NERI v.

ATUKIN
G.R. No. L-47799   June 13, 1941

FACTS: Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children
and by his second marriage with Ignacia Akutin, five children. 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. 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.

ISSUE: Whether or not there is preterition

RULING: Yes. 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. 

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.

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. 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. 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.