Supreme Court
Manila
THIRD DIVISION
HEIRS OF POLICRONIO M.
URETA, SR., namely: CONRADO
B. URETA, MACARIO B. URETA,
GLORIA URETA-GONZALES,
ROMEO B. URETA, RITA URETASOLANO, NENA URETATONGCUA, VENANCIO B.
URETA, LILIA URETA-TAYCO,
and HEIRS OF POLICRONIO B.
URETA, JR., namely: MIGUEL T.
URETA, RAMON POLICRONIO
T. URETA, EMMANUEL T.
URETA, and BERNADETTE T.
URETA,
Petitioners,
- versus HEIRS OF LIBERATO M. URETA,
namely: TERESA F. URETA,
AMPARO URETA-CASTILLO,
IGNACIO F. URETA, SR.,
EMIRITO F. URETA, WILKIE F.
URETA, LIBERATO F. URETA,
PARADERO, CARMENCITA P.
PERLAS, CRISTINA P.
CORDOVA, EDNA P. GALLARDO,
LETICIA P. REYES; NARCISO M.
URETA;
VICENTE M. URETA;
HEIRS OF FRANCISCO M.
URETA, namely: EDITA T.
URETA-REYES and LOLLIE T.
URETA-VILLARUEL; ROQUE M.
URETA; ADELA URETAGONZALES; HEIRS OF
INOCENCIO M. URETA, namely:
BENILDA V. URETA, ALFONSO V.
URETA II, DICK RICARDO V.
URETA, and ENRIQUE V. URETA;
MERLINDA U. RIVERA; JORGE
URETA; ANDRES URETA,
WENEFREDA U. TARAN; and
BENEDICT URETA,
Petitioners,
- versus
HEIRS OF POLICRONIO M.
URETA, SR., namely: CONRADO
B. URETA, MACARIO B. URETA,
GLORIA URETA-GONZALES,
ROMEO B. URETA, RITA URETASOLANO, NENA URETATONGCUA, VENANCIO B.
URETA, LILIA URETA-TAYCO,
and HEIRS OF POLICRONIO B.
URETA, JR., namely: MIGUEL T.
URETA, RAMON POLICRONIO
T. URETA, EMMANUEL T.
URETA, and BERNADETTE T.
URETA,
Present:
VELASCO, JR., J., Chairperson,
PERALTA,
ABAD,
MENDOZA, and
SERENO, JJ.
Promulgated:
Respondents.
x--------------------------------------------------x
DECISION
MENDOZA, J.:
These consolidated petitions for review on certiorari under Rule 45 of
the 1997 Revised Rules of Civil Procedure assail the April 20, 2004
Decision[1] of the Court of Appeals (CA), and its October 14, 2004
Resolution[2] in C.A.-G.R. CV No. 71399, which affirmed with modification
the April 26, 2001 Decision[3] of the Regional Trial Court, Branch 9, Kalibo,
Aklan (RTC) in Civil Case No. 5026.
The Facts
In his lifetime, Alfonso Ureta (Alfonso) begot 14 children, namely,
Policronio, Liberato, Narciso, Prudencia, Vicente, Francisco, Inocensio,
Roque, Adela, Wenefreda, Merlinda, Benedicto, Jorge, and Andres. The
children of Policronio (Heirs of Policronio), are opposed to the rest of
Alfonsos children and their descendants (Heirs of Alfonso).
Alfonso was financially well-off during his lifetime. He owned several
fishpens, a fishpond, a sari-sari store, a passenger jeep, and was engaged in
the buying and selling of copra. Policronio, the eldest, was the only child of
Alfonso who failed to finish schooling and instead worked on his fathers
lands.
Sometime in October 1969, Alfonso and four of his children, namely,
Policronio, Liberato, Prudencia, and Francisco, met at the house of Liberato.
Francisco, who was then a municipal judge, suggested that in order to reduce
the inheritance taxes, their father should make it appear that he had sold
some of his lands to his children. Accordingly, Alfonso executed four
(4) Deeds of Sale covering several parcels of land in favor of Policronio,
[4]
Liberato,[5]Prudencia,[6] and his common-law wife, Valeriana Dela Cruz.
[7]
The Deed of Sale executed on October 25, 1969, in favor of Policronio,
covered six parcels of land, which are the properties in dispute in this case.
Since the sales were only made for taxation purposes and no monetary
consideration was given, Alfonso continued to own, possess and enjoy the
lands and their produce.
When Alfonso died on October 11, 1972, Liberato acted as the administrator
of his fathers estate. He was later succeeded by his sister Prudencia, and then
by her daughter, Carmencita Perlas. Except for a portion of parcel 5, the rest
of the parcels transferred to Policronio were tenanted by the Fernandez
Family. These tenants never turned over the produce of the lands to
Policronio or any of his heirs, but to Alfonso and, later, to the administrators
of his estate.
Policronio died on November 22, 1974. Except for the said portion of
parcel 5, neither Policronio nor his heirs ever took possession of the subject
lands.
On April 19, 1989, Alfonsos heirs executed a Deed of Extra-Judicial
Partition,[8] which included all the lands that were covered by the four (4)
deeds of sale that were previously executed by Alfonso for taxation purposes.
Conrado, Policronios eldest son, representing the Heirs of Policronio, signed
the Deed of Extra-Judicial Partition in behalf of his co-heirs.
After their fathers death, the Heirs of Policronio found tax declarations in his
name covering the six parcels of land. On June 15, 1995, they obtained a
copy of the Deed of Sale executed on October 25, 1969 by Alfonso in favor
of Policronio.
Not long after, on July 30, 1995, the Heirs of Policronio allegedly learned
about the Deed of Extra-Judicial Partition involving Alfonsos estate when it
was published in the July 19, 1995 issue of the Aklan Reporter.
Believing that the six parcels of land belonged to their late father, and
as such, excluded from the Deed of Extra-Judicial Partition, the Heirs of
Policronio sought to amicably settle the matter with the Heirs of Alfonso.
Earnest efforts proving futile, the Heirs of Policronio filed a Complaint for
Declaration of Ownership, Recovery of Possession, Annulment of
Documents, Partition, and Damages[9] against the Heirs of Alfonso before the
RTC on November 17, 1995 where the following issues were submitted: (1)
whether or not the Deed of Sale was valid; (2) whether or not the Deed of
Extra-Judicial Partition was valid; and (3) who between the parties was
entitled to damages.
The Ruling of the RTC
On April 26, 2001, the RTC dismissed the Complaint of the Heirs of
Policronio and ruled in favor of the Heirs of Alfonso in a decision, the
dispositive portion of which reads:
WHEREFORE, the Court finds that the preponderance of
evidence tilts in favor of the defendants, hence the instant case is
hereby DISMISSED.
The counterclaims are likewise DISMISSED.
With costs against plaintiffs.
SO ORDERED.
The RTC found that the Heirs of Alfonso clearly established that the
Deed of Sale was null and void. It held that the Heirs of Policronio failed to
rebut the evidence of the Heirs of Alfonso, which proved that the Deed of
Sale in the possession of the former was one of the four (4) Deeds of Sale
executed by Alfonso in favor of his 3 children and second wife for taxation
purposes; that although tax declarations were issued in the name of
Policronio, he or his heirs never took possession of the subject lands except a
portion of parcel 5; and that all the produce were turned over by the tenants
to Alfonso and the administrators of his estate and never to Policronio or his
heirs.
The RTC further found that there was no money involved in the sale.
Even granting that there was, as claimed by the Heirs of Policronio,
2,000.00 for six parcels of land, the amount was grossly inadequate. It was
also noted that the aggregate area of the subject lands was more than double
the average share adjudicated to each of the other children in the Deed of
Extra-Judicial Partition; that the siblings of Policronio were the ones who
shared in the produce of the land; and that the Heirs of Policronio only paid
real estate taxes in 1996 and 1997. The RTC opined that Policronio must
have been aware that the transfer was merely for taxation purposes because
he did not subsequently take possession of the properties even after the death
of his father.
