[ G.R. No.

 8927, March 10, 1914 ]

ASUNCION NABLE JOSE ET AL., PLAINTIFFS AND APPELLANTS, VS.
MARIA IGNACIA USON ET AL., DEFENDANTS AND APPELLEES.

DECISION

MORELAND, J.:

The question involved in this appeal arises from the interpretation of the first and second
clauses of a codicil to the will of Filomena Uson. They read as follows:

"First. I declare that all the property which belongs to me as conjugal property, referred to
in my said testament, shall be the property of my aforesaid husband, Don Rafael Sison; in
case all or part of said property exists at my husband's death, it is my will that at his death
my sisters and nieces hereinafter named succeed him as heirs.

"Second. I declare to be my sisters in lawful wedlock the persons named Dona Antonia
Uson, now deceased, who has left two daughters called Maria Rosario, widow, and Maria
Paz, unmarried; Maria Romualda Uson, widow of Estanislao Lengson; Ignacia Uson,
married to Don Vicente Puzon; Eufemia Uson, now deceased, who is survived by three
daughters called Maria Salud, Maria Amparo, and Maria Asuncion; and Maria Pilar
Uson; Maria Manaoag Uson, unmarried, issue had by our deceased father Don Daniel
Uson with one Leonarda Fernandez, alias Andao de Lingayen, so that they may have and
enjoy it in equal parts as good sisters and relatives."

The court below found that the children of the deceased sisters should take only that
portion which their respective mothers would have taken if they had been alive at the
time the will was made; that the property should be divided into six equal parts
corresponding to the number of sisters; that each living sister should take one-sixth, and
the children of each deceased sister should also take one-sixth, each one-
sixth to be divided among said children equally.

This appeal is taken from the judgment entered upon that finding, appellants asserting
that under a proper construction of the paragraphs of the codicil above-quoted the
property should be divided equally between the living sisters and the children of the
deceased sisters, share and share alike, a niece taking the same share that a sister receives.

We are of the opinion that the appellants' contention is well founded. We see no words or
phrases in the clauses quoted which lead necessarily to the construction placed upon
those paragraphs by the learned court below. On the other hand, we find expressions
which seem to indicate with fair clearness that it was the intention of the testatrix to
divide her property equally between her sisters and nieces. The court below based its
construction upon the theory that the other construction would be "an admission that the
testatrix desired to favor her deceased sister Eufemia Uson, who left three children, more
than her other deceased sister Antonia Uson, who left two children, and moreover both
would be more favored than any of the other four surviving sisters, one of whom was
married at the time of the execution of the said codicil-and without doubt had children."

As we look at the codicil we observe, first, that the testatrix, in the first paragraph thereof,
declares that after her husband's death she desires that "my sisters and nieces, as
hereinafter named, shall succeed him as heirs."

We note, in the second place, that the testatrix, in the second paragraph of the codicil,
names and identifies each one of her heirs then living, or each one of the persons whom
she desires shall succeed her husband in the property. Among those mentioned
specifically are the nieces as well as-the sisters. The nieces are referred to in no way
different from the sisters. Each one stands out in the second paragraph of the codicil as
clearly as the other and under exactly the same conditions.

In the third place, we note, with interest, the last clause of the second paragraph of the
codicil which, it seems, to us, taken together with the last clause of the first paragraph of
the codicil, is decisive of the intention of the testatrix. In the last clause she says that she
names all of the persons whom she desires to take under her will by name "so that they
may take and enjoy the property in equal parts as good sisters and relatives."

We have then in the first paragraph a declaration as to who the testatrix desires shall
become the owners of her property on the death of her husband. Among them we find the
names of the nieces as well as of the sisters. We have also the final declaration of the
testatrix that she desires that the sisters and nieces shall take and enjoy the property in
equal parts. That being so, it appears to us that the testatrix's intention is fairly clear, so
clear in fact that it is unnecessary to bring in extraneous arguments to reach a conclusion
as to what she intended.

The judgment appealed from is hereby modified by declaring that, of the property passing
under the codicil herein-above referred to, the living sisters and the children of the
deceased sisters shall take per capita and in equal parts, and as so modified the judgment
is affirmed. No costs in this instance.

[ G.R. No. L-23079, February 27, 1970 ]

RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA AND LAURO AUSTRIA
MOZO, PETITIONERS, VS. HON. ANDRES REYES, JUDGE, COURT OF
FIRST INSTANCE OF RIZAL, PERFECTO CRUZ, BENITA CRUZ-MEÑEZ,
ISAGANI CRUZ, ALBERTO CRUZ AND LUZ CRUZ-SALONGA,
RESPONDENTS.

DECISION

CASTRO, J.:

On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance

of Rizal (Special Proceedings 2457) a petition for probate, ante mortem, of her last will
and testament.  The probate was opposed by the present petitioners Ruben Austria, Con-
suelo Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioners,
are nephews and nieces of Basilia.  This opposition was, however, dismissed and the
probate of the will allowed after due hearing.

The bulk of the estate of Basilia, admittedly, was destined, under the will to pass on to the
respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz
Cruz-Salonga, all of whom had been assumed and declared by Basilia as her own legally
adopted children.

On April 23, 1959, more than two years after her will was allowed to
probate, Basilia died.  The respondent Perfecto Cruz was appointed executor without
bond by the same court in accordance with the provisions of the decedent's will,
notwithstanding the blocking attempt pursued by the petitioner Ruben Austria.

Finally, on November 5, 1959, the present petitioners filed in the same proceedings a
petition in intervention for partition alleging in substance that they are the nearest of kin
of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been
adopted by the decedent in accordance with law, in effect rendering these respondents
mere strangers to the decedent and without any right to succeed as heirs.

Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate,

the court a quo allowed the petitioners' intervention by its order of December 22, 1959,
couched in broad terms, as follows: "The Petition in Intervention for Partition filed by the
above-named oppositors [Ruben Austria, et al. ] dated November 5, 1959 is hereby
granted."

In the meantime, the contending sides debated the matter of authenticity or lack of it of
the several adoption papers produced and presented by the respondents.  On motion of
the petitioners Ruben Austria, et al., these documents were referred to the National
Bureau of Investigation for examination and advice.  The N.B.I. report seems to bear out
the genuineness of the documents, but the petitioners, evidently dissatisfied with the
results, managed to obtain a preliminary opinion from a Constabulary questioned-
document examiner whose views undermine the authenticity of the said documents.  The
petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers
to the Philippine Constabulary for further study.  The petitioners likewise located former
personnel of the court which appeared to have granted the questioned adoption, and
obtained written depositions from two of them denying any knowledge of the pertinent
adoption proceedings.

On February 6, 1963, more than three years after they were allowed to intervene, the
petitioners Ruben Austria, et al., moved the lower Court to set for hearing the matter of
the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the
late Basilia.  Before the date set by the court for hearing arrived, however, the
respondent Benita Cruz-Meñez, who entered an appearance separately from that of her
brother Perfecto Cruz, filed on February 28, 1963 a motion asking the lower court, by
way of alternative relief, to confine the petitioners' intervention, should it be permitted, to
properties not disposed of in the will of the decedent.

On March 4, 1963, the lower court heard the respondent Benita's motion.  Both sides
subsequently submitted their respective memoranda, and finally, the lower court issued
an order on June 4, 1963, delimiting the petitioners' intervention to the properties of the
deceased which were not disposed of in the will.

The petitioners moved the lower court to reconsider this latest order, eliciting thereby an
opposition from the respondents.  On October 25, 1963 the same court denied the
petitioners' motion for reconsideration.

A second motion for reconsideration which set off a long exchange of memoranda from
both sides, was summarily denied on April 21, 1964.

Hence this petition for certiorari, praying this Court to annul the orders of June 4 and
October 25, 1963 and the order of April 21, 1964, all restricting petitioners' intervention
to properties that were not included in the decedent's testamentary dispositions.

The uncontested premises are clear. Two interests are locked in dispute over the bulk of
the estate of the deceased.  Arrayed on one side are the petitioners Ruben Austria,
Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and
nieces who are concededly the nearest surviving blood relatives of the decedent.  On the
other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-
Meñez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will
of the deceased Basilia, and all of whom claim kinship with the decedent by virtue of
legal adoption.  At the heart of the controversy is Basilia's last will -- immaculate in its
extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which
the respondent Perfecto Cruz and his brothers and sisters claim to have with the
decedent.  The lower court had, however, assumed, by its orders in question, that the
validity or invalidity of the adoption is not material nor decisive on the efficacy of the
institution of heirs; for, even if the adoption in question were spurious, the respondents
Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs but as testamen-
tary heirs instituted in Basilia's will.  This ruling apparently finds support in article 842 of
the Civil Code which reads:

"One who has no compulsory heirs may dispose of by will all his estate or any part of it
in favor of any person having capacity to succeed.
"One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs."

The lower court must have assumed that since the petitioners nephews and niece are not
compulsory heirs, they do not possess that interest which can be prejudiced by a free-
wheeling testamentary disposition.  The petitioners' interest is confined to properties, if
any, that have not been disposed of in the will, for to that extent intestate succession can
take place and the question of the veracity of the adoption acquires relevance.

The petitioners nephews and niece, upon the other hand, insist that the entire estate
should descend to them by intestacy by reason of the intrinsic nullity of the institution of
heirs embodied in the decedent's will.  They have thus raised squarely the issue of
whether or not such institution of heirs would retain efficacy in the event there exists
proof that the adoption of the same heirs by the decedent is false.

The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:

"The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause."

Coming closer to the center of the controversy, the petitioners have called the attention of
the lower court and this Court to the following pertinent portions of the will of the
deceased which recite:

“III
"Ang aking mga sapilitang tagapagmana (herederos forzosos)
ay ang aking itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina Perfe
cto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.
‘* * *
“V
"Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-
ariang maiiwan, sa kaparaanang sumusunod:
“A. - Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto,
Luz, Benita
at Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at w
alang lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kala
hati (1/2) ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asa
wang Pedro Cruz na napapaloob sa Actuacion Especial No.
640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa No.
I ng parafo IV ng testamentong ito, ang kalahati (1/2) ng mga lagay na lupa at palaisdaan 
na nasa Obando at
Polo, Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria,
at ang kalahati (1/2) ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking n
amana sa yumao kong kapatid na si Fausto Austria."

The tenor of the language used, the petitioners argue, gives rise to the inference that the
late Basilia was deceived into believing that she was legally bound to bequeath one-half
of her entire estate to the respondents Perfecto Cruz, et al. as the latter’s legitime.  The
petitioners further contend that had the deceased known the adoption to be spurious, she
would not have instituted the respondents at all -- the basis of the institution being solely
her belief that they were her compulsory heirs.  Proof therefore of the falsity of the
adoption would cause a nullity of the institution of heirs and the opening of the estate
wide to intestacy.  Did the lower court then abuse its discretion or act in violation of the
rights of the parties in barring the petitioners nephews and niece from registering their
claim even to properties adjudicated by the decedent in her will?

Before the institution of heirs may be annulled under article 850 of the Civil Code, the
following requisites must concur: First, the cause for the institution of heirs must be
stated in the will; second, the cause must be shown to be false; and third, it must appear
from the face of the will that the testator would not have made such institution if he had
known the falsity of the cause.

The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana” (legitime), that the impelling reason or cause
for the institution of the respondents was the testatrix's belief that under the law she could
not do otherwise.  If this were indeed what prompted the testatrix in instituting the
respondents, she did not make it known in her will.  Surely if she was aware that
succession to the legitime takes place by operation of law, independent of her own
wishes, she would not have found it convenient to name her supposed compulsory heirs
to their legitimes.  Her express adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory scheme.  But even this, like the peti-
tioners' own proposition, is highly speculative of what was in the mind of the testatrix
when she executed her will.  One fact prevails, however, and it is that the decedent's will
does not state in a specific or unequivocal manner the cause for such institution of
heirs.  We cannot annul the same on the basis of guess work or uncertain implications.

