G.R. No.
L-47799 June 13, 1941
Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET
AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamiz & Capistrano for petitioners.
Gullas, Leuterio, Tanner & Laput for respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six
children named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by
his second marriage with Ignacia Akutin, five children named Gracia, Godofredo,
Violeta, Estela Maria, and Emma. Getulia, daughter in the first marriage, died on
October 2, 1923, that is, a little less than eight years before the death of said
Agripino Neri y Chavez, and was survived by seven children named Remedios,
Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's
testament, which was admitted to probate on March 21, 1932, he willed that his
children by the first marriage shall have no longer any participation in his estate, as
they had already received their corresponding shares during his lifetime. At the
hearing for the declaration of heirs, the trial court found, contrary to what the
testator had declared in his will, that all his children by the first and second
marriages intestate heirs of the deceased without prejudice to one-half of the
improvements introduced in the properties during the existence of the last
conjugal partnership, which should belong to Ignacia Akutin. The Court of Appeals
affirmed the trial court's decision with the modification that the will was "valid
with respect to the two-thirds part which the testator could freely dispose of. "This
judgment of the Court of Appeals is now sought to be reviewed in this petition
for certiorari.
The decisive question here raised is whether, upon the foregoing facts, the
omission of the children of the first marriage annuls the institution of the children
of the first marriage as sole heirs of the testator, or 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.
The Court of Appeals invoked the provisions of article 851 of the Civil Code, which
read in part as follows:
Disinheritance made without a statement of the cause, or for a cause the
truth of which, if contradicted, is not proven, ... shall annul the institution
of the heir in so far as it prejudices the person disinherited; but the
legacies, betterments, and other testamentary dispositions, in so far as
they do no encroach upon the legitime, shall be valid.
The appellate court thus seemed to have rested its judgment upon the impression
that the testator had intended to disinherit, though ineffectively, the children of
the first marriage. There is nothing in the will that supports this conclusion. True,
the testator expressly denied them any share in his estate; but the denial was
predicated, not upon the desire to disinherit, but upon the belief, mistaken though
it was, that the children by the first marriage had already received more than their
corresponding shares in his lifetime in the form of advancement. Such belief
conclusively negatives all inference as to any intention to disinherit, unless his
statement to that effect is prove to be deliberately fictitious, a fact not found by
the Court of Appeals. The situation contemplated in the above provision is one in
which the purpose to disinherit is clear, but upon a cause not stated or not proved,
a situation which does not obtain in the instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas justa del problema que
hemos hecho notar al comentar el articulo, seria distinguir el caso en que el
heredero omitido viviese al otorgarse el testamento, siendo conocida su
existencia por el testador, de aquel en que, o naciese despues, o se
ignorase su existencia, aplicando en el primer caso la doctrina del articulo
851, y en el segundo la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on mere principles (en el
terreno de los principios) and not on the express provisions of the law. Manresa
himself admits that according to law, "no existe hoy cuestion alguna en esta
materia: la pretericion produce siempre los mismos efectos, ya se refiera a
personas vivas al hacer el testamento o nacidas despues. Este ultimo grupo solo
puede hacer relacion a los descendientes legitimos, siempre que ademas tengan
derecho a legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of voluntary
preterition of four of the children by the first marriage, and of involuntary
preterition of the children by the deceased Getulia, also of the first marriage, and is
thus governed by the provisions of article 814 of the Civil Code, which read in part
as follows:
 The preterition of one or all of the forced heirs in the direct line, whether
living at the time 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 consists 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.(Cf. 6
Manresa, 346.) In the instant case, while the children of the first marriage were
mentioned in the will, they were not accorded any share in the heriditary property,
without expressly being disinherited. It is, therefore, a clear case of preterition as
contended by appellants. 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.

Except as to "legacies and betterments" which "shall be valid in so far as they are
not inofficious" (art. 814 of the Civil Code), preterition avoids the institution of
heirs and gives rise to intestate succession. (Art. 814, Civil Code; Decisions of the
Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In the instant case,
no such legacies or betterments have been made by the testator. "Mejoras" or
betterments must be expressly provided, according to articles 825 and 828 of the
Civil Code, and where no express provision therefor is made in the will, the law
would presume that the testator had no intention to that effect. (Cf. 6 Manresa,
479.) In the will here in question, no express betterment is made in favor of the
children by the second marriage; neither is there any legacy expressly made in their
behalf consisting of the third available for free disposal. The whole inheritance is
accorded the heirs by the second marriage upon the mistaken belief that the heirs
by the first marriage have already received their shares. Were it not for this
mistake, the testator's intention, as may be clearly inferred from his will, would
have been to divide his property equally among all his children.

Judgment of the Court of Appeals is reversed and that of the trial court affirmed,
without prejudice to the widow's legal usufruct, with costs against respondents.
G.R. 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 BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
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 receivea by his deceasea 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:
"This is an action to recover one-half share in the fishpond, located in the
barrio of San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of
Title No. T-13734 of the Land Records of this Province, being the share of
plaintiff's wards as minor heirs of the deceased Salud Barretto, widow of
plaintiff Tirso Reyes, guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their
lifetime they acquired a vast estate, consisting of real properties in Manila,
Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos. 41423, 22443,
8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his
share of these properties in a will Salud Barretto, mother of plaintiff's wards, and
Lucia Milagros Barretto and a small portion as legacies to his two sisters Rosa
Barretto and Felisa Barretto and his nephew anä nieces® The usufruct oæ the
fishponä situateä iî barrio Saî Roque¬ Hagonoy, Bulacan, above-mentioned,
however, was reserved for his widow, Maria Gerardo® Iî the meantime¬ Maria
Gerardo was appointeä administratrix. By virtue thereof, she prepared a project of
partition, which was signed by her in her own behalf and as guardian of the minor
Milagros Barretto. Said project of partition was approved by the Court of First
Instance of Manila on November 22, 1939. The distribution of the estate and the
delivery of the shares of the heirs followed forthwith. As a consequence, Salud
Barretto took immediate possession of her share and secured the cancellation of
the original certificates of title and the issuance of new titles in her own name.