The Deed of Extra-Judicial Partition, on the other hand, was
declared valid by the RTC as all the heirs of Alfonso were represented and
received equal shares and all the requirements of a valid extra-judicial
partition were met. The RTC considered Conrados claim that he did not
understand the full significance of his signature when he signed in behalf of
his co-heirs, as a gratutitous assertion. The RTC was of the view that when
he admitted to have signed all the pages and personally appeared before the
notary public, he was presumed to have understood their contents.
Lastly, neither party was entitled to damages. The Heirs of Alfonso
failed to present testimony to serve as factual basis for moral damages, no
document was presented to prove actual damages, and the Heirs of
Policronio were found to have filed the case in good faith.
The Ruling of the CA
Aggrieved, the Heirs of Policronio appealed before the CA, which
rendered a decision on April 20, 2004, the dispositive portion of which reads
as follows:
WHEREFORE, the appeal is PARTIALLY GRANTED. The
appealed Decision, dated 26 April 2001, rendered by Hon. Judge
Dean R. Telan of the Regional Trial Court of Kalibo, Aklan, Branch
9, is hereby AFFIRMED with MODIFICATION:
1.) The Deed of Sale in favor of Policronio Ureta, Sr.,
dated 25 October 1969, covering six (6) parcels of land is hereby
declared VOID for beingABSOLUTELY SIMULATED;
2.) The Deed of Extra-Judicial Partition, dated 19 April 1989,
is ANNULLED;
3.) The claim for actual and exemplary
are DISMISSED for lack of factual and legal basis.
damages
SO ORDERED.
The CA affirmed the finding of the RTC that the Deed of Sale was void. It
found the Deed of Sale to be absolutely simulated as the parties did not
intend to be legally bound by it. As such, it produced no legal effects and did
not alter the juridical situation of the parties. The CA also noted that Alfonso
continued to exercise all the rights of an owner even after the execution of
the Deed of Sale, as it was undisputed that he remained in possession of the
subject parcels of land and enjoyed their produce until his death.
Policronio, on the other hand, never exercised any rights pertaining to
an owner over the subject lands from the time they were sold to him up until
his death. He never took or attempted to take possession of the land even
after his fathers death, never demanded delivery of the produce from the
tenants, and never paid realty taxes on the properties. It was also noted that
Policronio never disclosed the existence of the Deed of Sale to his children,
as they were, in fact, surprised to discover its existence. The CA, thus,
concluded that Policronio must have been aware that the transfer was only
made for taxation purposes.
The testimony of Amparo Castillo, as to the circumstances
surrounding the actual arrangement and agreement between the parties prior
to the execution of the four (4) Deeds of Sale, was found by the CA to be
unrebutted. The RTCs assessment of the credibility of her testimony was
accorded respect, and the intention of the parties was given the primary
consideration in determining the true nature of the contract.
Contrary to the finding of the RTC though, the CA annulled the Deed
of Extra-Judicial Partition due to the incapacity of one of the parties to give
his consent to the contract. It held that before Conrado could validly bind his
co-heirs to the Deed of Extra-Judicial Partition, it was necessary that he be
clothed with the proper authority. The CA ruled that a special power of
attorney was required under Article 1878 (5) and (15) of the Civil
Code. Without a special power of attorney, it was held that Conrado lacked
the legal capactiy to give the consent of his co-heirs, thus, rendering the
Deed of Extra-Judicial Partition voidable under Article 1390 (1) of the Civil
Code.
As a consequence, the CA ordered the remand of the case to the RTC for the
proper partition of the estate, with the option that the parties may still
voluntarily effect the partition by executing another agreement or by
adopting the assailed Deed of Partition with the RTCs approval in either
case. Otherwise, the RTC may proceed with the compulsory partition of the
estate in accordance with the Rules.
With regard to the claim for damages, the CA agreed with the RTC
and dismissed the claim for actual and compensatory damages for lack of
factual and legal basis.
Both parties filed their respective Motions for Reconsideration, which
were denied by the CA for lack of merit in a Resolution dated October 14,
2004.
In their Motion for Reconsideration, the Heirs of Policronio argued that the
RTC violated the best evidence rule in giving credence to the testimony of
Amparo Castillo with regard to the simulation of the Deed of Sale, and that
prescription had set in precluding any question on the validity of the
contract.
The CA held that the oral testimony was admissible under Rule 130,
Section 9 (b) and (c), which provides that evidence aliunde may be allowed
to explain the terms of the written agreement if the same failed to express the
true intent and agreement of the parties thereto, or when the validity of the
written agreement was put in issue. Furthermore, the CA found that the Heirs
of Policronio waived their right to object to evidence aliunde having failed to
do so during trial and for raising such only for the first time on appeal. With
regard to prescription, the CA ruled that the action or defense for the
declaration of the inexistence of a contract did not prescribe under Article
1410 of the Civil Code.
On the other hand, the Heirs of Alfonso argued that the Deed of ExtraJudicial Partition should not have been annulled, and instead the preterited
heirs should be given their share. The CA reiterated that Conrados lack of
capacity to give his co-heirs consent to the extra-judicial settlement rendered
the same voidable.
Partition is valid. Thus, the assigned errors shall be discussed jointly and
in seriatim.
The Ruling of the Court
Validity of the Deed of Sale
Two veritable legal presumptions bear on the validity of the Deed of
Sale: (1) that there was sufficient consideration for the contract; and (2) that
it was the result of a fair and regular private transaction. If shown to hold,
these presumptions infer prima facie the transactions validity, except that it
must yield to the evidence adduced.[10]
As will be discussed below, the evidence overcomes these two
presumptions.
Absolute Simulation
First, the Deed of Sale was not the result of a fair and regular private
transaction because it was absolutely simulated.
The Heirs of Policronio argued that the land had been validly sold to
Policronio as the Deed of Sale contained all the essential elements of a valid
contract of sale, by virtue of which, the subject properties were transferred in
his name as evidenced by the tax declaration. There being no invalidation
prior to the execution of the Deed of Extra-Judicial Partition, the probity and
integrity of the Deed of Sale should remain undiminished and accorded
respect as it was a duly notarized public instrument.
The Heirs of Policronio posited that his loyal services to his father and his
being the eldest among Alfonsos children, might have prompted the old man
to sell the subject lands to him at a very low price as an advance inheritance.
They explained that Policronios failure to take possession of the subject
lands and to claim their produce manifests a Filipino family practice wherein
a child would take possession and enjoy the fruits of the land sold by a
parent only after the latters death. Policronio simply treated the lands the
same way his father Alfonso treated them - where his children enjoyed
usufructuary rights over the properties, as opposed to appropriating them
exclusively to himself. They contended that Policronios failure to take actual
possession of the lands did not prove that he was not the owner as he was
merely exercising his right to dispose of them. They argue that it was an
error on the part of the CA to conclude that ownership by Policronio was not
established by his failure to possess the properties sold. Instead, emphasis
should be made on the fact that the tax declarations, being indicia of
possession, were in Policronios name.
They further argued that the Heirs of Alfonso failed to appreciate that
the Deed of Sale was clear enough to convey the subject parcels of land.
Citing jurisprudence, they contend that there is a presumption that an
instrument sets out the true agreement of the parties thereto and that it was
executed for valuable consideration,[11] and where there is no doubt as to the
intention of the parties to a contract, the literal meaning of the stipulation
shall control.[12]Nowhere in the Deed of Sale is it indicated that the transfer
was only for taxation purposes. On the contrary, the document clearly
indicates that the lands were sold. Therefore, they averred that the literal
meaning of the stipulation should control.
The Court disagrees.
The Court finds no cogent reason to deviate from the finding of the
CA that the Deed of Sale is null and void for being absolutely simulated. The
Civil Code provides:
Art. 1345. Simulation of a contract may be absolute or relative. The
former takes place when the parties do not intend to be bound at
all; the latter, when the parties conceal their true agreement.
