Administration of the estate of Agripino Neri y Chavez.

ELEUTERIO NERI, ET
AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
G.R. No. L-47799. June 13, 1941. Moran, J.
Preterition consist in the omission in the testator’s will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither instituted
as heirs nor are expressly disinherited. (in effect, it voids the institution of heir)

FACTS:
Agripino Neri y Chavez had six children by his first marriage. The children are herein
petitioners namely, Eleuterio, Agripino, Agapito, Getulia, Rosario, and Celerina. Getulia died
eight years prior to Neri’s death and was survived by Getulia’s 7 children.
By his second marriage, with Ignacia Akutin, he had six children namely Gracia,
Godofredo, Violeta Estela Maria, and Emma.
On Agripino Neri’s will, he indicated that his children of the first marriage have no
longer participation in his estate as they had already received their corresponding shares during
his lifetime. He then died on 12 December 1931 and his will was admitted to probate on 21
March 1932.
At the hearing for declaration of heirs, the trial court found(contrary to what the testator
haddeclared in his will) that all his children by first and second marriages intestate heirs of the
deceased without prejudice to o1/2 of the improvements introduced in the properties during the
existence of the last conjugal partnership, which should belong to Ignacia Akutin.
CA affirmed the decision but modified that the will was “valid with respect to the 2/3part
which the testator could freely disposed of. “
ISSUE: whetherthe omission of the children of the first marriage annuls the institution of the
children of the second marriage as sole heirs of the testator (YES)
whether the will may be held valid, at least with respect to one-third of the estate which the
testator may dispose of as legacy and to the other one-third which he may bequeath as
betterment, to said children of the second marriage. (NO)

RULING: The case was of one of voluntary preterition of 4 of the children by first marriage and
of involuntary preterition of the children of Getulia. And is thus governed by Article 814 (now
Art. 854) which reads at that time:
The preterition of one or all of the forced heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall void the
institution of heir; but the legacies and betterments shall be valid, in so far as they are not
inofficious.
Preterition consist in the omission in the testator’s will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, thought mentioned, they are neither instituted
as heirs nor are expressly disinherited.
In the instant case, while the children of the first marriage were mentioned in the will,
they were not accorded any share in the hereditary property, without expressly being
disinherited. The omission of the forced heirs or anyone of them, whether voluntary or
involuntary, is a preterition if the purpose to disinherit is not expressly made or is not at least
manifest.

This is contrary to CA’s finding because it ruled that the testator is in fact disinheriting
the children of first marriage when in fact, the testator only mistakenly believed that the said
children had already received more than their share during his lifetime. Thus, cannot be
interpreted to be as disinheritance.

Effect of Preterition

As enunciated in Art 814(now 854), Preterition shall void the institution of the heir. In
effect, it gives rise to intestate succession. In this case, the testator mistook that the children of
first marriage had already received their share so he excluded them. If not for this mistake, his
intention, as clearly inferred on his will, is to divide his property equally to his children.

With this, the court reversed CA’s decision and affirmed the trial court’s decision witout
prejudice to Ignacia Akutin’s legal usufruct.