Everything went well since then. Nobody was heard to complain of any irregularity
in the distribution of the said estate until the widow, Maria Gerardo died on March
5, 1948. Upon her death, it was discovered that she had executed two wills, in the
first of which, she instituted Salud and Milagros, both surnamed Barretto, as her
heirs; and, in the second, she revoked the same and left all her properties in favor
of Milagros Barretto alone. Thus, the later will was allowed and the first rejected.
In rejecting the first will presented by Tirso Reyes, as guardian of the children of
Salud Barretto, the lower court held that Salud was not the daughter of the
decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was appealed
to the Supreme Court, which affirmed the same.1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate
heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of
the deceased Bibiano Barretto, which was given in usufruct to his widow Maria
Gerardo. Hence, this action for the recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of
ownership, not only of the fishpond under litigation, but of all the other properties
willed and delivered to Salud Barretto, for being a spurious heir, and not entitled to
any share in the estate of Bibiano Barretto, thereby directly attacking the validity,
not only of the project of partition, but of the decision of the court based thereon
as well.
The defendant contends that the Project of Partition from which Salud acquired
the fishpond in question is void ab initio and Salud Barretto did not acquire any
valid title thereto, and that the court did not acquire any jurisdiction of the person
of the defendant, who was then a minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court
declared the project of partition submitted in the proceedings for the settlement
of the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance
of Manila) to be null and void ab initio (not merely voidable) because the
distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was not a
daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity of the
project of partition was decreed on the basis of Article 1081 of the Civil Code of
1889 (then in force) providing as follows: .
 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 latter's children and successors, all the Properties received by her from
Bibiano's 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 plaintiffs' complaint but
ordered them to return the properties received under the project of partition
previously mentioned as prayed for in defendant Milagros Barretto's counterclaim.
However, it denied defendant's prayer for damages. Hence, this appeal interposed
by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has
been misapplied to the present case by the court below. The reason is obvious:
Salud Barretto admittedly had been instituted heir in the late Bibiano Barretto's
last will and testament together with defendant Milagros; hence, the partition had
between them could not be one such had with a party who was believed 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 (½) 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 father's will a share smaller than
her legitime invalidate the institution of Salud as heir, since there was here
no preterition, or total ommission 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 testator's former marriage.
Appellee contends that the partition in question was void as a compromise on the
civil status of Salud in violation of Article 1814 of the old Civil Code. This view is
erroneous, since a compromise presupposes the settlement of a controversy
through mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil
Code of the Philippines, Art. 2028); and the condition of Salud as daughter of the
testator Bibiano Barretto, while untrue, was at no time disputed during the
settlement of the estate of the testator. There can be no compromise over issues
not in dispute. And while a compromise over civil status is prohibited, the law
nowhere forbids a settlement by the parties over the share that should correspond
to a claimant to the estate.
At any rate, independently of a project of partition which, as its own name implies,
is merely a proposal for distribution of the estate, that the court may accept or
reject, it is the court alone that makes the distribution of the estate and
determines the persons entitled thereto and the parts to which each is entitled
(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 court's 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 court's
decree of distribution, but actually consummated, so much so that the titles in the
name of the deceased were cancelled, and new certificates issued in favor of the
heirs, long before the decree was attacked. Hence, Saminiada vs. Mata does not
apply.
Moreover, the defendant-appellee's argument would be plausible if it were shown
that the sole 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 court's 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. (Emphasis 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 the notice
prescribed by section 630 C.P.C.; and any order that any be entered therein
is binding against all of them." (See also in re Estate of Johnson, 39 Phil.
156.) "A final order of distribution of the estate of a deceased person vests
the title to the land of the estate in the distributees". (Santos vs. Roman
Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why, 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 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 (Am'd Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was a minor when she signed
the partition, and that Maria Gerardo was not her judicially appointed
guardian. The claim is not true. Maria Gerardo signed as guardian of the
minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the
project of partion 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 father's estate.
Defendant-appellee further pleads that as her mother and guardian (Maria
Gerardo) could not have ignored that the distributee Salud was not her child, the
act of said widow in agreeing to the oft-cited partition and distribution was a fraud
on appellees rights and entitles her to relief. In the first place, there is no evidence
that when the estate of Bibiano Barretto was judicially settled and distributed
appellants' predecessor, Salud Lim Boco Barretto to, knew that she was not
Bibiano's 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 placegranting that there was such
fraud, relief therefrom can only be obtained within 4 years from its discovery, and with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by
the record shows that this period had elapsed long ago. TCT No. T-13734 of the Office of the Register of Deeds of Bulacan, and for the
accounting of the fruits thereof, as prayed for in the complaint No costs.