Art. 1346. An absolutely simulated or fictitious contract is void. A
relative simulation, when it does not prejudice a third person and is
not intended for any purpose contrary to law, morals, good
customs, public order or public policy binds the parties to their real
agreement.
The failure of the Deed of Sale to express the true intent and
agreement of the parties was clearly put in issue in the Answer [31] of the
Heirs of Alfonso to the Complaint. It was alleged that the Deed of Sale was
only made to lessen the payment of estate and inheritance taxes and not
meant to transfer ownership. The exception in paragraph (b) is allowed to
enable the court to ascertain the true intent of the parties, and once the intent
is clear, it shall prevail over what the document appears to be on its face.
[32]
As the true intent of the parties was duly proven in the present case, it
now prevails over what appears on the Deed of Sale.
The validity of the Deed of Sale was also put in issue in the Answer,
and was precisely one of the issues submitted to the RTC for resolution.
[33]
The operation of the parol evidence rule requires the existence of a valid
written agreement. It is, thus, not applicable in a proceeding where the
validity of such agreement is the fact in dispute, such as when a contract
may be void for lack of consideration.[34] Considering that the Deed of Sale
has been shown to be void for being absolutely simulated and for lack of
consideration, the Heirs of Alfonso are not precluded from presenting
evidence to modify, explain or add to the terms of the written agreement.
The Heirs of Policronio must be in a state of confusion in arguing that
the Heirs of Alfonso may not question the Deed of Sale for not being parties
or successors-in-interest therein on the basis that the parol evidence rule may
not be properly invoked in a proceeding or litigation where at least one of
the parties to the suit is not a party or a privy of a party to the written
instrument in question and does not base a claim on the instrument or assert
a right originating in the instrument or the relation established thereby. If
their argument was to be accepted, then the Heirs of Policronio would
themselves be precluded from invoking the parol evidence rule to exclude
the evidence of the Heirs of Alfonso.
Indeed, the applicability of the parol evidence rule requires that the
case be between parties and their successors-in-interest. [35] In this case, both
the Heirs of Alfonso and the Heirs of Policronio are successors-in-interest of
the parties to the Deed of Sale as they claim rights under Alfonso and
Policronio,
respectively. The
parol
evidence
rule
excluding
evidence aliunde, however, still cannot apply because the present case falls
under two exceptions to the rule, as discussed above.
produce thereof, and never paid real estate taxes thereon). Fourth, Policronio
never informed his children of the sale.
As the Heirs of Policronio failed to controvert the evidence presented,
and to timely object to the testimony of Amparo Castillo, both the RTC and
the CA correctly accorded probative weight to her testimony.
Prior Action Unnecessary
The Heirs of Policronio averred that the Heirs of Alfonso should have
filed an action to declare the sale void prior to executing the Deed of ExtraJudicial Partition. They argued that the sale should enjoy the presumption of
regularity, and until overturned by a court, the Heirs of Alfonso had no
authority to include the land in the inventory of properties of Alfonsos
estate. By doing so, they arrogated upon themselves the power of
invalidating the Deed of Sale which is exclusively vested in a court of law
which, in turn, can rule only upon the observance of due process. Thus, they
contended that prescription, laches, or estoppel have set in to militate against
assailing the validity of the sale.
The Heirs of Policronio are mistaken.
A simulated contract of sale is without any cause or consideration, and
is, therefore, null and void; in such case, no independent action to rescind or
annul the contract is necessary, and it may be treated as non-existent for all
purposes.[39] A void or inexistent contract is one which has no force and
effect from the beginning, as if it has never been entered into, and which
cannot be validated either by time or ratification. A void contract produces
no effect whatsoever either against or in favor of anyone; it does not create,
modify or extinguish the juridical relation to which it refers. [40] Therefore, it
was not necessary for the Heirs of Alfonso to first file an action to declare
the nullity of the Deed of Sale prior to executing the Deed of Extra-Judicial
Partition.
Personality to Question Sale
The Heirs of Policronio contended that the Heirs of Alfonso are not
parties, heirs, or successors-in-interest under the contemplation of law to
clothe them with the personality to question the Deed of Sale. They argued
that under Article 1311 of the Civil Code, contracts take effect only between
the parties, their assigns and heirs. Thus, the genuine character of a contract
which personally binds the parties cannot be put in issue by a person who is
not a party thereto. They posited that the Heirs of Alfonso were not parties to
the contract; neither did they appear to be beneficiaries by way of
assignment or inheritance. Unlike themselves who are direct heirs of
Policronio, the Heirs of Alfonso are not Alfonsos direct heirs. For the Heirs
of Alfonso to qualify as parties, under Article 1311 of the Civil Code, they
must first prove that they are either heirs or assignees. Being neither, they
have no legal standing to question the Deed of Sale.
They further argued that the sale cannot be assailed for being barred
under Article 1421 of the Civil Code which provides that the defense of
illegality of a contract is not available to third persons whose interests are
not directly affected.
Again, the Court disagrees.
Article 1311 and Article 1421 of the Civil Code provide:
Art. 1311. Contracts take effect only between the parties, their
assigns and heirs, x x x
Art. 1421. The defense of illegality of contracts is not available to
third persons whose interests are not directly affected.
Alfonso must first prove that the sale of Alfonsos properties to Policronio
substantially diminished their successional rights or that their legitimes
would be unduly prejudiced, considering that under Article 842 of the Civil
Code, one who has compulsory heirs may dispose of his estate provided that
he does not contravene the provisions of the Civil Code with regard to the
legitime of said heirs. Having failed to do so, they argued that the Heirs of
Alfonso should be precluded from questioning the validity of the Deed of
Sale.
Still, the Court disagrees.
Article 842 of the Civil Code provides:
Art. 842. 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 legitime of said heirs.
Policronio as the rightful inheritors and should, thus, be barred from laying
claim on the land.
The Heirs of Policronio are mistaken.
Article 1410 of the Civil Code provides:
Art. 1410. The action for the declaration of the inexistence of a
contract does not prescribe.
They further argued that under Article 1317 of the Civil Code, when
the persons represented without authority have ratified the unauthorized acts,
the contract becomes enforceable and binding. They contended that the
Heirs of Policronio ratified the Deed of Extra-Judicial Partition when
Conrado took possession of one of the parcels of land adjudicated to him
and his siblings, and when another parcel was used as collateral for a loan
entered into by some of the Heirs of Policronio. The Deed of Extra-Judicial
Partition having been ratified and its benefits accepted, the same thus
became enforceable and binding upon them.
The Heirs of Alfonso averred that granting arguendo that Conrado was
not authorized to represent his co-heirs and there was no ratification, the CA
should not have remanded the case to the RTC for partition of Alfonsos
estate. They argued that the CA should not have applied the Civil Code
general provision on contracts, but the special provisions dealing with
succession and partition. They contended that contrary to the ruling of the
CA, the extra-judicial parition was not an act of strict dominion, as it has
been ruled that partition of inherited land is not a conveyance but a
confirmation or ratification of title or right to the land. [46] Therefore, the law
requiring a special power of attorney should not be applied to partitions.
On the other hand, the Heirs of Policronio insisted that the CA
pronouncement on the invalidity of the Deed of Extra-Judicial Partition
should not be disturbed because the subject properties should not have been
included in the estate of Alfonso, and because Conrado lacked the written
authority to represent his siblings. They argued with the CA in ruling that a
special power of attorney was required before Conrado could sign in behalf
of his co-heirs.
The Heirs of Policronio denied that they ratified the Deed of ExtraJudicial Partition. They claimed that there is nothing on record that
establishes that they ratified the partition. Far from doing so, they precisely
questioned its execution by filing a complaint. They further argued that
under Article 1409 (3) of the Civil Code, ratification cannot be invoked to
validate the illegal act of including in the partition those properties which do
not belong to the estate as it provides another mode of acquiring ownership
not sanctioned by law.