And even if we should accept the petitioners' theory that the decedent instituted the
respondents Perfecto Cruz, et al. solely because she believed that the law commanded her
to do so, on the false assumption that her adoption of these respondents was valid, still
such institution must stand.

Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever
false cause the testator may have written in his will for the institution of heirs.  Such
institution may be annulled only when one is satisfied, after an examination of the will,
that the testator clearly would not have made the institution if he had known the cause for
it to be false.  Now, would the late Basilia have caused the revocation of the institution of
heirs if she had known that she was mistaken in treating these heirs as her legally adopted
children? Or would she have instituted them nonetheless?

The decedent's will, which alone should provide the answer, is mute on this point or at
best is vague and uncertain.  The phrases,
"mga sapilitang tagapagmana" and "sapilitang mana," were borrowed from the language
of the law on succession and were used, respectively, to describe the class of heirs
instituted and the abstract object of the inheritance.  They offer no absolute indication
that the decedent would have willed her estate other than the way she did if she had
known that she was not bound by law to make allowance for legitimes.  Her disposition
of the free portion of her estate (libre disposicion) which largely favored the respondent
Perfecto Cruz, the latter's children, and the children of the respondent Benita Cruz, shows
a perceptible inclination on her part to give to the respondents more than what she
thought the law enjoined her to give to them.  Compare this with the relatively small
devise of land which the decedent had left for her blood relatives, including the petition-
ers Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben
Austria.  Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance,
then the petitioners and the other nephews and nieces would succeed to the bulk of the
estate by intestacy -- a result which would subvert the clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these explicit
injunctions in the Civil Code: "The words of a will are to receive an interpretation which
will give to every expression some effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a will that is to be preferred
which will prevent intestacy."[1]

Testacy is favored and doubts are resolved on its side, especially where the will evinces
an intention on the part of the testator to dispose of practically his whole estate,  as was
[2]

done in this case.  Moreover, so compelling is the principle that intestacy should

be avoided and the wishes of the testator allowed to prevail, that we could even vary the
language of the will for the purpose of giving it effect.  A probate court has found, by
[3]

final judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary

capacity and  her last will executed free from falsification, fraud, trickery or undue
influence.  In this situation, it becomes our duty to give full expression to her will.
[4]

At all events, the legality of the adoption of the respondents by the testatrix can be
assailed only in a separate action brought for that purpose, and cannot be the subject of a
collateral attack.  
[5]

To the petitioners' charge that the lower court had no power to reverse its order of
December 22, 1959, suffice it to state that, as born by the records, the subsequent orders
complained of served merely to clarify the first -- an act which the court could legally
do.  Every court has the inherent power to amend and control its processes and orders so
as to make them conformable to law and justice.    That the court a quo has limited the
[6]

extent of the petitioners' intervention is also within its powers as articulated by the Rules
of Court.[7]

ACCORDINGLY, the present petition is denied, at petitioners cost.

SECOND DIVISION
[ G.R. No. 129505, January 31, 2000 ]
OCTAVIO S. MALOLES II, PETITIONER, VS. PACITA DE LOS REYES
PHILLIPS, RESPONDENT.

[G.R. NO. 133359. JANUARY 31, 2000]

OCTAVIO S. MALOLES II, PETITIONER, VS. COURT OF APPEALS, HON.

FERNANDO V. GOROSPE, JR., IN HIS OFFICIAL CAPACITY AS
PRESIDING JUDGE OF RTC-MAKATI, BRANCH 61, AND PACITA
PHILLIPS AS THE ALLEGED EXECUTRIX OF THE ALLEGED WILL OF
THE LATE DR. ARTURO DE SANTOS, RESPONDENTS.

DECISION

MENDOZA, J.:

These are petitions for review on certiorari of the decisions of the Thirteenth and
the Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no
right to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases
were consolidated considering that they involve the same parties and some of the issues
raised are the same.

The facts which gave rise to these two petitions are as follows:

On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a
petition for probate of his will[1] in the Regional Trial Court, Branch 61, Makati, docketed
as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no
compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo
de Santos Foundation, Inc.; that he disposed by his will his properties with an
approximate value of not less than P2,000,000.00; and that copies of said will were in
the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A
copy of the will[2] was annexed to the petition for probate.

On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued
an order granting the petition and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the petition
on 12 September 1995, at 8:30 o’clock in the morning, copies of which were served to
Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer’s Return,
dated 04 September 1995 attached to the records). When the case was called for
hearing on the date set, no oppositor appeared nor any written opposition was ever
filed and on motion of petitioner, he was allowed to adduce his evidence in support of
the petition.

Petitioner personally appeared before this Court and was placed on the witness stand
and was directly examined by the Court through "free wheeling" questions and answers
to give this Court a basis to determine the state of mind of the petitioner when he
executed the subject will. After the examination, the Court is convinced that petitioner
is of sound and disposing mind and not acting on duress, menace and undue influence
or fraud, and that petitioner signed his Last Will and Testament on his own free and
voluntary will and that he was neither forced nor influenced by any other person in
signing it.

Furthermore, it appears from the petition and the evidence adduced that petitioner in
his lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5")
at his residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City;
said Last Will and Testament was signed in the presence of his three (3) witnesses,
namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty.
Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C.
delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the
presence of the testator and in the presence of each and all of the witnesses signed the
said Last Will and Testament and duly notarized before Notary Public Anna Melissa L.
Rosario (Exh. "A-15"); on the actual execution of the Last Will and Testament, pictures
were taken (Exhs. "B" to "B-3").

Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address
at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole
legatee and devisee of petitioner’s properties, real and personal, approximately valued
at not less than P2 million, Ms. Pacita de los Reyes Phillips was designated as executor
and to serve as such without a bond.

From the foregoing facts, the Court finds that the petitioner has substantially
established the material allegations contained in his petition. The Last Will and
Testament having been executed and attested as required by law; that testator at the
time of the execution of the will was of sane mind and/or not mentally incapable to
make a Will; nor was it executed under duress or under the influence of fear or threats;
that it was in writing and executed in the language known and understood by the
testator duly subscribed thereof and attested and subscribed by three (3) credible
witnesses in the presence of the testator and of another; that the testator and all the
attesting witnesses signed the Last Will and Testament freely and voluntarily and that
the testator has intended that the instrument should be his Will at the time of affixing
his signature thereto.

WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the
allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED and
ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.

On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming
that, as the only child of Alicia de Santos (testator’s sister) and Octavio L. Maloles, Sr., he
was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed for the
reconsideration of the order allowing the will and the issuance of letters of
administration in his name.

On the other hand, private respondent Pacita de los Reyes Phillips, the designated
executrix of the will, filed a motion for the issuance of letters testamentary with Branch
61. Later, however, private respondent moved to withdraw her motion. This was
granted, while petitioner was required to file a memorandum of authorities in support
of his claim that said court (Branch 61) still had jurisdiction to allow his intervention. [3]

Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand,
private respondent, who earlier withdrew her motion for the issuance of letters
testamentary in Branch 61, refiled a petition for the same purpose with the Regional
Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch
65.

Upon private respondent’s motion, Judge Salvador Abad Santos of Branch 65 issued an
order, dated June 28, 1996, appointing her as special administrator of Dr. De Santos’s
estate.

On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside
the appointment of private respondent as special administrator. He reiterated that he
was the sole and full blooded nephew and nearest of kin of the testator; that he came
to know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate
proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was still
pending; that private respondent misdeclared the true worth of the testator’s estate;
that private respondent was not fit to be the special administrator of the estate; and
that petitioner should be given letters of administration for the estate of Dr. De Santos.

On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to
Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC
Branch 61 . . ."

It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August
26, 1996 petitioner’s motion for intervention. Petitioner brought this matter to the
Court of Appeals which, in a decision[4] promulgated on February 13, 1998, upheld the
denial of petitioner’s motion for intervention.

Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the
records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending
case involving the Estate of Decedent Arturo de Santos pending before said court. The
order reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring
this case to this Branch 61 on the ground that this case is related with a case before this
Court, let this case be returned to Branch 65 with the information that there is no
related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before
this Branch.

There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of
the Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC.
NO. M-4223 which was already decided on 16 February 1996 and has become final.

It is noted on records of Case No. M-4223 that after it became final, herein Petitioner
Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS
TESTAMENTARY, which was subsequently withdrawn after this Court, during the
hearing, already ruled that the motion could not be admitted as the subject matter
involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her
motion and filed this case (No. 4343).

Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-
4223 and this motion was already DENIED in the order (Branch 61) of 26 August 1996
likewise for the same grounds that the matter is for a separate case to be filed under
Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of
the Rules of Court.

It is further noted that it is a matter of policy that consolidation of cases must be

approved by the Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996,[5] Judge Abad Santos appeared
firm in his position that " . . . it would be improper for (Branch 65) to hear and resolve
the petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were
commenced with Branch 61. He thus ordered the transfer of the records back to the
latter branch. However, he later recalled his decision and took cognizance of the case
"to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to
continue hearing this case notwithstanding the fact that said branch began the probate
proceedings of the estate of the deceased and must therefore continue to exercise its
jurisdiction to the exclusion of all others, until the entire estate of the testator had been
partitioned and distributed as per Order dated 23 September 1996, this branch
(Regional Trial Court Branch 65) shall take cognizance of the petition if only to expedite
the proceedings, and under the concept that the Regional Trial Court of Makati City is
but one court.

Furnish a copy of this order to the Office of the Chief justice and the Office of the Court
Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los
Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner’s motion for
intervention. Private respondent moved for a reconsideration but her motion was
denied by the trial court. She then filed a petition for certiorari in the Court of Appeals
which, on February 26, 1997, rendered a decision[6] setting aside the trial court’s order
on the ground that petitioner had not shown any right or interest to intervene in Sp.
Proc. No. M-4343.

Hence, these petitions which raise the following issues:

1. Whether or not the Honorable Regional Trial Court - Makati, Branch 61 has lost
jurisdiction to proceed with the probate proceedings upon its issuance of an
order allowing the will of Dr. Arturo de Santos

2. Whether or not the Honorable (Regional Trial Court - Makati, Branch 65) acquired
jurisdiction over the petition for issuance of letters testamentary filed by (private)
respondent.

3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos,
has a right to intervene and oppose the petition for issuance of letters
testamentary filed by the respondent.

4. Whether or not (private) respondent is guilty of forum shopping in filing her

petition for issuance of letters testamentary with the Regional Trial Court -
Makati, Branch 65 knowing fully well that the probate proceedings involving the
same testate estate of the decedent is still pending with the Regional Trial Court -
Makati, Branch 61.

First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did
not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing
the cases of Santiesteban v. Santiesteban[7] and Tagle v. Manalo,[8] he argues that the
proceedings must continue until the estate is fully distributed to the lawful heirs,
devisees, and legatees of the testator, pursuant to Rule 73, §1 of the Rules of Court.
Consequently, petitioner contends that Branch 65 could not lawfully act upon private
respondent’s petition for issuance of letters testamentary.

The contention has no merit.