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
father's 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 (Appellee's Brief, p. 27), her action still became extinct in
1950. Clearly, therefore, the action was already barred when in August 31, 1956 she
filed her counterclaim in this case contesting the decree of distribution of Bibiano
Barretto's estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence

that appellant 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 either Article 1081 or 1814 of the, Civil Code
of 1889; (2) that Milagros Barretto's action to contest said partition and decree of
distribution is barred by the statute of limitations; and (3) that her claim that
plaintiff-appellant guardian is a possessor in bad faith and should account for the
fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is
legally untenable. It follows that the plaintiffs' action for partition of the fishpond
described in the complaint should have been given due course.

Wherefore, the decision of the Court of First Instance of Bulacan now under appeal
is reversed and set aside in so far as it orders plaintiff-appellant to reconvey to
appellee Milagros Barretto Datu the properties 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
G.R. No. L-41971 November 29, 1983
ZONIA ANA T. SOLANO, petitioner,
vs.
THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S.
GARCIA, respondents.
Benjamin H. Aquino for petitioner.
Alfredo Kallos for respondents.
MELENCIO HERRERA, J.:ñé+.£ªwph!1
A Petition for Review on certiorari of the Decision of the then Court of Appeals
affirming the judgment rendered by the former Court of First Instance of Albay,
Branch II, in Civil Case No. 3956, an action for Recognition.
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be
illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against
him. In his Answer, SOLANO denied paternity. On February 3, 1970, during the
pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered
substituted for the DECEDENT as the only surviving heir mentioned in his Last Will
and Testament probated on March 10, 1969, or prior to his death, in Special
Proceedings No. 842 of the same Court. ZONIA entered her formal appearance as a
"substitute defendant" on March 4, 1970 claiming additionally that she was the
sole heir of her father, SOLANO, and asking that she be allowed to assume her
duties as executrix of the probated Will with the least interference from the
GARCIAS who were "mere pretenders to be illegitimate children of SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and
Supplemental Cause of Action" impugning the recognition of ZONIA as an
acknowledged natural child with the prayer that she be declared instead, like
them, as an adulterous child of the DECEDENT. ZONIA did not file any responsive
pleading and the case proceeded to trial. The GARCIAS further moved for the
impleading of the SOLANO estate in addition to ZONIA, which was opposed by the
latter, but which the Trial Court granted in its Order dated April 15, 1970. 1
In the hearing of May 13, 1970, the Trial Court specified the legal issues to be
treated in the parties' respective Memoranda as: 1) the question of recognition of
the GARCIAS; 2) the correct status of ZONIA, and 3) the hereditary share of each of
them in view of the probated Will. 2
On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered
judgment the dispositive portion of which decrees: têñ.£îhqwâ£
WHEREFORE, judgment is hereby rendered declaring the plaintiffs
Bienvenido S. Garcia and Emeteria S. Garcia and the defendant
Sonia Ana Tuagnon as the illegitimate children of the late Dr.
Meliton Solano under the class of ADULTEROUS CHILDREN, with
all the rights granted them by law. The institution of Sonia Ana
Solano as sole and universal heir of the said deceased in the will is
hereby declared null and void and the three (3) children shall share
equally the estate or one- third (1/3) each, without prejudice to the
legacy given to Trinidad Tuagnon and the right of any creditors of
the estate. No pronouncement as to costs.
Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in
toto (CA-G.R. No. 49018).
ZONIA seeks a reversal of that affirmance in this petition, which was given due
course.
At the outset, we should state that we are bound by the findings of fact of both
the Trial Court and the Appellate Court, particularly, the finding that the GARCIAS
and ZONIA are, in fact, illegitimate children of the DECEDENT. The oral testimony
and the documentary evidence of record inevitably point to that conclusion, as
may be gleaned from the following background facts: SOLANO, a resident of
Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he met a French
woman, Lilly Gorand, who became his second wife in 1928. The union was short-
lived as she left him in 1929. In the early part of 1930, SOLANO started having
amorous relations with Juana Garcia, out of which affair was born Bienvenido
Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935, Emeteria
Garcia was born (Exhibits "B " & "2"). Their birth certificates and baptismal
certificates mention only the mother's name without the father's name. The facts
establish, however, that SOLANO during his lifetime recognized the GARCIAS as his
children by acts of support and provisions for their education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born
out of this relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is
living. In her Birth Certificate, her status was listed as "illegitimate"; her mother as
Trinidad Tuagnon; her father as "P.N.C. " (Exhibit "V"), or "padre no conocido".
During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on
November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and
Trinidad Tuagnon executed an "Escritura de Reconocimiento de Unit Hija Natural"
(Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the
right to use the name ZONIA Ana Solano y Tuagnon. The document was registered
with the Local Civil Registrar on the same date.
On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento"
(Exhibit "11"), instituting ZONIA as his universal heir to all his personal and real
properties in Camalig, Tabaco and Malinao, all in the province of Albay, except for
five parcels of land in Bantayan, Tabaco, Albay, which were given to Trinidad
Tuagnon in usufruct Upon SOLANO's petition (Exhibit "10"), the Will was duly
probated on March 10, 1969 in Special Proceedings No. 842 of the Court of First
Instance of Albay, Branch II, in a Decision also rendered by Judge Ezequiel S.
Grageda (Exhibit "12").
As above stated, these facts are not in question.
Petitioner maintains, however, that: têñ.£îhqwâ£
I Answer already of record but asserted new rights in her capacity as sole and
The Court of Appeals, as well as the trial Court, acted without
jurisdiction or in excess of jurisdiction in declaring substitute
defendant Zonia Ana Solano, now petitioner, an illegitimate child
of the late Dr. Meliton Solano in an action where private
respondents, as plaintiffs in the Court below, sought recognition
as natural children of Dr. Meliton Solano.