This Court finds that Article 1878 (5) and (15) is inapplicable to the
case at bench. It has been held in several cases[48] that partition among heirs
is not legally deemed a conveyance of real property resulting in change of
ownership. It is not a transfer of property from one to the other, but rather, it
is a confirmation or ratification of title or right of property that an heir is
renouncing in favor of another heir who accepts and receives the
inheritance. It is merely a designation and segregation of that part which
belongs to each heir. The Deed of Extra-Judicial Partition cannot, therefore,
be considered as an act of strict dominion. Hence, a special power of
attorney is not necessary.
In fact, as between the parties, even an oral partition by the heirs is
valid if no creditors are affected. The requirement of a written memorandum
under the statute of frauds does not apply to partitions effected by the heirs
where no creditors are involved considering that such transaction is not a
conveyance of property resulting in change of ownership but merely a
designation and segregation of that part which belongs to each heir.[49]
Neither is Article 1390 (1) applicable. Article 1390 (1) contemplates
the incapacity of a party to give consent to a contract. What is involved in the
case at bench though is not Conrados incapacity to give consent to the
contract, but rather his lack of authority to do so. Instead, Articles 1403 (1),
1404, and 1317 of the Civil Code find application to the circumstances
prevailing in this case. They are as follows:
Art. 1403. The following contracts are unenforceable, unless they
are ratified:
(1) Those entered into in the name of another person by one who
has been given no authority or legal representation, or who has
acted beyond his powers;
Art. 1404. Unauthorized contracts are governed by Article 1317 and
the principles of agency in Title X of this Book.
Art. 1317. No one may contract in the name of another without
being authorized by the latter, or unless he has by law a right to
represent him.
A contract entered into in the name of another by one who has no
authority or legal representation, or who has acted beyond his
powers, shall be unenforceable, unless it is ratified, expressly or
impliedly, by the person on whose behalf it has been executed,
before it is revoked by the other contracting party.
Q: After you have signed this document did you inform your
brothers and sisters that you have signed this document?
A: No I did not. [51]
xxx
Q: Now you read the document when it was allegedly brought to
your house by your aunt Pruding Pa[r]adero?
A: I did not read it because as I told her I still want to ask the advise
of my brothers and sisters.
Q: So do I get from you that you have never read the document
itself or any part thereof?
A: I have read the heading.
xxx
Q: And why is it that you did not read all the pages of this document
because I understand that you know also how to read in English?
A: Because the way Nay Pruding explained to me is that the
property of my grandfather will be partitioned that is why I am so
happy.
xxx
Q: You mean to say that after you signed this deed of extra judicial
partition up to the present you never informed them?
A: Perhaps they know already that I have signed and they read
already the document and they have read the document.
Q: My question is different, did you inform them?
A: The document sir? I did not tell them.
Q: Even until now?
A: Until now I did not inform them.[52]
This Court finds no cogent reason to reverse the finding of the RTC
that Conrados explanations were mere gratuitous assertions not entitled to
any probative weight. The RTC found Conrados credibility to have faltered
when he testified that perhaps his siblings were already aware of the Deed of
Extra-Judicial Partition. The RTC was in the best position to judge the
credibility of the witness testimony. The CA also recognized that Conrados
consent was not vitiated by mistake and undue influence as it required a
special power of attorney in order to bind his co-heirs and, as such, the CA
thereby recognized that his signature was binding to him but not with respect
to his co-heirs. Findings of fact of the trial court, particularly when affirmed
by the CA, are binding to this Court.[53]
Furthermore, this Court notes other peculiarities in Conrados
testimony. Despite claims of undue influence, there is no indication that
Conrado was forced to sign by his aunt, Prudencia Paradero. In fact, he
testified that he was happy to sign because his grandfathers estate would be
partitioned. Conrado, thus, clearly understood the document he signed. It is
also worth noting that despite the document being brought to him on three
separate occasions and indicating his intention to inform his siblings about
it, Conrado failed to do so, and still neglected to inform them even after he
had signed the partition. All these circumstances negate his claim of vitiated
consent. Having duly signed the Deed of Extra-Judicial Partition, Conrado is
bound to it. Thus, it is enforceable against him.
Although Conrados co-heirs claimed that they did not authorize Conrado to
sign the Deed of Extra-Judicial Partition in their behalf, several
circumstances militate against their contention.
First, the Deed of Extra-Judicial Partition was executed on April 19, 1989,
and the Heirs of Policronio claim that they only came to know of its
existence onJuly 30, 1995 through an issue of the Aklan Reporter. It is
difficult to believe that Conrado did not inform his siblings about the Deed
of Extra-Judicial Partition or at least broach its subject with them for more
than five years from the time he signed it, especially after indicating in his
testimony that he had intended to do so.
Second, Conrado retained possession of one of the parcels of land
adjudicated to him and his co-heirs in the Deed of Extra-Judicial Partition.
Third, after the execution of the partition on April 19, 1989 and more
than a year before they claimed to have discovered the existence of the Deed
of Extra-Judicial Partition on July 30, 1995, some of the Heirs of Policronio,
namely, Rita Solano, Macario Ureta, Lilia Tayco, and Venancio Ureta
executed on June 1, 1994, a Special Power of Attorney [54] in favor of their
sister Gloria Gonzales, authorizing her to obtain a loan from a bank and to
mortgage one of the parcels of land adjudicated to them in the Deed of ExtraJudicial Partition to secure payment of the loan. They were able to obtain the
loan using the land as collateral, over which a Real Estate Mortgage [55] was
constituted. Both the Special Power of Attorney and the Real Estate
Mortgage were presented in evidence in the RTC, and were not controverted
or denied by the Heirs of Policronio.
Fourth, in the letter dated August 15, 1995, sent by the counsel of the
Heirs of Policronio to the Heirs of Alfonso requesting for amicable
settlement, there was no mention that Conrados consent to the Deed of
Extra-Judicial Partition was vitiated by mistake and undue influence or that
they had never authorized Conrado to represent them or sign the document
on their behalf. It is questionable for such a pertinent detail to have been
omitted. The body of said letter is reproduced hereunder as follows:
Greetings:
Your nephews and nieces, children of your deceased brother
Policronio Ureta, has referred to me for appropriate legal action the
property they inherited from their father consisting of six (6)
parcels of land which is covered by a Deed of Absolute Sale dated
October 25, 1969. These properties ha[ve] already been transferred
to the name of their deceased father immediately after the sale,
machine copy of the said Deed of Sale is hereto attached for your
ready reference.
Lately, however, there was published an Extra-judicial Partition of
the estate of Alfonso Ureta, which to the surprise of my clients
included the properties already sold to their father before the death
of said Alfonso Ureta. This inclusion of their property is erroneous
and illegal because these properties were covered by the Deed of
Absolute Sale in favor of their father Policronio Ureta no longer
form part of the estate of Alfonso Ureta. Since Policronio Ureta has
[sic] died in 1974 yet, these properties have passed by hereditary
succession to his children who are now the true and lawful owners
of the said properties.
The Heirs of Alfonso were of the position that the absence of the
Heirs of Policronio in the partition or the lack of authority of their
representative results, at the very least, in their preterition and not in the
invalidity of the entire deed of partition. Assuming there was actual
preterition, it did not render the Deed of Extra-Judicial Partition
voidable. Citing Article 1104 of the Civil Code, they aver that a partition
made with preterition of any of the compulsory heirs shall not be rescinded,
but the heirs shall be proportionately obliged to pay the share of the person
omitted. Thus, the Deed of Extra-Judicial Partition should not have been
annulled by the CA. Instead, it should have ordered the share of the heirs
omitted to be given to them.
The Heirs of Alfonso also argued that all that remains to be adjudged
is the right of the preterited heirs to represent their father, Policronio, and be
declared entitled to his share. They contend that remand to the RTC is no
longer necessary as the issue is purely legal and can be resolved by the
provisions of the Civil Code for there is no dispute that each of Alfonsos
heirs received their rightful share. Conrado, who received Policronios share,
should then fully account for what he had received to his other co-heirs and
be directed to deliver their share in the inheritance.