In cases for the probate of wills, it is well-settled that the authority of the court is
limited to ascertaining the extrinsic validity of the will, i.e., whether the testator, being
of sound mind, freely executed the will in accordance with the formalities prescribed by
law.[9]

Ordinarily, probate proceedings are instituted only after the death of the testator, so
much so that, after approving and allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator. The cases cited by petitioner are of
such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate
of the will of a living testator under the principle of ambulatory nature of wills. [10]

However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the
will filed by the testator himself. It provides:
Civil Code, Art. 838. No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for
the allowance of his will. In such case, the pertinent provisions of the Rules of Court for
the allowance of wills after the testator’s death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary
for the allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the
testator or after his death, shall be conclusive as to its due execution.
Rule 76, §1 likewise provides:
Sec. 1 Who may petition for the allowance of will. - Any executor, devisee, or
legatee named in a will, or any other person interested in the estate, may, at any time
after the death of the testator, petition the court having jurisdiction to have the will
allowed, whether the same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in the court for the allowance of
his will.
The rationale for allowing the probate of wills during the lifetime of testator has
been explained by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary capacity
of the testator or the formalities adopted in the execution of wills. There are relatively
few cases concerning the intrinsic validity of testamentary dispositions. It is far easier
for the courts to determine the mental condition of a testator during his lifetime than
after his death. Fraud, intimidation and undue influence are minimized. Furthermore, if
a will does not comply with the requirements prescribed by law, the same may be
corrected at once. The probate during the testator’s life, therefore, will lessen the
number of contest upon wills. Once a will is probated during the lifetime of the testator,
the only questions that may remain for the courts to decide after the testator’s death
will refer to the intrinsic validity of the testamentary dispositions. It is possible, of
course, that even when the testator himself asks for the allowance of the will, he may
be acting under duress or undue influence, but these are rare cases.

After a will has been probated during the lifetime of the testator, it does not necessarily
mean that he cannot alter or revoke the same before his death. Should he make a new
will, it would also be allowable on his petition, and if he should die before he has had a
chance to present such petition, the ordinary probate proceeding after the testator’s
death would be in order.[11]
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there
was nothing else for Branch 61 to do except to issue a certificate of allowance of the will
pursuant to Rule 73, §12 of the Rules of Court. There is, therefore, no basis for the ruling
of Judge Abad Santos of Branch 65 of RTC-Makati that -
Branch 61 of the Regional Trial Court of Makati having begun the probate
proceedings of the estate of the deceased, it continues and shall continue to exercise
said jurisdiction to the exclusion of all others. It should be noted that probate
proceedings do not cease upon the allowance or disallowance of a will but continues up
to such time that the entire estate of the testator had been partitioned and distributed.

The fact that the will was allowed during the lifetime of the testator meant merely that
the partition and distribution of the estate was to be suspended until the latter’s death.
In other words, the petitioner, instead of filing a new petition for the issuance of letters
testamentary, should have simply filed a manifestation for the same purpose in the
probate court.[12]
 Petitioner, who defends the order of Branch 65 allowing him to intervene, cites
Rule 73, §1 which states:
Where estate of deceased persons settled. - If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate settled, in the Court of First
Instance in the province in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of any province in which he
had estate. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of jurisdiction appears on
the record.
The above rule, however, actually provides for the venue of actions for the
settlement of the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was
held:[13]
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the
clause "so far as it depends on the place of residence of the decedent, or of the location
of the state," is in reality a matter of venue, as the caption of the Rule indicates:
"Settlement of Estate of Deceased Persons. Venue and Processes." It could not have
been intended to define the jurisdiction over the subject matter, because such legal
provision is contained in a law of procedure dealing merely with procedural matters.
Procedure is one thing, jurisdiction over the subject matter is another. The power or
authority of the court over the subject matter "existed was fixed before procedure in a
given cause began." That power or authority is not altered or changed by procedure,
which simply directs the manner in which the power or authority shall be fully and justly
exercised. There are cases though that if the power is not exercised conformably with
the provisions of the procedural law, purely, the court attempting to exercise it loses the
power to exercise it legally. However, this does not amount to a loss of jurisdiction over
the subject matter. Rather, it means that the court may thereby lose jurisdiction over
the person or that the judgment may thereby be rendered defective for lack of
something essential to sustain it. The appearance of this provision in the procedural law
at once raises a strong presumption that it has nothing to do with the jurisdiction of the
court over the subject matter. In plain words, it is just a matter of method, of
convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement of estates with
approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in
Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The
different branches comprising each court in one judicial region do not possess
jurisdictions independent of and incompatible with each other. [14]

It is noteworthy that, although Rule 73, §1 applies insofar as the venue of the petition
for probate of the will of Dr. De Santos is concerned, it does not bar other branches of
the same court from taking cognizance of the settlement of the estate of the testator
after his death. As held in the leading case of Bacalso v. Ramolote:[15]
The various branches of the Court of First Instance of Cebu under the Fourteenth
Judicial District, are a coordinate and co-equal courts, and the totality of which is only
one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And
when a case is filed in one branch, jurisdiction over the case does not attach to the
branch or judge alone, to the exclusion of the other branches. Trial may be held or
proceedings continue by and before another branch or judge. It is for this reason that
Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the
administrative right or power to apportion the cases among the different branches, both
for the convenience of the parties and for the coordination of the work by the different
branches of the same court. The apportionment and distribution of cases does not
involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be
vested in the Court of First Instance of the province, and the trials may be held by any
branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over
Sp. Proc. No. M-4343.

Second. Petitioner claims the right to intervene in and oppose the petition for issuance
of letters testamentary filed by private respondent. He argues that, as the nearest next
of kin and creditor of the testator, his interest in the matter is material and direct. In
ruling that petitioner has no right to intervene in the proceedings before Branch 65 of
RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will of the
decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the only and
nearest collateral relative of the decedent, he can inherit from the latter only in case of
intestacy. Since the decedent has left a will which has already been probated and
disposes of all his properties the private respondent can inherit only if the said will is
annulled. His interest in the decedent’s estate is, therefore, not direct or immediate.

His claim to being a creditor of the estate is a belated one, having been raised for the
first time only in his reply to the opposition to his motion to intervene, and, as far as the
records show, not supported by evidence.

. . . . [T]he opposition must come from one with a direct interest in the estate or the will,
and the private respondent has none. Moreover, the ground cited in the private
respondent’s opposition, that the petitioner has deliberately misdeclared the truth
worth and value of the estate, is not relevant to the question of her competency to act
as executor. Section 2, Rule 76 of the Rules of Court requires only an allegation of the
probable value and character of the property of the estate. The true value can be
determined later on in the course of the settlement of the estate. [16]
Rule 79, §1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition for
administration. - Any person interested in a will may state in writing the grounds why
letters testamentary should not issue to the persons named therein as executors, or any
of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such
grounds. A petition may, at the same time, be filed for letters of administration with the
will annexed.
Under this provision, it has been held that an "interested person" is one who
would be benefited by the estate, such as an heir, or one who has a claim against the
estate, such as a creditor, and whose interest is material and direct, not merely
incidental or contingent.[17]

Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an
"heir" of the testator. It is a fundamental rule of testamentary succession that one who
has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art. 842
of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate or any part
of it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator’s -
(1 Legitimate children and descendants, with respect to their legitimate parents and
) ascendants;

(2 In default of the foregoing, legitimate parents and ascendants, with respect to their
) legitimate children and descendants;

(3 The widow or widower;

)

(4 Acknowledged natural children, and natural children by legal fiction;

)
(5 Other illegitimate children referred to in Article 287 of the Civil Code. [18]
)
Petitioner, as nephew of the testator, is not a compulsory heir who may have
been preterited in the testator’s will.

Nor does he have any right to intervene in the settlement proceedings based on his
allegation that he is a creditor of the deceased. Since the testator instituted or named
an executor in his will, it is incumbent upon the Court to respect the desires of the
testator. As we stated in Ozaeta v. Pecson:[19]
The choice of his executor is a precious prerogative of a testator, a necessary
concomitant of his right to dispose of his property in the manner he wishes. It is natural
that the testator should desire to appoint one of his confidence, one who can be trusted
to carry out his wishes in the disposal of his estate. The curtailment of this right may be
considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give
bond may the court appoint other persons to administer the estate. [20] None of these
circumstances is present in this case.

Third. Petitioner contends that private respondent is guilty of forum shopping when she
filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the
probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner,
there is identity of parties, rights asserted, and reliefs prayed for in the two actions
which are founded on the same facts, and a judgment in either will result in res
judicata in the other.

This contention has no merit. As stated earlier, the petition for probate was filed by Dr.
De Santos, the testator, solely for the purpose of authenticating his will. Upon the
allowance of his will, the proceedings were terminated.

On the other hand, the petition for issuance of letters testamentary was filed by private
respondent, as executor of the estate of Dr. De Santos, for the purpose of securing
authority from the Court to administer the estate and put into effect the will of the
testator. The estate settlement proceedings commenced by the filing of the petition
terminates upon the distribution and delivery of the legacies and devises to the persons
named in the will. Clearly, there is no identity between the two petitions, nor was the
latter filed during the pendency of the former. There was, consequently, no forum
shopping.

WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are
hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 191031, October 05, 2015 ]
DOLORES L. HACBANG AND BERNARDO J. HACBANG, PETITIONERS,
VS. ATTY. BASILIO H. ALO, RESPONDENT.

DECISION

BRION, J.:*

This petition for review on certiorari  seeks to reverse the 13 October 2009
Decision and the 21 January 2010 resolution of the Court of Appeals (CA) in CA-G.R CV
No. 83137.[1] The CA affirmed the Quezon City Regional Trial Court's (RTC) dismissal of
the petitioners' complaint in Civil Case No. Q 99-36660[2] for lack of cause of action.

ANTECEDENTS

On 3 April 1937, Bishop Sofronio Hacbang (Bishop Sofronio) died leaving several
properties behind. Among these was Lot No. 8-A of subdivision Plan Psd-6227 located at
España Street, San Juan, Rizal,[3] covered by Transfer Certificate of Title (TCT) No.
(19896) 227644 (the subject lot).

Bishop Sofronio was survived by his parents, Basilio and Maria Hacbang, and his siblings:
Perfecto Hacbang, Joaquin Hacbang, Lucia Teresita Hacbang, and Dolores Hacbang Alo.
Petitioner Dolores L. Hacbang is the grandchild of Perfecto while petitioner Bernardo
Hacbang (Bernardo) is a son of Joaquin. The respondent Basilio Alo is the son of Dolores.

Bishop Sofronio left a will denominated as Ultima Voluntad y Testamento. He left one-
half of his properties to his parents and devised the other half - including the subject lot
- to his sister Dolores. The pertinent portions of his will read:

FOURTH: By these presents I give, name, declare and institute as heirs my parents
BASILIO HACBANG and MARIA GABORNY DE HACBANG of one-half of all my properties,
whether real, personal or mixed, in whatever place they may be found, whether they
were acquired before or after the execution of this testament, including all the
properties that at the time of my death I may have the power to dispose of by will, and
which properties consist of the following:

Fifty (50) percent of the shares of stock that I own in the "SAMAR NAVIGATION CO. INC."

A parcel of land with its camarin situated in the Municipality of Carigara, Province of

Leyte.

A parcel of land in the Barrio of Pinamopuan, of the Municipality of Capoocan, Province

of Leyte.

A parcel of land with house and planted to coconuts in the Barrio of Sorsogon,
Municipality of Sta. Margarita, Province of Samar.

FIFTH: The other remaining half of my properties wherever they may be located, by

these presents I give, cede and hand over to my sister Dolores Hacbang, which
properties are more particularly described as follows:

Fifty (50) percent of my stockholdings in the "SAMAR NAVIGATION CO. INC."

A piece of land with one house where the Botica San Antonio is located, in the
Municipality of Calbayog, Province of Samar.

A piece of land with house in Acedillo St., Municipality of Calbayog, Province of Samar.

A piece of land with 1 camarin in the barrio of Sorsogon, Municipality of Sta. Margarita,
Province of Samar.

Six (6) Parcels of land located in "NEW MANILA," Municipality of San Juan, Province of
Rizal, in 7th St., described as follows: Block 7, Lots 16, 18, 20 and 22, and in 3rd Street,
Block 3, Lots 4 and 6.
A piece of land situated in Espana St., Municipality of San Juan del Monte of the
Province of Rizal, marked as Lot 8-A, Block 17, of 1,403 square meters in area.[4]

On 16 April 1937, a petition for the probate of Bishop Sofronio's will and the settlement
of his estate was filed before the then Court of First Instance (CFI) of Manila. The
petition was docketed as SP. PROC. No. 51199.