II
The Court of Appeals, as well as the trial Court, acted without
jurisdiction or in excess of jurisdiction in ordering the division of
the estate of Dr. Meliton Solano between the petitioner and
private respondents, when said estate is under the jurisdiction and
control of the probate Court in Special Proceedings No. 842.
III
The Court of Appeals, as well as the trial Court, acted without
jurisdiction or in excess of jurisdiction in declaring nun and void the
institution of heir in the last will and testament of Dr. Meliton
Solano, which was duly probated in special proceedings No. 842 of
the Court of First Instance of Albay, and in concluding that total
intestacy resulted there from. 3
Directly challenged is the jurisdiction of the lower Court, in an action for
recognition: 1) to declare ZONIA as an illegitimate child of SOLANO; 2) to order the
division of the estate in the same action despite the pendency of Special
Proceedings No. 842; and 3) to declare null and void the institution of heir in the
Last Win and Testament of SOLANO, which was duly probated in the same Special
Proceedings No. 842, and concluding that total intestacy resulted.
It is true that the action below was basically one for recognition. However, upon
notice of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the
only surviving heir ... as of as of now" 4 In her "Appearance of Substitute Defendant
Zonia Ana T. Solano ... Sole and Universal Heir", ZONIA specifically prayed that she
be 6 allowed to assume her duties as executrix and administratrix of the probated
will and testament of the late Dr. Meliton Solano, under Special Proceedings No.
842, which is already final and executory, with least interference from the plaintiffs
(GARCIAS) who may be classified for the moment as only pretenders to be
illegitimate children". In other words, ZONIA did not only rely upon SOLANO's
universal heir, "executrix and administratrix, "and challenged the right of the
GARCIAS to recognition. Thus, she was not defending the case as a mere
representative of the deceased but asserted rights and defenses in her own
personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of
ZONIA ... and Supplemental Cause of Action ... "vigorously denying that ZONIA was
SOLANO's sole and universal heir; that ZONIA could not legally be considered as
SOLANO's acknowledged natural child because of a legal impediment; that the
admission to probate of SOLANO's Will was merely conclusive as to its due
execution; that the supposed recognition under a notarial instrument of ZONIA as
an acknowledged natural child was fraudulent and a product of misrepresentation;
that ZONIA's recognition in the Will as an acknowledged natural child is subject to
nullification and that at most ZONIA is, like them, an adulterous child of SOLANO
with Trinidad Tuagnon.
During the trial, the GARCIAS presented evidence to prove their allegations not
only in their main complaint but also in their "Reply to Appearance and
Supplemental Cause of Action". ZONIA presented no objection to the presentation
by the GARCIAS of their oral and documentary evidence and even cross-examined
their witnesses. ZONIA, for her part, presented her own testimonial and
documentary evidence, denied the relationship of the GARCIAS' to SOLANO and
presented the notarial recognition in her favor as an acknowledged natural child by
SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised by the parties in their
own pleadings and pursuant to their respective evidence during the trial, the
litigation was converted into a contest between the GARCIAS and ZONIA precisely
as to their correct status as heirs and their respective rights as such. No error was
committed by either the Trial Court or the Appellate Court, therefore, in resolving
the issue of ZONIA's status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and
void the institution of heir in SOLANO's will; in concluding that total intestacy
resulted therefrom; and distributing the shares of the parties in SOLANO's estate
when said estate was under the jurisdiction and control of the Probate Court in
Special Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar situation is thrust
upon us here. It should be recalled that SOLANO himself instituted the petition for
probate of the Will during his lifetime. That proceeding was not one to settle the
estate of a deceased person that would be deemed terminated only upon the final
distribution of the residue of the hereditary estate. With the Will allowed to
probate, the case would have terminated except that it appears that the parties,
after SOLANO's death, continued to file pleadings therein. Secondly, upon motion
of the GARCIAS, and over the objection of ZONIA, the Trial Court ordered the
impleading of the estate of SOLANO and proceeded on that basis. In effect,
therefore, the two cases were consolidated. The records further disclose that the
action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending
before the same Branch of the Court and before the same presiding Judge. Thirdly,
it is settled that the allowance of a Will is conclusive only as to its due execution.5 A
probate decree is not concerned with the intrinsic validity or legality of the
provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that,
upon the facts, the GARCIAS and ZONIA were in the same category as illegitimate
children; that ZONIA's acknowledgment as a "natural child" in a notarial document
executed by SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous
because at the time of her birth in 1941, SOLANO was still married to Lilly Gorand,
his divorce having been obtained only in 1943, and, therefore, did not have the
legal capacity to contract marriage at the time of ZONIA's conception, 7 that being
compulsory heirs, the GARCIAS were, in fact, pretended from SOLANO's Last' Will
and Testament; and that as a result of said preterition, the institution of ZONIA as
sole heir by SOLANO is null and void pursuant to Article 854 of the Civil
Code. têñ.£îhqwâ£
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. ... 8
As provided in the foregoing provision, the disposition in the Will giving the
usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan,
Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code, 9 and should
be respected in so far as it is not inofficious. 10
So also did the Trial Court have jurisdiction in resolving the issue of the hereditary
shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the
Courts below, holding that the entire Will is void and intestacy ensues, the
pretention of the GARCIAS should annul the institution of ZONIA as heir only
insofar as the legitime of the omitted heirs is impaired. The Will, therefore, is valid
subject to that limitation. 11 It is a plain that the intention of the testator was to
favor ZONIA with certain portions of his property, which, under the law, he had a
right to dispose of by Will, so that the disposition in her favor should be upheld as
to the one-half (1/2) portion of the property that the testator could freely dispose
of. 12 Since the legitime of illegitimate children consists of one half (1/2) of the
hereditary estate, 13 the GARCIAS and ZONIA each have a right to participation
therein in the proportion of one-third (1/3) each. ZONIA's hereditary share will,
therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will
respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate.