These arguments cannot be given credence.
Their posited theory on preterition is no longer viable. It has already
been determined that the Heirs of Policronio gave their consent to the Deed
of Extra-Judicial Partition and they have not been excluded from it.
Nonetheless, even granting that the Heirs of Policronio were denied their
lawful participation in the partition, the argument of the Heirs of Alfonso
would still fail.
Preterition under Article 854 of the Civil Code is as follows:
Considering that the Deed of Sale has been found void and the Deed
of Extra-Judicial Partition valid, with the consent of all the Heirs of
Policronio duly given, there is no need to remand the case to the court of
origin for partition.
WHEREFORE, the petition in G.R. No. 165748 is DENIED. The
petition in G.R. No. 165930 is GRANTED. The assailed April 20,
2004 Decision and October 14, 2004 Resolution of the Court of Appeals in
CA-G.R. CV No. 71399, are hereby MODIFIED in this wise:
(1) The Deed of Extra-Judicial Partition, dated April 19, 1989, is
VALID, and
(2) The order to remand the case to the court of origin is
hereby DELETED.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Designated as additional member of the Third Division per Special Order No. 1028 dated June
21, 2011.
[1]
Penned by Associate Justice Perlita J. Tria Tirona with Associate Justice B.A. Adefuin-De La
Cruz and Associate Justice Arturo D. Brion (now a member of this Court), concurring.
[2]
Penned by Associate Justice Perlita J. Tria Tirona with Associate Justice Ruben T. Reyes and
Associate Justice Arturo D. Brion (now a member of this Court), concurring.
[3]
Rollo (G.R. No. 165748), pp. 75-81.
[4]
Exhibit G, records, p. 349.
[5]
Exhibit 5, id. at 526.
[6]
Exhibit 11, id. at 528.
[7]
Exhibit 6, id. at 527.
[8]
Exhibit 7, id. at 529-539.
[9]
Rollo (G.R. No. 165748), pp. 51-65.
[10]
Manila Banking Corporation v. Silverio, 504 Phil. 17, 25-26 (2005), citing Suntay v. Court of
Appeals, 321 Phil. 809 (1995) and RULES OF COURT, Rule 131, Sec. 3 (r) and (p).
[11]
Gatmaitan v. Court of Appeals, G.R. No. 76500, August 2, 1991, 200 SCRA 38.
[12]
Ascalon v. Court of Appeals, 242 Phil. 265 (1988).
[13]
G.R. No. 163687, March 28, 2006, 485 SCRA 494, 500-501; citing Loyola v. Court of Appeals,
383 Phil. 171 (2000), and Balite v. Lim, 487 Phil. 281 (2004).
[14]
Manila Banking Corporation v. Silverio, supra note 10 at 27, citing Peoples Aircargo and
Warehousing Co., Inc. v. Court of Appeals, 357 Phil. 850 (1998).
[15]
Tongoy v. Court of Appeals, 208 Phil. 95, 113 (1983); citing Rodriguez v. Rodriguez, 127 Phil.
294, 301-302 (1967).
[16]
Lopez v. Lopez, G.R. No. 161925, November 25, 2009, 605 SCRA 358, 367.
[17]
RULES OF COURT, Rule 133, Sec. 1. Preponderance of evidence, how determined. In civil cases, the
party having the burden of proof must establish his case by a preponderance of evidence. In determining
where the preponderance or superior weight of evidence on the issues involved lies, the court may consider
all the facts and circumstance of the case, the witnesses manner of testifying, their intelligence, their means
and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they
testify, the probability of their testimony, their interest or want of interest, and also their personal credibility
so far as the same may legitimately appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the greater number.
[18]
TSN, April 6, 1998, pp. 9-10.
[19]
Exhibit 7-d, records, p. 533.
[20]
Manila Banking Corporation v. Silverio, supra note 10 at 31, citing Suntay v. Court of Appeals,
321 Phil. 809 (1995); Santiago v. Court of Appeals, 343 Phil. 612 (1997); Cruz v. Bancom Finance
Corporation, 429 Phil. 225 (2002); and Ramos v. Heirs of Ramos, 431 Phil. 337 (2002).
[21]
Samala v. Court of Appeals, 467 Phil. 563, 568 (2004).
[22]
Tongoy v. Court of Appeals, supra note 15; Manila Banking Corporation v. Silverio, 504 Phil. 17, 33
(2005).
[23]
Rollo (G.R. No. 165748), p. 69-70.
[24]
Morales Development Company, Inc. v. Court of Appeals, 137 Phil. 307 (1969).
[25]
Acabal v. Acabal, 494 Phil. 528 (2005).
[26]
Exhibit G, records, p. 349.
[27]
Rollo (G.R. No. 165748), p. 79; and TSN, April 6, 1998, p. 9.
[28]
Montecillo v. Reynes, 434 Phil. 456, 469 (2002); citing Ocejo Perez & Co. v. Flores, 40 Phil
921 (1920); Mapalo v. Mapalo, 123 Phil. 979 (1966); Vda. de Catindig v. Roque, 165 Phil. 707
(1976); Rongavilla v. Court of Appeals, 355 Phil. 721 (1998); and Yu Bu Guan v. Ong, 419 Phil. 845 (2001).
[29]
Lechugas v. Court of Appeals, 227 Phil. 310 (1986).
[30]
RULES OF COURT, Rule 132, Sec. 36.
[31]
Rollo (G.R. No. 165748), pp. 66-74.
[32]
Premier Insurance v. Intermediate Appellate Court, 225 Phil. 370, 381 (1986); citing Labasan
v. Lacuesta, 175 Phil. 216 (1978).
[33]
Rollo (G.R No. 165748), p. 77.
[34]
Herrera, Remedial Law, Vol. V, pp. 208-209, [1999].
[35]
Lechugas v. Court of Appeals, 227 Phil. 310, 319 (1986).
[36]
Eugenio v. Court of Appeals, G.R. No. 103737, December 15, 1994, 239 SCRA 207.
[37]
People v. Parungao, 332 Phil. 917, 924 (1996).
[38]
222 Phil. 424, 437 (1985).
[39]
Ocejo Perez & Co. v. Flores, 40 Phil. 921 (1920); De Belen v. Collector of Customs, 46 Phil.
241 (1924); Gallion v. Gayares, 53 Phil. 43 (1929); Escutin v. Escutin, 60 Phil. 922 (1934); Gonzales
v. Trinidad, 67 Phil. 682 (1939); Portugal v. IAC, 242 Phil. 709 (1988).
[40]
Tongoy v. Court of Appeals, supra note 15.
[41]
Arsenal v. Intermediate Appellate Court, 227 Phil. 36, 46-47 (1986); Tolentiono, Civil Code of
the Philippines, Vol. IV, p. 643, [2002].
[42]
Sta. Romana v. Imperio, 122 Phil. 1001, 1007 (1965); Tolentino, Civil Code of the Philippines,
Vol. IV, p. 634, (2002).
[43]
Gonzales v. Trinidad, 67 Phil. 682, 683-684 (1939); Castro v. Escutin, 179 Phil. 277, 284
(1979).
[44]
Tongoy v. Court of Appeals, supra note 15; Manila Banking Corporation v. Silverio, 504 Phil. 17, 33
(2005).
[45]
Id.
[46]
Barcelona v. Barcelona, 100 Phil 251, 255 (1956).
[47]
Borbon II v. Servicewide Specialists, Inc., 328 Phil. 150, 160 (1996).
[48]
Barcelona v. Barcelona, 100 Phil. 251, 255 (1956); Maestrado v. Court of Appeals, 384 Phil.
418, 432 (2000); Castro v. Miat, 445 Phil. 282 297-298 (2003), citing Pada-Kilario v. Court of Appeals,
379 Phil. 515 (2000).
[49]
Maestrado v. Court of Appeals, 384 Phil. 418, 432 (2000).