On 21 May 1937, the CFI admitted Bishop Sofronio's will to probate. [5]

The records are bare with respect to what happened next. They show, however, that
the CFI ordered the proceedings to be archived on 2 November 1957.

On 24 September 1971, the Register of Deeds of Quezon City appears to have

issued TCT No. 169342 over the subject lot in the name of respondent Basilio H. Alo. TCT
No. 169342 cancelled TCT No. 117322/T-500. However, this Court cannot determine the
circumstances surrounding the issuance of TCT No. 169342 or the relationship between
TCT No. 117322/T-500 and TCT No. (19896) 227644 due to the inadequacy of the
documents on record.

On 17 March 1975, Dolores Hacbang Alo moved to revive the settlement proceedings
because the CFI had not yet completed adjudicating the properties.

On 23 May 1975, the CFI denied the motion for revival because the order to archive
"had long become final and executory."[6]

On 1 February 1999, petitioners Dolores L. Hacbang and Bernardo filed a petition to

cancel TCT No. 169342 on the ground that it was fraudulently secured. In support of
their allegations, they submitted the 5 March 1997 Investigation Report of Land
Registration Authority (LRA) Investigator Rodrigo I. Del Rosario. The report concluded
that TCT No. 117322 was of "doubtful authenticity" and was neither derived from TCT
No. 117322 nor issued by the Registry of Deeds of Quezon City on 24 September 1971 at
2:30 PM.

In his Answer dated 18 August 1999, Basilio denied all allegations of irregularity and
wrongdoing. He also moved to dismiss the petition because the petitioners were neither
heirs nor devisees of Bishop Sofronio and had no legal interest in the subject lot.
On 7 January 2003, the RTC dismissed the petition because the petitioners had no right
to prosecute the case on the subject lot. The RTC noted that Bishop Sofronio's will had
already been admitted into probate in 1937; thus, the intrinsic validity of the will is no
longer in question. Though the settlement proceedings were archived, Bishop Sofronio
already designated his heirs: Bishop Sofronio's parents were compulsory heirs entitled
to half of his estate while the respondent's mother, Dolores Hacbang Alo, was devised
the remaining half (the free portion). Thus, the petitioners, who are neither compulsory
nor testamentary heirs, are not real parties in interest.

The petitioners moved for reconsideration which the RTC denied on 19 August 2003.

The petitioners appealed to the CA, arguing that: (1) Bishop Sofronio's will did not
validly transfer the subject property to Dolores Hacbang Alo; (2) the probate of the will
is not conclusive as to the validity of its intrinsic provisions; and (3) only a final decree of
distribution of the estate vests title on the properties from the estate on the
distributees.[7] The appeal was docketed as CA-G.R CV No. 83137.

They further argued that the distribution of the estate should be governed by intestate
succession because: (1) the subject property was not adjudicated; and (2) the
settlement proceedings were archived and dismissed. Thus, all the properties passed on
to and became part of the estate of Bishop Sofronio's parents. The petitioners
concluded that they had legal interest in the subject lot as representatives of their
ascendants, the other children of Bishop Sofronio's parents.

In his appeal brief, the respondent insisted that the petitioners do not have a clear legal
right to maintain the suit because: (1) as collateral relatives, they cannot invoke the
right of representation to the estate of Bishop Sofronio; and (2) they are not real parties
in interest and have no right of action over the subject lot.

On 13 October 2009, the CA affirmed the RTC's order of dismissal. The CA held that the
admission of Bishop Sofronio's will to probate precluded intestate succession unless the
will was intrinsically invalid or failed to completely dispose of his estate. Contrary to the
petitioners' contention, the settlement proceedings were not dismissed but archived;
the will did not lose its validity merely because the proceedings were archived.
Undoubtedly, Bishop Sofronio did not die intestate.
The CA denied the petitioners' claim to a right of inheritance by representation. It held
that the presence of Bishop Sofronio's parents during his death excluded his brothers
and sisters from being compulsory heirs; the petitioners cannot represent those who
are hot entitled to succeed. Considering that they are neither compulsory nor
testamentary heirs, petitioners have no legal interest in the subject property.

The petitioners moved for reconsideration which the CA denied on 21 January 2010. The
denial paved the way for the petitioners to file the present petition for review
on certiorari.

THE PETITION

The petitioners argue: (1) that the CA erred when it failed to rule on the validity of TCT
No. 169342; (2) that the probate proceedings of the estate was dismissed, not archived;
and (3) that the CA erred when it used Bishop Sofronio's will as basis to declare that
they are not real parties in interest.

In his Comment, the respondent maintained that the petitioners had no right over the
property and moved to dismiss the present petition.

OUR RULING

At the outset, this Court observes that the parties and even the lower courts
erroneously applied the provisions of the present Civil Code to the will and the estate of
Bishop Sofronio. The law in force at the time of the decedent's death determines the
applicable law over the settlement of his estate.[8] Bishop Sofronio died in 1937 before
the enactment of the Civil Code in 1949. Therefore, the correct applicable laws to the
settlement of his estate are the 1889 Spanish Civil Code and the 1901 Code of Civil
Procedure.

In any case, under both the Spanish Code and our Civil Code, successional rights are
vested at the precise moment of the death of the decedent. Section 657 of the Spanish
code provides:

Art. 657. Los derechos a la sucesion de una persona se transmiten desde el

momento de su muerte.[9]

The inheritance vests immediately upon the decedent's death without a moment's
interruption. This provision was later on translated and adopted as Article 777 of our
Civil Code.[10]

As a consequence of this principle, ownership over the inheritance passes to the heirs at
the precise moment of death - not at the time the heirs are declared, nor at the time of
the partition, nor at the distribution of the properties. There is no interruption between
the end of the decedent's ownership and the start of the heir/legatee/devisee's
ownership.

For intestate heirs, this means that they are immediately entitled to their hereditary
shares in the estate even though they may not be entitled to any particular properties
yet. For legatees and devisees granted specific properties, this means that they acquire
ownership over the legacies and devises at that immediate moment without prejudice
to the legitimes of compulsory heirs.

Undoubtedly, Bishop Sofronio did not die intestate. He left a will that was probated in
1937. He left half of his properties to his parents and the remaining half to his sister
Dolores Hacbang Alo. The admission of his will to probate is conclusive with respect to
its due execution and extrinsic validity.[11]

Unfortunately, the settlement proceedings were never concluded; the case was
archived without any pronouncement as to the intrinsic validity of the will or an
adjudication of the properties. Because of this, the petitioners posit that intestate
succession should govern. They maintain that the entire inheritance should have gone
to Bishop Sofronio's parents, the petitioners' ascendants. Thus, they claim to have a
legal interest in the subject lot as representatives of the other children of Bishop
Sofronio's parents.

We do not find the petitioners' argument meritorious.

Our jurisdiction has always respected a decedent's freedom to dispose of his estate,
whether under the Spanish Civil Code or under the present Civil Code. Article 763 of the
Spanish Code provides:

Art. 763. El que no tuviere herederos forzosos puede disponer por testamento de
todos sus bienes o de parte de ellos en favor de cualquiera persona que tenga capacidad
para adquirirlos. El que tuviere herederos forzosos solo podra disponer de sus bienes en
la forma y con las limitaciones que se establecen en la section quinta de este capitulo.
This provision states that a person without compulsory heirs may dispose of his estate,
either in part or in its entirety, in favor of anyone capacitated to succeed him; if the
testator has compulsory heirs, he can dispose of his property provided he does not
impair their legitimes. This provision was later translated and adopted as Article 842 of
our Civil Code.[12]

Our jurisdiction accords great respect to the testator's freedom of disposition. Hence,
testate succession has always been preferred over intestacy. [13] As much as possible, a
testator's will is treated and interpreted in a way that would render all of its provisions
operative.[14] Hence, there is no basis to apply the provisions on intestacy when testate
succession evidently applies.

Even though the CFI archived the settlement proceedings, there is no indication that it
declared any of the dispositions in the will invalid. The records are understandably bare
considering the probate proceedings were initiated as early as 1937. Nonetheless, we
find no reason to doubt the intrinsic validity of the will.

Bishop Sofronio was free to dispose of his estate without prejudice to the legitimes of
his compulsory heirs. Bishop Sofronio's only compulsory heirs were his parents.[15] Their
legitime was one-half of Bishop Sofronio's estate. [16] Considering that Bishop Sofronio
gave his parents half of his estate, then he was free to dispose of the free portion of his
estate in favor of his sister, Dolores Hacbang Alo.  Thus, his will was intrinsically valid.

The CFPs failure to adjudicate the specific properties is irrelevant because Bishop
Sofronio did not just name his heirs; he also identified the specific properties forming
part of their inheritance. The dispositions in the will rendered court adjudication and
distribution unnecessary.

The petitioners' contention that only a final decree of distribution of the estate vests
title to the land of the estate in the distributees is also incorrect. Again, ownership over
the inheritance vests upon the heirs, legatees, and devisees immediately upon the
death of the decedent.

At the precise moment of death, the heirs become owners of the estate pro-indiviso.
They become absolute owners of their undivided aliquot share but with respect to the
individual properties of the estate, they become co-owners. This co-ownership remains
until partition and distribution. Until then, the individual heirs cannot claim any rights
over a specific property from the estate. This is because the heirs do not know which
properties will be adjudicated to them yet. Hence, there is a need for a partition before
title over particular properties vest in the distributee-heirs.

However, heirs, legatees, and devisees bequeathed specific properties do not require
Court adjudication to identify which particular properties become theirs; the testator
had already identified these. From the very moment of the testator's death, title over
these particular properties vests on the heir, legatee, or devisee.

On 3 April 1937, title over the subject lot passed on to the respondent's mother, Dolores
Hacbang Alo, at the exact moment of her brother's death. From that moment on, she
was free to dispose of the subject lot as a consequence of her ownership.

On the other hand, Bishop Sofronio's parents, Basilio and Maria Gaborny Hacbang,
never acquired the title over the subject lot. Thus, it never became part of their estate.
Clearly, the petitioners - who claim to represent the children of Basilio and Maria
Gaborny in the spouses' estate -have no legal right or interest over the subject lot.

Every ordinary civil action must be based on a cause of action - an act or omission that
violates the rights of the plaintiff.[17] A cause of action requires:

(1) a legal right in favor of the plaintiff;

(2) a correlative duty of the defendant to respect the plaintiffs right; and

(3) an act or omission of the defendant in violation of the plaintiffs right. [18]

Every action must also be prosecuted or defended in the name of the real party in
interest: the party who stands to be benefited or injured by the judgment. [19] These
fundamental requirements are not merely technical matters; they go into the very
substance of every suit.

The petitioners came to the courts praying for the annulment of the respondent's title
yet they failed to show that they are entitled to even ask for such relief. They have no
right over the subject lot and the respondent has no legal obligation to them with
respect to the subject lot. Even if we assume that the respondent fraudulently or
irregularly secured his certificate of title, the bottom-line is that the petitioners have no
legal standing to sue for the cancellation of this title. This right only belongs to the
rightful owner of the subject lot.

Judicial power is the duty of the courts to settle actual controversies involving rights
which are legally demandable and enforceable. [20] Courts settle real legal disputes
involving the rights and obligations between parties. If either of the parties is not the
real party in interest, the Court cannot grant the reliefs prayed for because that party
has no legal right or duty with respect to his opponent. Further litigation becomes an
academic exercise in legal theory that eventually settles nothing - a waste of time that
could have been spent resolving actual justiciable controversies.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. Costs

against the petitioners.

SO ORDERED.

[ G. R. No. L-23445, June 23, 1966 ]

REMEDIOS NUGUID, PETITIONER AND APPELLANT VS. FELIX NUGUID
AND PAZ SALONGA NUGUID, OPPOSITORS AND APPELLEES.