As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties
indicated in the Will is valid and should be respected.
The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin,
et al., 15 which held that where the institution of a universal heir is null and void due
to pretention, the Will is a complete nullity and intestate succession ensues, is not
applicable herein because in the Nuguid case, only a one-sentence Will was
involved with no other provision except the institution of the sole and universal
heir; there was no specification of individual property; there were no specific
legacies or bequests. It was upon that factual setting that this Court
declared: têñ.£îhqwâ£
 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." (at p. 459)

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

Lastly, it should be pointed out that the jurisdiction of the Trial Court and the
Appellate Court was never questioned before either Court. ZONIA herself had
gone, without objection, to trial on the issues raised and as defined by the Trial
Court. Neither had ZONIA assigned lack of jurisdiction of the Trial Court as an error
before the Appellate Court. She should now be held estopped to repudiate that
jurisdiction to which she had voluntarily submitted, after she had received an
unfavorable judgment, The leading case of Tijam vs. Sibonghanoy, 16 on this point,
declared: têñ.£îhqwâ£

A party cannot invoke the jurisdiction of a court to secure

affirmative relief against his opponent and after failing to obtain
such relief, repudiate or question the same jurisdiction. The
question whether the court has jurisdiction either of the subject
matter of the action or of the parties is not because the judgment
or order of the court is valid and conclusive as an adjudication but
for the reason that such practice cannot be tolerated obviously for
reasons of public policy. After voluntarily submitting a cause and
encountering an adverse decision on the merits, it is too late for
the loser to question the jurisdiction or power of the court.

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

SO ORDERED.1äwphï1.ñët
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA
A. FERNANDEZ and ROSA DIONGSON, respondents.
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 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents'
(petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent
Regional Trial Court of the Seventh Judicial Region, Branch XIII
(Cebu City), is hereby ordered to dismiss the petition in Special
Proceedings No. 591 ACEB 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 on 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,
docketed as Special Proceedings No. 591 ACEB (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) submi'tted
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
testator's 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
pre-deceased me, all the money properties, lands, houses there in
Bantayan and here in Cebu City which constitute my share shall be
given to 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 ACEB
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 tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion
to dismiss on the following grounds for 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 pretirited. (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 Intermediate
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 respondents' petition
and ordered the trial court to dismiss the petition for the probate of the will of
Nemesio Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present
petition for the review of respondent Court's decision on December 18, 1985
(Rollo, p. 6). Respondents' 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). Respondents' 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 MERIT 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
in violable.
(F) As an instituted heir, petitioner has the legal interest and
standing to file the petition in Sp. Proc. No. 591 ACEB 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
pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devisees and legacies
shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall he effectual, without prejudice to the right of
representation.
Preterition consists 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
(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 has 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.
Pretention annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que) no
hubiese dispuesto en virtual de legado mejora o donacion" Maniesa 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 iii 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.
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of j 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 (DD 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 ACEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof, the testator's
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. Leonides, 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 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 preteriton 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 petitioner's 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 court's
order of dismissal.
In Cayetano v. Leonides, 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 ACEB 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 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 testamentary
provisions before the extrinsic validity of the will was resolved (Cayetano v.
Leonides, supra; Nuquid 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 Court of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby 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.
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO
D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D.
SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the nullification
of the orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial
Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the
ground of preterition, in the consolidated cases, docketed as SP. Proc. No. 98-
90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the Intestate
Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of
the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D.
Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of
the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98–
90870 of the RTC, and praying for the appointment of private respondent Elisa D.
Seangio–Santos as special administrator and guardian ad litem of petitioner Dy
Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that: 1) Dy Yieng is still very healthy and in full command
of her faculties; 2) the deceased Segundo executed a general power of attorney in
favor of Virginia giving her the power to manage and exercise control and
supervision over his business in the Philippines; 3) Virginia is the most competent
and qualified to serve as the administrator of the estate of Segundo because she is
a certified public accountant; and, 4) Segundo left a holographic will, dated
September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio,
for cause. In view of the purported holographic will, petitioners averred that in the
event the decedent is found to have left a will, the intestate proceedings are to be
automatically suspended and replaced by the proceedings for the probate of the
will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo,
docketed as SP. Proc. No. 99–93396, was filed by petitioners before the RTC. They
likewise reiterated that the probate proceedings should take precedence over SP.
Proc. No. 98–90870 because testate proceedings take precedence and enjoy
priority over intestate proceedings.2
The document that petitioners refer to as Segundo’s holographic will is quoted, as
follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at
hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na
si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng
sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis
kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw
gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China
Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito
ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China
Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga
custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si
Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan
kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi
ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng
tatlong saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc.
