and bequeath, unto my wellbeloved

VOL. 17, JUNE 30, 1966 593

kind or character, and wheresoever situated, of which I may

The trial court ruled, and appellee now maintains, that

„ART 854 The preterition or omission of one, some, or all of the

On the other hand, appellant contends that this is not a

594 SUPREME COURT REPORTS ANNOTATED

fully satisfied.‰ Appellant also suggests that considering

„ART. 918. Disinheritance without a specification of the cause, or

Thus, according to appellant, under both Articles 906 and

„Como dice Goyena, en el caso de pretericion puede presumirse

VOL. 17, JUNE 30, 1966 595

verdadera pretericion.‰ (6 Manresa, 7th Ed., 1951, p. 437.)

On the difference between preterition of a compulsory heir

„La desheredacion, como expresa, es siempre voluntaria; la

Manresa defines preterition as the omission of the heir in

„Se necesita, pues: (a) Que la omision se refiera a un heredero

596 SUPREME COURT REPORTS ANNOTATED