DECISION

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and 6 brothers and sisters, namely: Alfredo, Federico,
Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of
Rizal a holographic will allegedly executed by Rosario Nuguid on November 17, 1951,
some 11 years before her demise. Petitioner prayed that said will be admitted to probate
and that letters of administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to the probate
of her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios
Nuguid as universal heir of the deceased, oppositors - who are compulsory heirs of the
deceased in the direct ascending line - were illegally preterited and that in consequence
the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to dismiss. The
court's order of November 8, 1963, held that "the will in question is a complete nullity
and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and
dismissed the petition without costs. A motion to reconsider having been thwarted below,
petitioner came to this Court on appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for
the probate of a will. The court's area of inquiry is limited - to an examination of,
and resolution on, the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the requisites or
solemnities by law prescribed, are the questions solely to be presented, and to be
acted upon, by the court. Said court - at this stage of the proceedings - is not called
upon to rule on the intrinsic validity or efficacy of the provisions of the will, the
legality of any devise or legacy therein.[1]

A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that
the will has been duly authenticated. [2] But petitioner and oppositors, in the court below
and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears in
the record, in the event of probate or if the court rejects the will, probability exists that
the 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 nullity of the provisions of the will in question. [3] After all, there exists a
justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion

below that the will is a complete nullity. This exacts from us a study of the
disputed will and the applicable statute.

Reproduced hereunder is the will:

"Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having
amassed a certain amount of property, do hereby give, devise, and bequeath all of the
property which I may have when I die to my beloved sister Remedios Nuguid, age 34,
residing with me at 38-B Iriga, Q.C. In witness .whereof, I have signed my name this
seventh day of November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUOUID"

The statute we are called upon to apply is Article 854 of the Civil Code which, in part,
provides:
"Art. 854. The preteritlon 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; the devises and legacies shall be valid
insofar as they are not inofficious, ***"
Except for inconsequential variation in terms, the foregoing is a reproduction of Article
814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus -
"Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living
at tbe 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[4] shall be valid, in so far as they
are not inofficious, ***"
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:

"La pretericion consists en omitir al heredero- en el testamento. 0 no se le nombra

siquiera, o aun nombrandole como padre, hijo, etc., no se le instituye heradero ni se le
deshereda expresamente, ni se le asigna parte alguna de los bienes, resultando privado de
un raodo tacito de su derecho a legitima.

Para que exista pretericitfn, con arreglo al articulo 814, basta que en el testamento omita
el tastador a uno cualquiera de aquellos a quienes por su muerte corresponds la herencia
forssosa. Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la
omision sea completa; que el heredero forzoso nada reciba en el testamento." [5]

It may now appear trite but nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:

"To 'annul' means to abrogate, to make vouid; In re Morrow's Estate, 54 A. 342, 204 Pa.
484."[6]

"The word 'annul' as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 - 38
(now N.J.S.2A:34-25). Madden vs. Madden, 40 A.2d 611, 614, 136.N.J. Eq. 132."[7]

"ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to

nullify; to aboli3h; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771,
774."[8]

And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending
line - her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the testament; tacitly, they
were deprived of their legitime; neither were they expressly disinherited. This is a clear
case of preterition. Such preterition in the words of Manresa "anulara siempre la
institucioin de heredero, dando caracter absoluto a este ordenamlento", referring to the
mandate of Article 814, now 854 of the Civil Code.[9] The one-sentence will here
institutes petitioner as the sole, universal heir - nothing more. No specific legacies or
bequests are therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
"En cuanto a la institucitin de heredero, se anula. Lo que se anula deja de existir, en todo
o en parte? No se anade limitacion alguna, como en el artfculo 851, en el que se expresa
que se anulara la institucion de heredero en cuanto perjudique a la legitlma del
desheredado. Debe, pues, entenderse que la anulacio'n es completa o total, y que este
artlculo como especial en el caso que le motiva. rige con preferencia al 817." [10]
The same view is expressed by Sanchoz Roman:-
"La eonsecuencfa de la anulacifn 6 nulidad de- la institucidn de heredero por pretericlin
de uno, varios 6 todos los forzosos en linea recta, es la apertura de la sucesidn
intestada, total 6 parcial. SerA total, cuando el testador que comets la pretericiin, hubiere
dispuesto de todos los bienes por tltulo universal de herencia en favor de los herederos
institucion, cuya instituclon se anula, porque asi lo exige la generalidad del precepto legal
del art. 814, al determiner, como efecto de la preterici6n, el de que ¦anularA la institucion
de heredero'.***"[11]
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results in
totally abrogating the will. Because, the nul- lification of such institution of universal heir
- without any other testamentary disposition in the will - amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 offers no
leeway for inferential interpretation. Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, S&nchez RomSn cites the "Memoria annual
del Tribunal Supremo, correspondiente a 1908", which in our opinion expresses the rule
of interpretation, viz:
"*** El art. 814, que preceptiia en tales casos de preterici6n la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto, aun cuando parezca, y en algun caso pudiera ser, mas 6 menos
equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho
o el acto no se ha realizado, debiendo, por lo tanto, procederse sobre tal base 6 supuesto,
y consiguientemente, en un testamento donde falte la institucion, es obllgado llamar a los
herederos forzosos en todo caso, como habrfa que llamar a los de otra clase, cuando el
testador no hubiese distribufdo todos sus bienes en legados, siendo tanto mas obllgada
esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia. con repeticion, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituirfa una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razdn para modificar la ley, pero que no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay raz6n para convertir este juicio en regla de interpretaci6n, desvirtuando
y anulando por este procedimiento lo que el legislador quiere establecer."[12]

3. We should not be led astray by the statement in Article 854 that, annulment
notwithstanding, "the devisees and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will - void because of preterition -
would give the heir so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the nullified
institution of heir, Sanchez Roman, speaking of the two component parts of
Article 814, now 854, states that preterition annuls the institution of the heir
"totalmente por la pretericion"; but added (in reference to legacies and bequests),
"pero subsistiendo, x x x todas aquellas otras disposiciones que no se refieren a la
institucidn de heredero ***".[13] As Manreea puts it, annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que) no
hubiese dispuesto en virtud de legado, mejora o donacidn."[14]

As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues,

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance

rather than one of preterition".[15] From this, petitioner draws the conclusion that
Article 854 "does not apply to the case at bar". This argument fails to appreciate
the distinction between preterition and disinheritance.
Preterltlon "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." [16] Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in the legitime for
a cause authorized by law."[17] In Manresa's own words: "La privaciin expresa de la
legitima constituye la desheredacio'n. La privacio'n tacita de la misma se denomina
pretericion.'[18] Sanchez Roman emphasizes the distinction by stating that disinheritance
"es siempre Yoluntarla": preterition, upon the other hand, is presumed to be
"involuntaria".[19] Express as disinheritance should be, the same must be supported by a
legal cause specified in the will itself.[20]

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall
annul the institution of heir". This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs," but only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the ease of preterition.[21] Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive language, in commenting on the
rights of the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquieren el derecho a
todo; deshereda dos, solo les corresponde un tercio o dos teroios,[22] segun el caso."[23]

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although
the inheritance of the heir so instituted is reduced to the extent of said legitimes.[24]

This is best answered by a reference to the opinion of Mr. Chief Justice Koran in the Nerl
case heretofore cited, viz:

"But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and, accordingly,
it must not be entirely annulled but merely reduced. This theory, if adopted, will result in
a complete abrogation of articles 814 and 851 of the Civil Code. If every case of
institution of heirs may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of articles 814 and 851 regarding
total or partial nullity of the institution, would be absolutely meaningless and will never
have any application at all. And the remaining provisions contained in said article
concerning the reduction of inofficious legacies or betterments would be a surplusage
because they would be absorbed by article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.
With reference to article 814, which is the only provision material to the disposition of
this case, it must be observed that the institution of heirs is therein dealt with as a thing
separate and distinct from legacies or betterment. And they are separate and distinct not
only because they are distinctly and separately treated in said article but because they are
in themselves different. Institution of heirs is a bequest by universal title of property that
is undetermined. legacy refers to specific property bequeathed by a particular or special
title. *** But again an institution of heirs cannot be taken as a legacy," [25]

The disputed order, we observe, declares the will in question "a complete nullity". Article
854 of the Civil Code in turn merely nullifies "the institution of heir." Considering,
however, that the will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed.

SO ORDERED.

EN BANC
[ 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.

DECISION

PARAS, J.:

This is a petition for review on certiorari of the decision  of respondent Court of
*

Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108)

ordering the dismissal of the petition in Special Proceedings No. 591-A-CEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying 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-A-CEB.  No special pronouncement is made as
to costs."

The antecedents of the case, based on the summary of the Intermediate Appellate
Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed in the Regional Trial Court
of Cebu City Branch XIII, a petition for the probate of the will of the
late Nemesio Acain and for the issuance to the same petitioner of letters testamentary,
docketed as Special Proceedings No. 591-A-CEB (Rollo, p. 29), on the premise
that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio,
Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as
heirs.  The will allegedly executed by Nemesio Acain on February 17, 1960 was written
in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submitted by petitioner
without objection raised by private respondents.  The will contained provisions on burial
rites, payment of debts, and the appointment of a certain Atty. Ignacio
G. Villagonzalo as the executor of the testament.  On the disposition of the 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 predeceases
me, all the money properties, lands, houses there in Bantayan and here
in Cebu City which constitute my share shall be given by me to his children,
namely:  Anita, Constantino, Concepcion, Quirina, Laura, Flores, Antonio and Jose, all
surnamed Acain."

Obviously, Segundo pre-deceased Nemesio.  Thus, it is the children of Segundo

who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings
No. 591-A-CEB.
After the petition was set for hearing in the lower court on June
25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted
daughter of the deceased and the latter's widow Rosa Diongson Vda. de Acain) filed a
motion to dismiss on the following grounds:  (1) the petitioner has no legal capacity to
institute these proceedings; (2) he is merely a universal heir and (3) the widow and the
adopted daughter have been preterited.  (Rollo, p. 158).  Said motion was denied by the
trial judge.
After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition with
preliminary injunction which was subsequently referred to the 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-A-CEB.
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 ERIT LEX.  What the testator says will be the law;
(E)   There may be nothing in Article 854 of the New Civil Code, that suggests that
mere institution of a universal heir in the will would give the heir so instituted a share in
the inheritance but there is a definite distinct intention of the testator in the case at bar,
explicitly expressed in his will.  This is what matters and should be inviolable.
(F)   As an instituted heir, petitioner has the legal interest and standing to file the
petition in Sp. Proc. No. 591-A-CEB for probate of the will of Nemesio Acain; and
(G)  Article 854 of the New Civil Code is a bill of attainder.  It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have
been preterited.
Article 854 of the Civil Code provides:
"Art. 854.  The preterition or omission of one, some, or all of the 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 be 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 [1982].  Insofar as the widow is
concerned, Article 854 of the Civil Code may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir.  Stated otherwise, even if
the surviving spouse is a compulsory heir, there is no preterition even if she is omitted
from the inheritance, for she is not in the direct line.  (Art. 854, Civil Code).  However,
the same thing cannot be said of the other respondent Virginia A. Fernandez,
whose legal adoption by the testator has not been questioned by petitioner
(Memorandum for the Petitioner, pp. 8-9).  Under Article 39 of P.D. No. 603, known as
the Child and Youth Welfare Code, adoption gives to the adopted person the same
rights and duties as if he were a legitimate child of the adopter and makes the adopted
person a legal heir of the adopter.  It cannot be denied that she was totally omitted
and preterited in the will of the testator and that both adopted child and the widow were
deprived of at least their legitime.  Neither can it be denied that they were not expressly
disinherited.  Hence, this is a clear case of preterition of the legally adopted child.
Preterition annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including
"la porción libre (que)no hubiese dispuesto en virtual de legado, mejora o donación"
(Manresa, as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114
SCRA [1982]).  The only provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected, except in so far as
the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the
entire inheritance of the testator results in totally abrogating the will because the
nullification of such institution of universal heirs - without any other testamentary
disposition in the will - amounts to a declaration that nothing at all was written.  Carefully
worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential
interpretation (Nuguid v. Nuguid), supra.  No legacies nor devises having been provided
in the will the whole property of the deceased has been left by universal title to
petitioner and his brothers and sisters.  The effect of annulling the institution of heirs will
be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943])
except that proper legacies and devises must, as already stated above, be respected.
We now deal with another matter.  In order that a person may be allowed to
intervene in a probate proceeding he must have an interest in the estate, or in the will,
or in the property to be affected by it either as executor or as a claimant of the estate
and an interested party is one who would be benefited by the estate such as an heir or
one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21
SCRA 1369/1967).  Petitioner is not the appointed executor, neither a devisee or a
legatee there being no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to receive (Article 782, Civil
Code).  At the outset, he appears to have an interest in the will as an heir, defined under
Article 782 of the Civil Code as a person called to the succession either by the provision
of a will or by operation of law.  However, intestacy having resulted from
the preterition of respondent adopted child and the universal institution
of heirs, petitioner is in effect not an heir of the testator.  He has no legal standing to
petition for the probate of the will left by the deceased and Special Proceedings No.
591-A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of judicial authority (People v. Villanueva,
110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co
Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138
SCRA 587 [1985]).  It is axiomatic that the remedies of certiorari and prohibition are not
available where the petitioner has the remedy of appeal or some other plain, speedy
and adequate remedy in the course of law (D.D. Comendador Construction Corporation
v. Sayo (118 SCRA 590 [1982]).  They are, however, proper remedies to correct a
grave abuse of discretion of the trial court in not dismissing a case where the dismissal
is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137
[1983]).
Special Proceedings No. 591-CEB is for the probate of a will.  As stated by
respondent Court, the general rule is that the probate 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. Leonidas, 129 SCRA
522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute.  Under exceptional circumstances,
the probate court is not powerless to do what the situation constrains it to do and pass
upon certain provisions of the will (Nepomuceno v. Court of
Appeals, supra).  In Nuguid v. Nuguid the oppositors to the probate moved to dismiss
on the ground of absolute preterition.  The probate court acting on the motion held that
the will in question was a complete nullity and dismissed the petition without costs.   On
appeal the Supreme Court upheld the decision of the probate court, induced by practical
considerations.  The Court said:

"We pause to reflect.  If the case were to be remanded for probate of the will, nothing will
be gained.  On the contrary, this litigation will be protracted.  And for aught that appears
in the record, in the event of probate or if the court rejects the will, probability exists that
the case will come up once again before us on the same issue of the intrinsic validity or
nullity of the will.  Result:  waste of time, effort, expense, plus added anxiety.  These are
the practical considerations that induce us to a belief that we might as well meet head-on
the issue of the validity of the provisions of the will in question.  After all there exists
a justiciable controversy crying for solution."

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by

the surviving spouse was grounded on 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-CEB of the Regional Trial Court of Cebu on the following
grounds:  (1) petitioner has no legal capacity to institute the proceedings; (2) he is
merely a universal heir; and (3) the widow and the adopted
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. Leonidas, supra; Nuguid v. Nuguid, supra).  The remedies
of certiorari and prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies
of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v.
Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the
Court harkens to the rule that in the broader interests of justice, a petition
for certiorari may be entertained, particularly where appeal would not afford speedy and
adequate relief.  (Maninang v. Court of Appeals, supra).
 PREMISES CONSIDERED, the petition is 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. No. 47799, May 21, 1943 ]

ADMINISTRATION OF THE ESTATE OF AGRIPINO NERI Y CHAVEZ.
ELEUTERIO NERI ET AL., PETITIONERS, US. IGNACIA AKUTIN AND
HER CHILDREN, RESPONDENTS

DECISION

MORAN, J.:

This is where the testator in his will left all  his property by universal to the
children  by his second marriage, the herein respondents,  with preterition of the
children by his first marriage, the herein petitioners.  This Court annulled the institution
of heirs and declared a total intestacy.

A motion for reconsideration has been filed by the respondents on the  ground (1) that
there is no preterition as to the children of the first marriage who have received their
shares in the property left by the testator, and (2) that, even assuming that there has
been a preterition, the effect would not be the annulment of the institution of heirs but
simply the reduction of the bequest made  to them.

1. The findings of the trial  court and those of the Court of Appeals are contrary to
respondents' first  contention.  The children of the first marriage are Eleuterio, Agripino,
Agapita, Getulia (who died a little less  than  eight years before the death of her father
Agripino Neri, leaving seven children), Rosario  and Celerina.

As to Eleuterio, the trial court said that "it  is not, therefore, clear that Eleuterio has 
received his share out of the properties left by his father."  It is true that Eleuterio
appears to have received, as a donation from his father, parcel of land No. 4, but the
question of whether there has been a donation or not is apparently left for decision in
an independent action, and to that effect  Ignacia Akutin has been appointed special
administratrix for the purpose of instituting such action.
With respect to Agripino and Agapita the parcels of land which they have occupied,
according to the trial Court, "are a part of public land which had been occupied by
Agripino Neri Chaves, and, therefore, were not a part of the estate of the latter.

Concerning  Getulia who died about eight years before the death of her father Agripino
Neri, the trial Court found that "neither Getulia  nor her heirs received any share of the 
properties.

And with respect to Rosario and Celerina, the trial Court said that "it does not appear
clear, therefore that Celerina and Rosario received their shares m the estate left by their
father Agripino Neri Chaves."

This is in connection with the property, real or personal, left by the deceased.  As to
money advances, the trial Court found:
"It is contended, furthermore, that the children of Agripino Neri Chaves in his first
mariage received money from their father.  It appears that Nemesio Chaves is indebted
in the amount of P1,000; Agripino, in the amount P500 as appears in Exibits 14 and 15.
Getulia, in the amount of P155 as appears in Exhibits 16, 17,  and 18; Celerina in  the
amount of P120 as appears in Exhibits 19,  19-A and 19-B"
From  these findings of the trial Court it is clear that Agapita, Rosario and the
children of Getulia had received from the, childrenof Getulia had received from the
testator no property whatsoever, personal, real or in cash.

But clause  8 of the  will  is invoked wherein the testator made the  statement that the
children by his first marriage had already received their shares in his property  excluding
what he had given them as aid during their financial troubles and the money they had
borrowed from him which he condoned in the will.  Since, however, this is an issue  of
fact tried by the Court of First Instance, and  we are reviewing the decision of the Court
of Appeals upon  a question of law regarding that issue, we can rely only upon the
findings of fact made by the  latter Court, which are as follows:
"Since  all the  parcels that corresponded to Agripino Neri y Chaves are now in 
the administrator's possession, as appears in the inventory filed in court, it is clear that
the property of the deceased has remained intact and that no portion thereof has been
given to the children of the first marriage.

"*      *      *      *      *      *      *      *      *      *

"It is stated by the court and practically admitted by the appellants that a child of the
first marriage named Getulia, or her heirs after her death, did not receive any share of
the property of her father."
It is true that  in  the  decision  of the Court of  Appeals there is  also the following
paragraph:
"As regards that  large  parcel of land  adjoining parcel No. 1, it is contended that
after the court had denied the registration thereof, Agripino Neri y Chaves abandoned 
the said land and that later on some of the  children of the first marriage possessed it,
thereby acquiring title and interest therein by virtue of occupation  Mid not through
inheritance It is not true  that this parcel containing 182.6373 hectares is now assessed
in the names of some of the  children  of the first marriage, for as shown on Tax
Declaration No. 9395, Exhibit 11-g, the owners of the property are Agapita Neri de
Chaves. y Hermanos.   Apparently, the said land is  still claimed to be the property not
only of the children of the first  marriage but also of those of the second marriage."
This paragraph is but a corroboration of the finding made by the Court of Appeals
that no property has ever been advanced by the testator to the children by his first
marriage.  The large parcel of land  adjoining parcel No. 1 was alleged by the children of
the second marriage to have been advanced by the testator to the children by his first
marriage; but the Court of Appeals belied this claim.   "It is not true," says that Court,
"that this parcel containing 182.6373 hectares is now assessed in  the names  of  some 
of the children of the first marriage, for as shown on Tax Declaration No. 9395, Exhibit
11-g, the owners  of the property are Agapita Neri  de Chaves y Hermanos,  that is, the
children  of both marriages.  And the Court of Appeals  added that "apparently, the said 
land  is  still claimed to  be the property  not only of the children  of the first marriage
but also of those of the second marriage, which  is another way of stating  that the
property could not have been  advanced by the  testator  to the children by the first
marriage for otherwise the children by the second marriage would not  ay a claim on it.

We conclude, therefore, that according to the findings of fact made by the Court of
Appeals,  the testator left all his property by universal title  to the children by his second
marriage, and that without expressly disinheriting the children by his first marriage, he
left nothing  to them or, at least, some of  them.  This is, accordingly, a case of
preterition governed by article 814 of the Civil Code, which provides that the institution
of  heirs shall be annulled and intestate succession should be declared open.

2. Upon  the   second  question  propounded in the motion for reconsideration,

respondents seem to agree that article 814 of the  Civil Code is the law applicable but, in
their discussion as to the effect of preterition,  they confuse article 814 with articles 817
and  851  and other articles of the Civil Code. These three articles read:
"ART.  814. The preterition of  one or of all the forced heirs in the direct line,
whether living at the execution of the will or born after death of the testator, shall annul
the institution of heirs; but the legacies and betterments shall be valid in  so far as they
are not inofficious.

"The pretertion of the widower or widow does not annul the institution; nut the person
omitted shall retain all the rights granted to him by articles 834, 835, 836, and 837 of
this Code.

"If the forced heirs  omitted die before the testator, the institution shall become
operative."

"ART. 817. Testamentary dispositions which diminish the legitime of the forced heirs 
shall be reduced on petition of the same in so far as they are inofficious  or excessive."

"ART. 851. Disinheritance made without a statement of the cause, or for a cause the
truth of which, if contested, is not shown, or which  is not one of those  stated  in the
four following articles, shall annul the institution of heirs in so far as it is prejudicial to
the disinherited person; but the legacies, betterment, and other testamentary
dispositions shall be valid in so far as they are not prejudicial to said legitime."
The following example will make the question clearer: The testator has two
legitimate sons, A and B, and in his will he leaves all his property to A with total
preterition of B.  Upon these facts, shall we  annul entirely the institution of heir in favor
of A and declare a total intestacy, or shall we merely refuse the bequest left to A, giving
him two-thirds, that is, one third of free disposal and one-third of betterments, plus
one-half of the other third as strict legitime, and awarding B only the remaining one-half
of the strict legitime?  If we do the first, we apply article 814; if the second, we apply
articles 851 or 817.  But article 851  applies only in cases of unfounded  disinheritance, 
and  all  are agreed that the present case is not one of disinheritance but of preterition. 
Article 817 is merely a general rule inapplicable to specific cases provided by law, such
as that of preterition or disinheritance.  The meaning of articles 814 and 851, their
difference and philosophy, and their relation to  article 817, are lucidly explained by
Manresa in the following manner:
 "Cuando la legitima no  es usufructuaria, como ocurre en  los demas casos,  la
pretericion no puede menos de alterar esenciahnente la institucioin de  heredero.  Esta
ha de anularse, pero en todo  o en parte, esto es, solo en cuanto perjudique  el 
derecho  del legitimario preterido?  El articulo 814 opta por la primera solucion, ya que 
hemos de atenernos estrictamente al texto de la ley; mientras que el articulo 851, en
casos analogos, opta por la segunda.

"En efecto; la desheredacion  sin justa causa no produce el efecto de desheredar.  El

heredero conserva derecho  a su legitima, pero nada mas que a su legitima.  Los
legados, las mejoras, si las hay,  y  aun la institucidn de heredero, son validas  en cuanto
no  perjudiquen al heredero forzoso.