No. 99–93396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings5 primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the
Civil Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all
other compulsory heirs were not named nor instituted as heir, devisee or legatee,
hence, there is preterition which would result to intestacy. Such being the case,
private respondents maintained that while procedurally the court is called upon to
rule only on the extrinsic validity of the will, it is not barred from delving into the
intrinsic validity of the same, and ordering the dismissal of the petition for probate
when on the face of the will it is clear that it contains no testamentary disposition
of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1)
generally, the authority of the probate court is limited only to a determination of
the extrinsic validity of the will; 2) private respondents question the intrinsic and
not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of
the estate of a decedent; and, 4) the rule on preterition does not apply because
Segundo’s will does not constitute a universal heir or heirs to the exclusion of one
or more compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng
Seangio, et al., clearly shows that there is preterition, as the only heirs mentioned
thereat are Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the
New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is
concerned, Article 854 does not apply, she not being a compulsory heir in the
direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would
amount to an abuse of discretion. The Supreme Court in the case of Acain v.
Intermediate Appellate Court [155 SCRA 100 (1987)] has made its position clear:
"for … 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 … 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 (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby
DENIED for lack of merit. Special Proceedings No. 99–93396 is hereby DISMISSED
without pronouncement as to costs.
SO ORDERED.7
Petitioners’ motion for reconsideration was denied by the RTC in its order dated
October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST
1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING
THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4
OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING
THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE
WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF
PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC
VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR’S
TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR
SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY
TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS
INDUBITABLE FROM THE FACE OF THE TESTATOR’S WILL THAT NO PRETERITON
EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID;
AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE
INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the
Rules of Court which respectively mandate the court to: a) fix the time and place
for proving the will when all concerned may appear to contest the allowance
thereof, and cause notice of such time and place to be published three weeks
successively previous to the appointed time in a newspaper of general circulation;
and, b) cause the mailing of said notice to the heirs, legatees and devisees of the
testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather,
as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a
disinheritance of a compulsory heir. Thus, there is no preterition in the decedent’s
will and the holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate. None of
the compulsory heirs in the direct line of Segundo were preterited in the
holographic will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is
both intrinsically and extrinsically valid, respondent judge was mandated to
proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice
to petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was
dated, signed and written by him in his own handwriting. Except on the ground of
preterition, private respondents did not raise any issue as regards the authenticity
of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundo’s intention of excluding his eldest son, Alfredo, as an heir to his estate for
the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same
must be effected through a will wherein the legal cause therefor shall be specified.
With regard to the reasons for the disinheritance that were stated by Segundo in
his document, the Court believes that the incidents, taken as a whole, can be
considered a form of maltreatment of Segundo by his son, Alfredo, and that the
matter presents a sufficient cause for the disinheritance of a child or descendant
under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of
children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the
accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
 (4) When a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already
made;
(5) A refusal without justifiable cause to support the parents or ascendant
who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
descendant;8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil
interdiction.
Now, the critical issue to be determined is whether the document executed by
Segundo can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be
witnessed.
Segundo’s document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic will
prescribed by law. It is written, dated and signed by the hand of Segundo himself.
An intent to dispose mortis causa[9] can be clearly deduced from the terms of the
instrument, and while it does not make an affirmative disposition of the latter’s
property, the disinheritance of Alfredo, nonetheless, is an act of disposition in
itself. In other words, the disinheritance results in the disposition of the property
of the testator Segundo in favor of those who would succeed in the absence of
Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized
as the supreme law in succession. All rules of construction are designed to
ascertain and give effect to that intention. It is only when the intention of the
testator is contrary to law, morals, or public policy that it cannot be given effect.11
Holographic wills, therefore, being usually prepared by one who is not learned in
the law, as illustrated in the present case, should be construed more liberally than
the ones drawn by an expert, taking into account the circumstances surrounding
the execution of the instrument and the intention of the testator.12 In this regard,
the Court is convinced that the document, even if captioned as Kasulatan ng Pag-
Aalis ng Mana, was intended by Segundo to be his last testamentary act and was
executed by him in accordance with law in the form of a holographic will. Unless
the will is probated,13 the disinheritance cannot be given effect.14
With regard to the issue on preterition,15 the Court believes that the compulsory
heirs in the direct line were not preterited in the will. It was, in the Court’s opinion,
Segundo’s last expression to bequeath his estate to all his compulsory heirs, with
the sole exception of Alfredo. Also, Segundo did not institute an heir16 to the
exclusion of his other compulsory heirs. The mere mention of the name of one of
the petitioners, Virginia, in the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to the altercation
between Segundo and his son, Alfredo.1âwphi1
Considering that the questioned document is Segundo’s holographic will, and that
the law favors testacy over intestacy, the probate of the will cannot be dispensed
with. Article 838 of the Civil Code provides that no will shall pass either real or
personal property unless it is proved and allowed in accordance with the Rules of
Court. Thus, unless the will is probated, the right of a person to dispose of his
property may be rendered nugatory.17
In view of the foregoing, the trial court, therefore, should have allowed the
holographic will to be probated. It is settled that testate proceedings for the
settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose.18
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of
Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP.
Proc. No. 98-90870 is hereby suspended until the termination of the aforesaid
testate proceedings.
No costs.
SO ORDERED.
G.R. No. 198994
IRIS MORALES, Petitioner,
vs.
ANA MARIA OLONDRIZ, ALFONSO JUAN OLONDRIZ, JR., ALEJANDRO MORENO
OLONDRIZ, ISABEL ROSA OLONDRIZ and FRANCISCO JAVIER MARIA
OLONDRIZ, Respondents.