[50]
236 Phil. 438, 447-448 (1987).
[51]
TSN, October 1, 1997, pp. 4-6.
[52]
Id. at 8-11.
Philippine Rabbit Bus Lines Inc. v. Macalinao, 491 Phil. 249, 255 (2005).
[54]
Exhibit 2, records, p. 524.
[55]
Exhibit 3, id. at 525.
[56]
Exhibit A, id. at 335-336.
[57]
Neri v. Akutin, 72 Phil. 322, 325 (1914); Maninang v. Court of Appeals, 199 Phil. 640, 647
[53]
(1982).
[58]
whom the testator had expressly recognized in his will as his daughter (natural) and Helen
Garcia, who had been judicially declared as such after his death. The said order was based
on the proposition that since Helen Garcia had been preterited in the will the institution of
Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the
deceased had died intestate, saving only the legacies left in favor of certain other persons,
which legacies have been duly approved by the lower court and distributed to the legatees.
The case is once more before us on appeal, this time by Lucy Duncan, on the sole question
of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia
in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be
merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to
1/4 of the entire estate.
The will of Edward E. Christensen contains, among others, the following clauses which are
pertinent to the issue in this case:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN
(Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years
ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California,
U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except
my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx
xxx
xxx
7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that
she was baptized Christensen, is not in any way related to me, nor has she been at
any time adopted by me, and who, from all information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS
(P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria
Helen Christensen with the Davao Branch of the Philippine National Bank, and paid
to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month
until the principal thereof as well as any interest which may have accrued thereon, is
exhausted.
xxx
xxx
xxx
12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as
aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character, and wheresoever situated,
of which I may be possessed at my death and which may have come to me from any
source whatsoever, during her lifetime; Provided, however, that should the said
MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living
issue, then and in that event, the life interest herein given shall terminate, and if so
terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY
CHRISTENSEN DANEY the rest, remainder and residue of my property with the
same force and effect as if I had originally so given, devised and bequeathed it to
her; and provided, further, that should the said MARIA LUCY CHRISTENSEN
DANEY die without living issue, then, and in that event, I give, devise and bequeath
all the rest, remainder and residue of my property one-half (1/2) to my well-beloved
sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth
Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my
deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of
Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan
Beach, California, U.S.A., share and share alike, the share of any of the three above
named who may predecease me, to go in equal parts to the descendants of the
deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton
die before my own decease, then, and in that event, the share of my estate devised
to her herein I give, devise and bequeath to her children, Elizabeth Borton de
Trevio, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California,
U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of
them who may die before my own decease, share and share alike.
The trial court ruled, and appellee now maintains, that there has been preterition of Helen
Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir
pursuant to Article 854 of the Civil Code, which provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious.
On the other hand, appellant contends that this is not a case of preterition, but is governed
by Article 906 of the Civil Code, which says: "Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him may demand that the same be fully
satisfied." Appellant also suggests that considering the provisions of the will whereby the
testator expressly denied his relationship with Helen Garcia, but left to her a legacy
nevertheless although less than the amount of her legitime, she was in effect defectively
disinherited within the meaning of Article 918, which reads:
ART. 918. Disinheritance without a specification of the cause, or for a cause the truth
of which, if contradicted, is not proved, or which is not one of those set forth in this
Code, shall annul the institution of heirs insofar as it may prejudice the person
disinherited; but the devices and legacies and other testamentary dispositions shall
be valid to such extent as will not impair the legitimate.
Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to
her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession
were intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of
Article 815. Commenting on Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de
memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se
encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una
porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima,
pero que influeye poderosamente en el animo del legislador para decidirle a adoptar
una solucion bien diferente de la sealada para el caso de pretericion.
xxx
xxx
xxx
B. Que la omision sea completa Esta condicion se deduce del mismo Articulo 814
y resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a
quien el testador deja algo por cualquier titulo en su testamento, no se halla
propiamente omitido pues se le nombra y se le reconoce participacion en los bienes
hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se
reconociese el derecho del heredero como tal heredero, pero el articulo 815
desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de
la privacion parcial. Los efectos deben ser y son, como veremos completamente
distintos (6 Manresa, p. 428.)
Wherefore, the order of the trial court dated October 29, 1964, approving the project of
partition as submitted by the executor-appellee, is hereby set aside; and the case is
remanded with instructions to partition the hereditary estate anew as indicated in this
decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more
than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the
hereditary estate, after deducting all debts and charges, which shall not include those
imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs
against appellees in this instance.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and
Sanchez, JJ., concur.
RESOLUTION
July 30, 1967
MAKALINTAL, J.:
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to
an alleged oversight and asking for the corresponding correction, in the last paragraph
before the dispositive part of our decision, which reads as follows:
One point deserves to be here mentioned, although no reference to it has been made in the
brief for oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed
to Lucy Duncan in the event she should die without living issue. This substitution results in
effect from the fact that under paragraph 12 of the will she is entitled only to the income from
said estate, unless prior to her decease she should have living issue, in which event she
would inherit in full ownership; otherwise the property will go to the other relatives of the
testator named in the will. Without deciding this point, since it is not one of the issues raised
before us, we might call attention to the limitations imposed by law upon this kind of
substitution, particularly that which says that it can never burden the legitime (Art. 864, Civil
Code), which means that the legitime must descend to the heir concerned in fee simple.
(Decision, June 30, 1966, pages 14-15; emphasis ours).
Oppositor-appellant points out that the matter of substitution of heirs was taken up and
discussed in her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but
the reference to and discussion of the rights of the substitute heirs (called American heirs in
the brief) appears to be merely for the purpose of refuting the theory advanced by appellees
and not for the purpose of having the rights of said heirs defined in so far as, under the terms
of the will, they may affect the legitime of oppositor-appellant. This point of course was not
and could hardly have been squarely raised as an issue inasmuch as the substitute heirs are
not parties in this case. We have nevertheless called attention "to the limitations imposed by
law upon this kind of substitution," because in the brief for oppositor-appellant, at page 45,
she makes the conclusion "that the Last Will and Testament of Edward E. Christensen are
valid under Philippine Law and must be given full force and effect;" and to give them full
force and effect would precisely affect the legitime of oppositor-appellant.
Wherefore, the last paragraph before the dispositive part of our decision quoted above is
amended by eliminating the following phrase in the first sentence: "although no reference to
it has been made in the brief for oppositor-appellant."
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ.,
concur.
Regala and Castro, JJ., took no part.
1wph1.t
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
validity 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 38B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November,
nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the 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. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of
the Civil Code of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator,
shall void the institution of heir; 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 consiste en omitar al heredero en el testamento. O no se le nombra
siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se
le deshereda expresamente ni se le asigna parte alguna de los bienes, resultando
privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento
omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda
la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la
omision sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat 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 void ... In re Morrow's Estate, 54 A. 342, 343,
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:34-35). 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 abolish; 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 institucion de heredero, dando
caracter absoluto a este ordenamiento 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 institucion de heredero, se anula. Lo que se anula deja de existir, en
todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el que
se expresa que se anulara la institucion de heredero en cuanto prejudique a la
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 ... todas aquellas otras
disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa 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 donacion. 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". 15From this, petitioner draws the conclusion that Article 854 "does not
apply to the case at bar". This argument fails to appreciate the distinction between pretention
and disinheritance.
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."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 privacion expresa de la legitima
constituye ladesheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; 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", put only "insofar as it may prejudice the person disinherited", which last phrase was
omitted in the case 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, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos
tercios, 22 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 Moran in
the Neri 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 betterments. And they are
separate and distinct not only because they are distinctly and separately treated in
said article but because they are in themselves different. Institution of heirs is a
bequest by universal title of property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... 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.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and
Zaldivar, JJ., concur.
Footnotes
Castaeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc., et al., 5 Phil.