"La diferencia  se notara perfectamente con un ejemplo.  Un solteron, sin descendientes

ni ascendientes legitimos, hace testamento instituyendo por heredero a un pariente
lejano.  Despues reconoce un hijo natural, o se  casa y tiene descendencia, y  muere sin
modificar su disposition testamentaria.  A su  muerte,  el hijo natural, o los legitimos,
fundandose en la nulidad total de la  institucidn,  con arreglo al articulo 814, piden  toda 
la herencia. En  caso del articulo 851 sdlo  podrian  pedir su legitima.  Preteridos,
adquieren derecho a todo; desheredados, solo les corresponde un terdo o dos tercios,
segun el caso.

"En el fondo la cuestidn es identica.  El testador puede  siempre  disponer a  su arbitrio

de la parte libre.   El legitimario, contra la voluntad expresa del  testador, solo tiene
derecho a su legftima. Preterido o desheredado  sin justa causa la legitima es suya.
Desheredado o preterido, la portion libre no  le corresponde, cuando el testador la 
asigna a otro. Logicamente no cabe que el legitimario, en caso de pretericion, reciba 
todos los  bienes cuando el testador  haya dispuesto de  ellos  a titulo de herencia, y no
cuando haya dispuesto del tercio libre  a titulo de legado.

"Cual es la razon de esta diferencia?   En la generalidad de los casos puede fundarse el

precepto en  la presunta  voluntad del  testador  Este, al  desherecter, revela que existe
alguna razon o motivo que le impulsa a obrar asi; podra no ser bastante para privar al
here dero  de su legitima, pero siempre ha de estimarse sufitiente  para  privarle  del
resto de  la herencia, pues sobre esta no puede pretender ningun derecho el
desheredado.  El heredero pretendo no ha sido privado expresamente de nada; el
testador, en los casos normales, obra si por descuido o por error.  Hemos visto un
testamento en el que no se instituia heredera a una hija monja, por creer la testadora
que no podia heredar. En otros casos se ignora la existance de un descendiente o de un
ascendiente.  Cuando el preterido es una persona que ha nacido despues de muerto el
testador o despues de hecho  el testamento, la razon es aun mis clara; la omision ha de 
presumirse involuntaria;  el testador debe suponerse que hubiera instituido  heredero a
esa persona si hubiera existido al otorgarse el testamento, y no solo en cuanto a la
legitima, sino en toda la nerencia, caso de no  haber otros herederos forzosos, y en
iguales terminos que los demas herederos  no mejorados de un modo expreso.

"La opinion contraria puede tambien defenderse suponiendo que la ley ariula el titulo
de heredero,  mas no en absolute la participacion en el caudal; que aso como al
exceptuar la mejora se refiere a la parte libre de que haya dispuesto el mismo testador,
considerando  como un simple legatano de esa porcion a la Persona a quien el testador
designo como herederos Abonaria esta Solucion el articulo 817, al declarar que las
disposiciones testamentarias que menguan la legitima de los herederos  forzosos han 
de reducirse en cuanto fueren inoficiosas, pues  amparado  en este articulo el heredero
voluntano, puede pretender que la disposicion a su favor sea respetada cuanto no
perjudxque a las legitamas.

"La junsprudencia no ha resuelto de frente este cuestion, porque no se le  ha

presentado en lo? terminoa propuestos; pero ha demostrado su cnteno.

"Hemos  citado las Resoluciones de la Direccion de 30 de octubre de 1896 y de 20 de

mayo de 1898.  En la primera se decide con valentia, con arreglo al texto  expreso del
articulo 814;  la institution de heredero se anula en absoluto, y se abre para toda la
herencia la sucesion intestada.  En la segunda se rehuye la cuestion,fundandose en
circunstancias secundanas. En el articulo siguiente examinaremos la sentencia de 16  de 
enero de  1895.

"La interpretacion que rectamente se desprende del art. 814, es  la de que solo valen, y
eso en cuanto no sean inoficiosas, las disposiciones kechas a titulo de legado o mejora. 
En cuanto a la institucidn de heredero, se anula. Lo que se anula deja de existir, en todo,
o en parte?   No se añade Iimitacion alguna, como en el articulo 851, en el que se
expresa que se anulara la institution de heredero en cuanto perjudique a la legitima  del
desheredado. Debe, pues. entenderse que la antilacwSn es completa o total, y que este
arttculo, como especial en el caso que  le motiva, rige con preferencia at 817." (6
Manresa, 3.a ed., pags. 351-353.)(Italics supplied).
 The  following opinion of  Sanchez Roman is to  the same effect and dispels all
possible doubt on the matter:
"La consecuencia de  la anulacion o nulidad de la institution de heredero por
pretericion de uno, varies o todos los forzosos en linea recta, es la apertura de la
sucesion intestada, total o parcial.  Sera total, cuando el testador que comete la
pretericion, hubiere dispuesto de todos los bienes por titulo universal de herencia en
favor de  los herederos  instituidos, cuya  institucion se anula, porque asi  lo exige la
generalidad  del precepto legal del articulo 814, al determinar, como efecto de la
pretericion, el de que 'anulara la institucion de heredero'.   Cierto es que la  pretericion
esta introducida, como remedio juridico,  por  sus efectos, en nombre y para garantia de
la integridad de la legitima de los herederos forzosos y como consecuencia del precepto
del 813,  de que 'el testador no podra privar a los herederos de su legitima,  sino en  los
casos expresamente determinados por la ley', que son los de desheredacion con justa
causa.

"Cierto es, tambien,  que en la desheredacion es muy otro el criterio del Codigo y que su
formula  legal,  en  cuanto a  sus efectos, es de alcance mas limitado, puesto que,
conforme al articulo  851, la  desheredacion hecha  sin condiciones de validez, 'anulara
la institucion de heredero', lo mismo que la pretericion, pero solo 'en cuanto perjudique
la desheredado': es decir, nada mas que en lo que menoscabe o desconozca  sus 
derechos a la legitima, y, por tanto en la parte cuota o cantidad que represente en el
caudal hereditario, atendida la condicion de legitimario del desheredado  de modo ilegal
e ineficaz; salvedad o limitation de  los efectos de nulidad de  la institucion hecha en el
testamento, que no existe, segun se ha visto en el 814, por el que se declara, en forma
general e indistinta, que anulara la institution de heredero sin ninguna atenuacion
respecto de que perjudique o no, total o parcialmente, la cuantia de la legitima del
heredero forzoso en linea recta,  preterido.

"El resultado de ambos criterios y  formulas legales, manifestamente distintas, tiene que
ser muy diverso.  En el caso de la pretericion, propiamente tal o total—pues si fuera
parcial y se la dejara algo al heredero forzoso por cualquier titulo, aunque ese  algo  no
fuere suficiente al pago  de sus derechos  de legitima, no seria caso de pretericion,
regulado por el articulo  814, sino  de complemento, regido por el 815 y la institution  no
se anularia sino que se modificaria o disminuiria en lo necesario para dicho
complemento—o de institucion de he redero en toda la herencia, al anularse la
institution, por efecto de la pretericion, se abre la intestada en favor del preterido o
preteridos, respecto de toda la herencia, tambien; mientras que en la caso de
desheredacion y de institucion en ia totalidad de la herencia a favor de otra persona,
solo se anulara en la parte precisa para  no Perjudicar la legitima del desheredado, que
aun siendo en este caso la lata, si no hubo mejoras, porque no se establecieron p
porque los instituidos eran herederos voluntaries, dejaria subsistence la institution en la
parte correspondieiite al tercio de libre dispostcion   Asi es que los preteridos, en el
supuesto mdicado, suceden abintestato en todo, en concurrence con los demas
herederos forzosos o llamados por la ley al abintestato; los desheredados, unicamente
en dos tercios o en uno tan solo, en la hipotesis de haberse ordenado mejoras.

"En cambio, ni por la desheredacion ni por la preterici6n pierde su fuerza el testamento,

en cuanto a dicho tercio libre, si se trata descendientes; o la mitad, si se trata de
ascendientes, ya desheredados, ya preteridos, porque, ni por el uno ni por el otro
medio, se anula mas que la institucion de heredero, en general, y totalmente por la
preterieion, y solo en cuanto perjudique a la legitima del desheredado por la
desheredacion;  pero subsistiendo, en ambos casos, todas aquellas otras disposiciones
que no se refieren a la  institucion de heredero y se hallen dentro del limite cuantitativo
del tercio o mitad de libre disposition, segun que se trate de descendientes  o
ascendientes,  preteridos o desheredados.

"La invocation del articulo 817 para modificar estos efectos de la pretericion,
procurando limitar la anulacion de la institucion  de heredero  solo en cuanto perjudique
a la legitima,   fundandose en que dicho articulo establece que 'las disposiciones
testamentarias que menguan  la legitima de  los  herederos forzosos se reduciran, a
petition de estos, en  lo que fueren inoficiosas  o excesivas,' no es aceptable ni puede
variar aquellos resultados, porque es un precepto de caracter general en toda otra clase
de disposiciones testamentarias que produzcan el efecto de menguar la legitima, que no
puede anteponerse, en su aplicacion, a las de indole especial para senalar  los efectos de
la pretericion o de la desheredacion, regulados privativa y respectivamerite por los
articulos 814 y 851.

"No obstante la pretericion, 'valdran las man das y legados  en cuanto no sean
inoficiosas.' El texto  es terminante y  no necesita mayor explicacion, despues de lo
dicho, que su propia  letra, a no ser para  observar que constituye una confirmation
indudable de los efectos de la pretericion, en cuanto akanzan solo, pero totalmente, a la
anulacion de la institucion de heredero, pero no a la de las mandas y mejoras en cuanto
no sean inoficiosas o perjudiquen a la legitima de los preteridos; calificativo de tales,
como sinonimo legal de excesivas, que en otros articulos, como el 817, establece la ley."
(6 Sanchez Roman,  Volumen 2.o  pags.  1140-1141)
These comments should be  read  with care if we are to avoid misunderstanding,
Manresa, for instance, starts expounding the meaning of the law with an illustration. He
says that in case of preterition (article 814), the nullity of the institution of heirs is total,
whereas in case of disinheritance (article 851), the nullity is  partial, that is, in so far as
the institution affects the legitime of the disinherited heirs.  "Preteridos, adquieren
derecho a  todo; desheredados solo les corresponde  un tercio o dos tercios, segtin el
caso."   He then proceeds to comment upon the wisdom of the distinction  made by law,
giving two views thereon.  He first lays the view contrary to the distinction made by law,
then the arguments in support  of the  distinction, and lastly a  possible defense against
said arguments.  And after stating that the Spanish jurisprudence has  not as yet decided
squarely the  question, with an allusion to  two  resolutions of the  Spanish
Administrative  Direction, one in favor of article 814 and another  evasive, he concludes
that the  construction which may rightly be given to article 814 is that in case of
preterition, the institution of heirs is null in toto whereas in case of disinheritance  the
nullity is limited to that portion of the legitime of which the disinherited heirs have been
illegally deprived. He further makes it clear that  in  cases of preterition, the property
bequeathed by universal  title  to  the  instituted  heirs should not be merely reduced
according to article 817, but instead, intestate succession should  be  opened in
connection therewith under article 814, the reason being  that article 814, "como
especial en el caso que le motiva, rige con preferencia al 817."  Sanchez  Roman  is of
the  same opinion when he said:  "La invocation del articulo 817 para modificar  estos
efectos de la pretericion, procurando limitar la anu lacion de la institucion de heredero
solo en  cuanto Perjudique a la legitima, fundandose en  que dicho articulo  establece
que 'las disposiciones testamentarias que menguan la legitima de los herederos forzosos
se reduciran, a petition de estos, en lo que fueren inoficiosas o excesivas,' no es
aceptable ni puede variar aquellos resultados, porque es  un precepto  de  cardcter
general en toda otra  clase de disposiciones testamentarias  que produzcan el efecto de 
menguar  la legitima, que  no puede anteponerse, en su aplicacion, a las de indole
especial para senalar los efectos de  la pretericion o de la desheredacion, regulados
privativa y respectivamente por los articulos 814 y 851."