DECISION
BRION, J.:
This is a petition for review on certiorari filed by Iris Morales from the May 27, 2011
decision and October 12, 2011 resolution of the Court of Appeals (CA) in CA-G.R. SP
No. 102358.1 The CA denied Morales' petition for certiorari from the Regional Trial
Court's (RTC) July 12, 2007 and October 30, 2007 orders in SP. Proc. No. 03-0060
and SP. Proc. No. 03-0069.2
Antecedents
Alfonso Juan P. Olondriz, Sr. (the decedent) died on June 9, 2003. He was survived
by his widow, Ana Maria Ortigas de Olondriz, and his children: Alfonso Juan O.
Olondriz, Jr., Alejandro Marino O. Olondriz, Isabel Rosa O. Olondriz, Angelo Jose O.
Olondriz, and Francisco Javier Maria Bautista Olondriz. His widow and children are
collectively referred to as the respondent heirs.
Believing that the decedent died intestate, the respondent heirs filed a petition
with the Las Piñas RTC for the partition of the decedent’s estate and the
appointment of a special administrator on July 4, 2003. The case was raffled
to Branch 254 and docketed as Sp. Proc. Case No. SP-03-0060.
On July 11, 2003, the RTC appointed Alfonso Juan O. Olondriz, Jr. as special
administrator.
However, on July 28, 2003, Iris Morales filed a separate petition with the RTC
alleging that the decedent left a will dated July 23, 1991. Morales prayed for the
probate of the will and for her appointment as special administratrix. Her petition
was also raffled to Branch 254 and docketed as Sp. Proc. Case No. SP-03-0069.
The pertinent portions of the decedent’s will reads:
1. Upon my death, IRIS MORALES OLONDRIZ shall be the executor hereof and
administrator of my estate until its distribution in accordance herewith. x x x
2. My entire estate shall be divided into six (6) parts to be distributed equally
among and between (1) IRIS MORALES OLONDRIZ, my children (2) ALFONSO JUAN
OLONDRIZ, JR., (3) ALEJANDRO OLONDRIZ, (4) ISABEL OLONDRIZ, (5) ANGELO
OLONDRIZ, and their mother (6) MARIA ORTEGAS OLONDRIZ, SR.3
Notably, the will omitted Francisco Javier Maria Bautista Olondriz, an illegitimate
son of the decedent.
On September 1, 2003, Morales filed a manifestation in Sp. Proc. Case No. SP-03-
0060 and moved to suspend the intestate proceedings in order to give way to the
probate proceedings in Sp. Proc. Case No. SP-03-0069. The respondent heirs
opposed Morales’ motion for suspension and her petition for allowance of the will.
On November 27, 2003, the RTC consolidated Sp. Proc. Case No. SP-03-
0060 with Sp. Proc. Case No. SP-03-0069.
On January 6, 2004, the respondent heirs moved to dismiss the probate
proceedings because Francisco was preterited from the will.
On January 10, 2006, Morales agreed to the holding of an evidentiary hearing to
resolve the issue of preterition. Thus, the RTC ordered the parties to submit their
factual allegations to support or negate the existence of preterition. Only the
respondent heirs complied with this order.
After several postponements at the instance of Morales, the reception of evidence
for the evidentiary hearing was scheduled on May 29, 2006. However, Morales
failed to appear, effectively waiving her right to present evidence on the issue of
preterition.
On June 23, 2006, the RTC, through Judge Gloria Butay Aglugub, suspended the
intestate proceedings in Sp. Proc. Case No. SP-03-0060 and set the case for
probate. The RTC reasoned that probate proceedings take precedence over
intestate proceedings.
The respondent heirs moved for reconsideration of the suspension order but the
RTC denied the motion on September 1, 2006. The RTC also summarily revoked the
Letters of Administration previously issued to Alfonso Jr.
The respondent heirs moved for reconsideration of the summary revocation of the
Letters of Administration. They also moved for the inhibition of Judge Aglugub of
Branch 254.
On November 16, 2006, the RTC granted the motion for inhibition. The case was
transferred to Branch 253 presided by Judge Salvador V. Timbang, Jr.
On July 12, 2007, the RTC resolved (1) the respondent heirs’ motion for
reconsideration of the revocation of the Letters of Administration and (2) Morales’
motion to be appointed Special Administratrix of the estate. The RTC noted that
while testacy is preferred over intestacy, courts will not hesitate to set aside
probate proceedings if it appears that the probate of the will might become an idle
ceremony because the will is intrinsically void.
The RTC observed: (1) that Morales expressly admitted that Francisco Javier Maria
Bautista Olondriz is an heir of the decedent; (2) that Francisco was clearly omitted
from the will; and (3) that based on the evidentiary hearings, Francisco was clearly
preterited. Thus, the RTC reinstated Alfonso Jr. as administrator of the estate and
ordered the case to proceed in intestacy.
Morales moved for reconsideration which the RTC denied on October 30, 2007, for
lack of merit.
On February 7, 2008, Morales filed a petition for certiorari against the orders of the
RTC. Morales alleged that the RTC acted with grave abuse of discretion in
proceeding intestate despite the existence of the will. The petition was docketed
as CA-G.R. SP No. 102358.
On May 27, 2011, the CA dismissed Morales’ petition for certiorari. The CA reasoned
that while probate proceedings take precedence over intestate proceedings, the
preterition of a compulsory heir in the direct line annuls the institution of heirs in
the will and opens the entire inheritance into intestate succession.4 Thus, the
continuation of the probate proceedings would be superfluous and impractical
because the inheritance will be adjudicated intestate. The CA concluded that the
RTC did not act with grave abuse of discretion.
Morales moved for reconsideration which the CA denied on October 12, 2011.
Hence, she filed the present petition for review on certiorari on December 5, 2011.
The Petition
Morales maintains that the RTC committed grave abuse of discretion when it
ordered the case to proceed intestate because: (1) the probate of a decedent’s will
is mandatory; (2) the RTC Branch 254 already ordered the case to proceed into
probate; (3) the order setting the case for probate already attained finality; (3) the
probate court cannot touch on the intrinsic validity of the will; and (4) there was no
preterition because Francisco received a house and lot inter vivos as an advance on
his legitime.
The respondent heirs counter: (1) that it is within the RTC’s jurisdiction to reverse
or modify an interlocutory order setting the case for probate; (2) that the
petitioner failed to mention that she did not appear in any of the evidentiary
hearings to disprove their allegation of preterition; (3) that the RTC and the CA
both found that Francisco was preterited from the will; and (4) that Francisco’s
preterition annulled the institution of heirs and opened the case into intestacy.
They conclude that the RTC did not exceed its jurisdiction or act with grave abuse
of discretion when it reinstated Alfonso Jr. as the administrator of the estate and
ordered the case to proceed intestate.
Our Ruling
We join the ruling of the CA.
Preterition consists in the omission of a compulsory heir from the will, either
because he is not named or, although he is named as a father, son, etc., he is
neither instituted as an heir nor assigned any part of the estate without expressly
being disinherited – tacitly depriving the heir of his legitime.5 Preterition requires
that the omission is total, meaning the heir did not also receive any legacies,
devises, or advances on his legitime.6
In other words, preterition is the complete and total omission of a compulsory
heir from the testator’s inheritance without the heir’s express disinheritance.
Article 854 of the Civil Code states the legal effects of preterition:
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.
If the omitted compulsory heirs should die before the testator, the institution shall
be effectual, without prejudice to the right of representation. (emphasis supplied)
Under the Civil Code, the preterition of a compulsory heir in the direct line shall
annul the institution of heirs, but the devises and legacies shall remain valid insofar
as the legitimes are not impaired. Consequently, if a will does not institute any
devisees or legatees, the preterition of a compulsory heir in the direct line will
result in total intestacy.7
In the present case, the decedent’s will evidently omitted Francisco Olondriz as an
heir, legatee, or devisee. As the decedent’s illegitimate son, Francisco is a
compulsory heir in the direct line. Unless Morales could show otherwise,
Francisco’s omission from the will leads to the conclusion of his preterition.
During the proceedings in the RTC, Morales had the opportunity to present
evidence that Francisco received donations inter vivos and advances on his legitime
from the decedent. However, Morales did not appear during the hearing dates,
effectively waiving her right to present evidence on the issue. We cannot fault the
RTC for reaching the reasonable conclusion that there was preterition.
attribute error – much less grave abuse of discretion – on the RTC for ordering the
case to proceed intestate.
Finally, there is no merit in the petitioner’s argument that the previous order
setting the case for probate barred the RTC from ordering the case to proceed
intestate. The disputed order is merely interlocutory and can never become final
and executory in the same manner that a final judgment does.13 An interlocutory
order does not result in res judicata.14 It remains under the control of the court and
can be modified or rescinded at any time before final judgment.15
Certiorari is a limited form of review confined to errors of jurisdiction. An error of
jurisdiction is one where the officer or tribunal acted without or in excess of its
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction.16 As discussed, it is well within the jurisdiction of the probate court to
pass upon the intrinsic validity of the will if probate proceedings might become an
idle ceremony due to the nullity of the will.

We will not entertain the petitioner’s factual allegation that Francisco was not On the other hand, grave abuse of discretion is the capricious and whimsical
preterited because this Court is not a trier of facts.1âwphi1 Furthermore, the CA exercise of judgment equivalent to an evasion of positive duty, or a virtual refusal
concurred with the RTC’s conclusion. We see no cogent reason to deviate from the to act at all in contemplation of the law.17 It is present when power is exercised in a
factual findings of the lower courts. despotic manner by reason, for instance, of passion and hostility. Morales failed to
show that the R TC acted in such a capricious and despotic manner that would
The remaining question is whether it was proper for the RTC to (1) pass upon the have warranted the CA's grant of her petition for certiorari. On the contrary, the
intrinsic validity of the will during probate proceedings and (2) order the case to RTC acted appropriately in accordance with the law and jurisprudence.
proceed intestate because of preterition.
WHEREFORE, the petition is DISMISSED. Costs against the petitioner.
The general rule is that in probate proceedings, the scope of the court’s inquiry is
limited to questions on the extrinsic validity of the will; the probate court will only SO ORDERED.
determine the will’s formal validity and due execution.8However, this rule is not
inflexible and absolute.9 It is not beyond the probate court’s jurisdiction to pass
upon the intrinsic validity of the will when so warranted by exceptional
circumstances.10 When practical considerations demand that the intrinsic validity of
the will be passed upon even before it is probated, the probate court should meet
the issue.11

The decedent’s will does not contain specific legacies or devices and Francisco’s
preterition annulled the institution of heirs.1avvphi1 The annulment effectively
caused the total abrogation of the will, resulting in total intestacy of the
inheritance.12 The decedent’s will, no matter how valid it may appear extrinsically,
is null and void. The conduct of separate proceedings to determine the intrinsic
validity of its testamentary provisions would be superfluous. Thus, we cannot