Of course,  the  annulment of the institution of heirs in cases of preterition does not 
always carry with it the ineffectiveness of the whole will.  Neither Manresa nor Sanchez 
Roman nor this Court has ever said so.  If, aside from  the institution of heirs, there  are
in the will provisions leaving to the heirs so instituted or to other persons  some specific
properties in the form of legacies or mejoras, such testamentary provisions shall be
effective and the legacies and mejoras shall  be respected in so far as they are not
inofficious or excessive, according to article 814.  In the instant case, however,  no
legacies or mejoras are  provided in the will, the whole property  of  the deceased 
having been left by universal title to the children of the second marriage.  The effect,
therefore, of annulling the institution of heirs will be necessarily the opening of a total
intestacy.

But the  theory is advanced  that the bequest made by universal title in favor of the
children  by the second marriage should  be treated as legado and mejora and,
accordingly, it must not  be entirely annulled but merely reduced.  This theory, if
adopted, will result in  a  complete abrogation of  articles 814 and 851  of the Civil
Code.   If every  case  of institution of heirs may be made to fall into the concept of
legacies and betterments reducing the bequest accordingly, then the provisions of
articles  814 and 851 regarding total or partial nullity of the institution, would be
absolutely meaningless and will never have any application at all.  And the remaining
provisions contained in said article concerning  the  reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by  article 817. 
Thus,  instead of construing, we would be destroying integral provisions of the Civil
Code.

The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution  of heirs from legacies and betterments, and a general from a
special provision.   With  reference to article 814, which  is the only provision material 
to the  disposition of this case, it must  be observed that the institution of heirs is 
therein dealt with as a thing separate and distinct from legacies or betterment.  And
they are separate and distinct not only because they are distinctly and separately
treated  in  said article but because  they are  in themselves different. Institution  of
heirs is a bequest by universal title of property that is undetermined.  Legacy refers to
specific property bequeathed by a particular or special title. The first is also  different
from  a betterment which should  be made expressly as such (article 828).   The only
instance of implied  betterment  recognized by law is where legacies are made which
cannot be included in the free portion (article 828). But again an institution of heirs
cannot be taken as a legacy.

It is clear, therefore, that article 814 refers  to two different things which are the two
different objects of its two different provisions.  One of these objects cannot be  made 
to merge in the other without mutilating the whole article with all its multifarious
connections with a great number of provisions spread throughout the Civil Code on the
matter of  succession.  It should be borne in mind,  further, that although article  814
contains two different provisions, its special purpose is to establish a specific rule
concerning  a specific testamentary provision, namely, the institution of heirs in a case
of preterition.  Its other provision regarding the validity of legacies and betterments if
not inofficious is a mere reiteration of the general rule contained in other provisions
(articles 815 and 817)  and signines merely that it also  applies in cases of preterition.  As
regards testamentary dispositions in  general, the  general  rule is that all  "testamentary
dispositions which diminish the legitime of the forced heirs shall be reduced on petition
of the same in so far as they are inofficious or excessive" (article 817),  But this general
rule does not apply to the specific  instance of a testamentary disposition containing an
institution of heirs in a case of  preterition, which is made the main and specific subject
of article 814.  In such instance, according  to article 814,  the testamentary disposition
containing the institution of heirs should be not only reduced, but annulled in its
entirety and all  the forced heirs,  including  the  omitted  ones, are entitled to inherit in
accordance with the law of intestate succession.  It is thus evident that, if, in construing
article 814, the institution of heirs therein dealt with is to be treated as legacies  or
betterments, the special object of said article would be destroyed, its specific purpose 
completely defeated, and in that wise the special rule therein established would be
rendered nugatory.   And this is contrary to the most elementary rule of statutory
construction.  In construing several provisions of a particular  statute,  such 
construction shall be adopted as will give  effect  to all, and when general and particular 
provisions are inconsistent,  the latter shall prevail over the former.  (Act No. 190, sees.
287 and 288.)

The question  herein  propounded has been Squarely decided by the Supreme Court of
Spain in  a  case  wherein a bequest by universal title was made with preterition of heirs
and the theory was advanced that the instituted heirs should be treated as legatarios. 
The Supreme Court of Spain said:
"El articulo 814 que preceptia en tales casos de  pretericion la nulidad de la
institucion  de heredero, no consiente interpretacion alguna favorable a la persona
institufda en el sentido antes expuesto, aun cuando parezca, y en algun caso pudiera
ser, mas o menos equitativa, porque una nulidad no  signinca en Derecho sino  la
suposicion de que el hecho o el acto no se ha realizado, debiendo, por lo tanto,
procederse sobre tal base o supuesto, y consiguienemente,  en  un testamento donde
falte la institucion, es obligado llamar a los herederos forzosos en todos caso, como
habria que llamar a los de otra clase, cuando el testador no hubiese distribuido todos
sus bienes en legados, siendo tanto mas  obligada  esta consecuencia legal cuanto que,
en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad de quien testa  si  esta voluntad
no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y
eficaz, por lo que constituiria una mterpretacion arbitraria,  dentro  del derecho 
positivo, reputar como legatario a un herederocuya institution fuese anulada con
pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun  cuando
asi  fuese, sera  esto razon para modificar la ley, pero que no autoriza a una
interpretacion contraria a sus terminos y a los principios que  informan la
testamentificacion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay razon para convertir este Juicio en  regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que  el legislador quiere establecer."
(6 Sanchez Roman, Volumen 2.o, p. 1138.)
It is maintained that the word "heredero"  under the Civil  Code, is  not
synonymous with the term "heir" under the Code  of  Civil  Procedure,  and  that  the
"heir" under the latter Code is no longer personally liable for the debts of the deceased 
as was the  "heredero" under the Civil Code, should his acceptance be pure and simple,
and from  all these the conclusion is drawn  that  the provisions of article 814 of the Civil
Code regarding the total nullity of the institution of heirs has become obsolete.  This 
conclusion is erroneous.  It confuses form with substance.  It must be observed, in this
connection, that  in construing and applying a provision of the Civil Code, such meaning
of its words and phrases as has been intended by the framers thereof  shall be adopted. 
If thus  construed it is inconsistent with the provisions of the Code of Civil Procedure,
then  it shall be deemed repealed;  otherwise it is in force.  Repeals by implication are
not favored by the courts and when there are two acts upon the same subject, effect
should be given to both if possible (Posadas vs. National City Bank, 296  U. S., 497).  The
word "heir" as used in article 814 of the Civil Code may not have the meaning that it has
under the Code of Civil Procedure, but this in no wise  can prevent a bequest from being
made by universal title as is m substance the subject-matter of article 814 of the Civil
Code. Again, it may also be true that heirs under the Code of Civil Procedure  may
receive  the bequest only after payment of debts  left by the deceased and not befOre as
under the Civil Code but thls mav have a bearing only upon the question as to  when
succession  becomes effective and can in no way destroy  the fact that  succession may
still be by universal or Special title.  Since a bequest may still be made by universal title
and with preterition of forced heirs, its nullity as provided in article 814 still applied
there being nothing inconsistent with it in the Code of Civil Procedure.  What is
important and is the basis for its nullity is the nature and effect of the  bequest and not
its Possible name nor the moment of its effectiveness under the Code of Civil Procedure.

 Furthermore, there were in  the Code of Civil Procedure sections Nos.  755 and 756
which  read:
"SEC. 755. Share of  child  born after making will.—When a child of a testator is
born after  the making of a will, and no provision is therein mad e for him, such child
shall have the  same share in the estate of the testator as if he had  died intestate; and
the share of such   child shall be  assigned to him as  in cases of intestate estates, unless
it is apparent from the will that it was the intention of the testator that no provision 
should be made  for such child."

"SEC  756. Share of child or issue of child omitted from will.—When a testator omits to  
provide in his will for any of his children, or for issue of a deceased  child, and it  appears
that such omissio was made by mistake, or accident, such child, or the issue of such
child, shall have the same share in the estate of the testator as if he had died intestate,
to be  assigned to him as in the case of intestate estates."
It is these provisions of the Code of Civil Procedure that have affected
substantially articles 814 and 851 of the Civil Code, but  they have been expressly
repealed by Act No. 2141, section 1 of which reads as follows :
"Sections seven hundred and fifty-five, seven hundred and fifty-six, seven
hundred and fifty-seven, seven hundred and fifty-eight, and seven hundred and sixty of
Act Numbered One hundred and ninety, entitled 'An Act providing a Code of Procedure
in Civil Actions and Special Proceedings in the Philippine Islands are hereby
repealed and such, provisions of the Civil Code as may have been amended or repealed
by said sections: arehereby restored to full force and effect."  (Italics ours.)
Among the provisions of the Civil Code which are thus expressly  restored to full
force are undoubtedly articles 814 and 851.  There can  be no possible doubt, therefore,
that those two articles are in force.

Article 1080 of the Civil Code that is also invoked  deserves  no consideration except for
the observation that it has no relevancy in the instant case.

Our attention is directed to  the case of Escuin  vs. Escuin (11  Phu., 332).  We have 
never lost sight of  the  ruling  laid down in that case which has been reiterated in
Elzeazar vs. Eleazer (37 Off. Gaz., p. 1782).  In  the Escuin case, the deceased left all his 
property to  his natural father (not a forced heir)  and his wife  Ozaeta, with total
preterition of an acknowledged natural child;  and, in the Eleazar case the deceased left
all his property  to a friend with  total preterition of his father  and wife.  Without
reconsidering the correctness of the ruling laid down in these two cases, we will note
that the doctrine stands on facts which are different from the facts  in the present case. 
There is certainly a difference between a case of preterition in which the whole property
is left to a mere friend and a case of preterition in which  the whole property is left to
one or some forced heirs.  If the testamentary  disposition   be  annulled totally in the 
first case, the effect would be a total deprivation of the friend of his share in the
inheritance.  And this is contrary to the manifest intention of the testator.  It may fairly
be presumed that, under such circumstances, the testator would at least give his friend
the portion of free disposal.  In the second case,  the total nullity of the testamentary
disposition would have the effect, not of depriving totally the instituted heir of his share
in the inheritance, but of placing him and the other forced heir of his the basis of
equality. This is also in consonance with the presumptive intention of the testator. 
Preterition, generally  speaking, is due merely to mistake or inadvertence without which
the testator may be presumed to treat alike  all his children.

And speciany is this true in the instant case where the testator omitted the children by
his first marriage upon the erroneous beIief that he had giyen them already more shares
in his property than those given to  the children by his second marriage.  It was
therefore,  the thought of the testator that the children by his first marriage shoui,i not
receive less than the children  by his second marriage, and to that effect is the decision
of this Court sought to be reconsidered.  Motion for reconsideration is hereby denied.

SECOND DIVISION
[ G.R. No. 198994, February 03, 2016 ]
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 hex 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.
xxx

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.

We will not entertain the petitioner's factual allegation that Francisco was not preterited
because this Court is not a trier of facts. Furthermore, the CA concurred with the RTC's
conclusion. We see no cogent reason to deviate from the factual findings of the lower
courts.

The remaining question is whether it was proper for the RTC to (1) pass upon the
intrinsic validity of the will during probate proceedings and (2) order the case to proceed
intestate because of preterition.
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 determine the
will's formal validity and due execution.[8] However, 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. 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 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.

On the other hand, grave abuse of discretion is the capricious and whimsical exercise of
judgment equivalent to an evasion of positive duty, or a virtual refusal to act at all in
contemplation of the law.[17] It is present when power is exercised in a despotic manner by
reason, for instance, of passion and hostility. Morales failed to show that the RTC acted
in such a capricious and despotic manner that would have warranted the CA's grant of her
petition for certiorari. On the contrary, the RTC acted appropriately in accordance with
the law and jurisprudence.

WHEREFORE, the petition is DISMISSED. Costs against the petitioner.

SO ORDERED.