436, 440-441; Limjuco vs. Ganara, 11 Phil. 393, 394-395; Montaano vs. Suesa, 14
Phil. 676, 679; Riera vs. Palmorali, et al., 40 Phil. 105, 116; In re Estate of Johnson,
39 Phil. 156, 174; Palacios vs. Palacios, 58 O.G. No. 2, 220, 221; Teotico vs. Del Val,
etc., L-18753, March 26, 1965.
1
Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil. 517, 522.
Betterments are eliminated in the present Civil Code. II Padilla, Civil Code
Annotated, p. 1077.
4
Id., p. 4.
10
VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o, p. 1140.
11
VI Sanchez Roman, id., p. 1138. This is also cited in the Neri case, 74 Phil. 192193.
12
Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled "An Outline
of Philippine Civil Law", 1956 ed., Vol. III, p. 8; citing Gil vs. Murciano, L3362, March 1, 1951, likewise opined that "the right to make a will is
statutory, not a natural right, and must be subordinate to law and public
policy".
13
14
15
16
17
Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107, speaking of the
requisites of a valid disinheritance, confirm the theory that disinheritance "must
be express (not implied) (Art. 918 ; otherwise there is preterition".
18
19
20
Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-752.
21
22
23
24
25
Arts. 817 and 851, Civil Code of Spain of 1889, referred to in the opinion
above, are now Arts. 907 and 918 of the present Civil Code.
TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all
surnamed Reyes y Barretto,plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No.
1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver
to the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his
deceasea wife under the terms of the will of the late Bibiano Barretto, consisting of lots in
Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the barrio of
San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734
of the Land Records of this Province, being the share of plaintiff's wards as minor
heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said
minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they
acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan,
covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285,
6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of
these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros
Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto
and his nephew an nieces The usufruct o the fishpon situate i barrio Sa Roque
Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerardo
I the meantime Maria Gerardo was appointe administratrix. By virtue thereof, she
prepared a project of partition, which was signed by her in her own behalf and as guardian of
the minor Milagros Barretto. Said project of partition was approved by the Court of First
Instance of Manila on November 22, 1939. The distribution of the estate and the delivery of
the shares of the heirs followed forthwith. As a consequence, Salud Barretto took immediate
possession of her share and secured the cancellation of the original certificates of title and
the issuance of new titles in her own name.
Everything went well since then. Nobody was heard to complain of any irregularity in the
distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon
her death, it was discovered that she had executed two wills, in the first of which, she
instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second, she
revoked the same and left all her properties in favor of Milagros Barretto alone. Thus, the
later will was allowed and the first rejected. In rejecting the first will presented by Tirso
Reyes, as guardian of the children of Salud Barretto, the lower court held that Salud was not
the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This ruling
was appealed to the Supreme Court, which affirmed the same. 1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of
Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased
Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this action
for the recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not only of
the fishpond under litigation, but of all the other properties willed and delivered to Salud
Barretto, for being a spurious heir, and not entitled to any share in the estate of Bibiano
Barretto, thereby directly attacking the validity, not only of the project of partition, but of the
decision of the court based thereon as well.
The defendant contends that the Project of Partition from which Salud acquired the fishpond
in question is void ab initio and Salud Barretto did not acquire any valid title thereto, and that
the court did not acquire any jurisdiction of the person of the defendant, who was then a
minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the
project of partition submitted in the proceedings for the settlement of the estate of Bibiano
Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null and void ab
initio (not merely voidable) because the distributee, Salud Barretto, predecessor of plaintiffs
(now appellants), was not a daughter of the spouses Bibiano Barretto and Maria Gerardo.
The nullity of the project of partition was decreed on the basis of Article 1081 of the Civil
Code of 1889 (then in force) providing as follows: .
A partition in which a person was believed to be an heir, without being so, has been
included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that since Bibiano
Barretto was free to dispose of one-third (1/3) of his estate under the old Civil Code, his will
was valid in favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such free part.
And it concluded that, as defendant Milagros was the only true heir of Bibiano Barretto, she
was entitled to recover from Salud, and from the latter's children and successors, all the
Properties received by her from Bibiano's estate, in view of the provisions of Article 1456 of
the new Civil Code of the Philippines establishing that property acquired by fraud or mistake
is held by its acquirer in implied trust for the real owner. Hence, as stated at the beginning of
this opinion, the Court a quo not only dismissed the plaintiffs' complaint but ordered them to
return the properties received under the project of partition previously mentioned as prayed
for in defendant Milagros Barretto's counterclaim. However, it denied defendant's prayer for
damages. Hence, this appeal interposed by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been
misapplied to the present case by the court below. The reason is obvious: Salud Barretto
admittedly had been instituted heir in the late Bibiano Barretto's last will and testament
together with defendant Milagros; hence, the partition had between them could not be one
such had with a party who was believed to be an heir without really being one, and was not
null and void under said article. The legal precept (Article 1081) does not speak of children,
or descendants, but of heirs(without distinction between forced, voluntary or intestate ones),
and the fact that Salud happened not to be a daughter of the testator does not preclude her
being one of the heirs expressly named in his testament; for Bibiano Barretto was at liberty to
assign the free portion of his estate to whomsoever he chose. While the share () assigned
to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a
testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller than her
legitime invalidate the institution of Salud as heir, since there was here no preterition, or total
ommission of a forced heir. For this reason,Neri vs. Akutin, 72 Phil. 322, invoked by appellee,
is not at all applicable, that case involving an instance of preterition or omission of children of
the testator's former marriage.
Appellee contends that the partition in question was void as a compromise on the civil status
of Salud in violation of Article 1814 of the old Civil Code. This view is erroneous, since a
compromise presupposes the settlement of a controversy through mutual concessions of the
parties (Civil Code of 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and the
condition of Salud as daughter of the testator Bibiano Barretto, while untrue, was at no time
disputed during the settlement of the estate of the testator. There can be no compromise
over issues not in dispute. And while a compromise over civil status is prohibited, the law
nowhere forbids a settlement by the parties over the share that should correspond to a
claimant to the estate.
At any rate, independently of a project of partition which, as its own name implies, is merely
a proposal for distribution of the estate, that the court may accept or reject, it is the court
alone that makes the distribution of the estate and determines the persons entitled thereto
and the parts to which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section
750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree
of distribution, once final, that vests title in the distributees. If the decree was erroneous or
not in conformity with law or the testament, the same should have been corrected by
opportune appeal; but once it had become final, its binding effect is like that of any other
judgment in rem, unless properly set aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution of the estate,
and the same has become final, the validity or invalidity of the project of partition becomes
irrelevant.
It is, however, argued for the appellee that since the court's distribution of the estate of the
late Bibiano Barretto was predicated on the project of partition executed by Salud Barretto
and the widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros
Barretto), and since no evidence was taken of the filiation of the heirs, nor were any findings
of fact or law made, the decree of distribution can have no greater validity than that of the
basic partition, and must stand or fall with it, being in the nature of a judgment by consent,
... It is argued that Lucia Milagros Barretto was a minor when she signed the
partition, and that Maria Gerardo was not her judicially appointed guardian. The claim
is not true. Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97,
Rules of Court.) The mere statement in the project of partion that the guardianship
proceedings of the minor Lucia Milagros Barretto are pending in the court, does not
mean that the guardian had not yet been appointed; it meant that the guardianship
proceedings had not yet been terminated, and as a guardianship proceedings begin
with the appointment of a guardian, Maria Gerardo must have been already
appointed when she signed the project of partition. There is, therefore, no irregularity
or defect or error in the project of partition, apparent on the record of the testate
proceedings, which shows that Maria Gerardo had no power or authority to sign the
project of partition as guardian of the minor Lucia Milagros Barretto, and,
consequently, no ground for the contention that the order approving the project of
partition is absolutely null and void and may be attacked collaterally in these
proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only made a party by
publication but actually appeared and participated in the proceedings through her guardian:
she, therefore, can not escape the jurisdiction of the Manila Court of First Instance which
settled her father's estate.
Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could
not have ignored that the distributee Salud was not her child, the act of said widow in
agreeing to the oft-cited partition and distribution was a fraud on appellees rights and entitles
her to relief. In the first place, there is no evidence that when the estate of Bibiano Barretto
was judicially settled and distributed appellants' predecessor, Salud Lim Boco Barretto to,
knew that she was not Bibiano's child: so that if fraud was committed, it was the widow,
Maria Gerardo, who was solely responsible, and neither Salud nor her minor children,
appellants herein, can be held liable therefor. In the second placegranting that there was
such fraud, relief therefrom can only be obtained within 4 years from its discovery, and the
record shows that this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24),
she became of age five years later, in 1944. On that year, her cause of action accrued to
contest on the ground of fraud the court decree distributing her father's estate and the fouryear period of limitation started to run, to expire in 1948 (Section 43, Act. 190). In fact,
conceding that Milagros only became aware of the true facts in 1946 (Appellee's Brief, p.
27), her action still became extinct in 1950. Clearly, therefore, the action was already barred
when in August 31, 1956 she filed her counterclaim in this case contesting the decree of
distribution of Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced evidence that
appellant Tirso Reyes had induced her to delay filing action by verbally promising to
reconvey the properties received by his deceased wife, Salud. There is no reliable evidence
of the alleged promise, which rests exclusively on the oral assertions of Milagros herself and
her counsel. In fact, the trial court made no mention of such promise in the decision under
appeal. Even more: granting arguendo that the promise was made, the same can not bind
the wards, the minor children of Salud, who are the real parties in interest. An abdicative
waiver of rights by a guardian, being an act of disposition, and not of administration, can not
bind his wards, being null and void as to them unless duly authorized by the proper court
(Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the
proceedings for the settlement of the estate of Bibiano Barretto duly approved by the Court
of First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being contrary
to either Article 1081 or 1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to
contest said partition and decree of distribution is barred by the statute of limitations; and (3)
that her claim that plaintiff-appellant guardian is a possessor in bad faith and should account
for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is
legally untenable. It follows that the plaintiffs' action for partition of the fishpond described in
the complaint should have been given due course.
Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is
reversed and set aside in so far as it orders plaintiff-appellant to reconvey to appellee
Milagros Barretto Datu the properties enumeracted in said decision, and the same is affirmed
in so far as it denies any right of said appellee to accounting. Let the records be returned to
the court of origin, with instructions to proceed with the action for partition of the fishpond
(Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of the Register of
Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in the complaint
No costs.
Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro,
JJ., concur.
Footnotes
1
executed will, his recognized natural son who survives him, being his general heir, is only entitled to
one-third of his estate, which amount constitutes his legal portion, but, if the natural father dies
intestate, his natural recognized son is entitled to the entire estate. (Arts. 807, 842, 939, Civil
Code.)
4. ID.; TESTATE AND INTESTATE SUCCESSION. A person may die partly testate and partly
intestate.
5. ID.; NATURAL FATHERS RIGHTS; RIGHTS OF NATURAL CHILD. The natural father has the right
to freely dispose by will of two-thirds of his estate, and in case he exceeds this right by dispossing
of the legal portion pertaining to his natural recognized son, or by overlooking the right of the latter
under the will, the designation of heirs or the testamentary provision relative to the legal portion of
the general heir, shall be held void; nevertheless, the other testamentary provisions referring to
legacies and gifts shall be considered valid, in so far as they are not illegal and do not impair the
legal portion of the recognized natural son, who is the general heir of the testator.
DECISION
TORRES, J. :
On the 19th of January, 1899, Emilio Antonio Escuin de los Santos executed a will before a notary
public of Sevilla, Spain, stating therein that he was a native of Cavite, the son of Francisco Escuin
and Eugenia de los Santos, the latter being deceased; that he was married about six months
previously to Maria Teresa Ponce de Leon, and that he had no lawful descendants; the testator,
however, stated in clause three of his will, that in case he had a duly registered successor, his child
would be his sole and universal heir; but that if, as would probably be the case, there should be no
such heir, then in clause four he named his said father Francisco Escuin, and his wife Maria Teresa
Ponce de Leon his universal heirs, they to divide the estate in equal shares between them.
The testator died on the 20th of January, 1899, as certified to by the municipal court of Magdalena,
Sevilla, on the 20th of March, 1900.
Upon the will having been admitted to probate, commissioners were appointed to consider claims
against the estate, and, according to a report presented to the Court of First Instance on the 20th of
June, 1907, one claim was allowed amounting to 3,696.50 pesetas.
On the 10th and 12th of July, 1907, the attorney for the widow, Ponce de Leon, and the attorneys
who represented the guardian of the minor, Emilio Escuin y Batac appealed to the Court of First
Instance from the findings of the aforesaid commissioners. Matters stood thus, and without there
appearing any decision of the court as to the appeals, the attorney for the administrator, by a
writing dated the 3d of September, following, moved for the approval of the proposed partition of
the estate provided for by the court; by the first additional request (otrosi) he asked that the
remuneration for the services of the administrator of the estate be fixed, and that he be authorized
to draw such amount from the funds of the estate; and by a second additional request he asked
that the accounts made up on the 31st of August, previous, be approved.
It appears in the proposed partition of the 3d of September, 1906, that, according to the opinion of
the administrator by whom it was signed and the result of the proceedings, the property left by the
testator, in accordance with the accounts passed upon by the court, amounted to P8,268.02
From said sum the following must be
deducted:
On the 30th of September, 1905, the court below found that Emilio Escuin y Batac was the
recognized natural child of the late Emilio Escuin de los Santos, had by Julia Batac; that the testator
was also the natural son of the defendant Francisco Escuin and Eugenia de los Santos, and was
recognized by his father; and that the plaintiff minor, Emilio Escuin y Batac, is one of the heirs of
the late testator.
By an order of the lower court dated the 30th of October, 1906, in view of the accounts and
proposal of partition presented by the administrator of the estate, the judge below expressed an
opinion that a natural child is only entitled to one-fourth of the hereditary property, the clause in the
will being annulled only in so far as the amount to be divided should be reduced, taking into account
the share due to the natural son and the right of the father and the widow of the testator, each to
one-half of the remainder of the property of the estate. The court approved the account presented,
but disapproved the project of partition of the hereditary property that was objected to by one of
the parties in interest. Counsel for the minor Emilio Escuin y Batac excepted to the above
resolution; a copy of the proceedings was submitted to this court together with the appeal that was
interposed.
On the 10th of July, 1907, the representatives of the administrator, and of the minor, Emilio Escuin y
Batac, respectively, stated in writing to the lower court that, in view of the fact that the order of
October 30, 1906, did not constitute a final judgment of partition (since the said proposal having
been rejected, another partition should be effected by commissioners) the court was requested to
appoint commissioners to present a new project of partition in substitution for the one presented by
the administrator, the new proposal to be submitted to the court for approval.
On the 22d of August, the attorney for the administrator filed a written request for the appointment
of said commissioners as stated above, and further requested that the remuneration of the
petitioner for his services as administrator be fixed by the court, and that he be authorized to draw
from the funds of the estate such sum as might thus be assigned to him.
On the 24th day of the said month of August, the court below issued an order with respect to the
foregoing requests and held that, for the reasons stated in the order, the appointment of
commissioners for the mere propose of determining what each one of the heirs should receive in
accordance with the order of the 30th of October, 1906, was not necessary, inasmuch as the
property of the estate consisted of ready money, and the administrator was thereby authorized to
distribute the funds among the heirs in the amount stated in the said order. From this decision the
representative of the minor Emilio Escuin y Batac took exception, and to this effect presented a bill
of errors together with a copy of the proceedings for review on appeal.
While the appeal s interposed against the report and resolution of the commissioners were still
pending in the lower court, the partition of the hereditary funds could not be ordered,
notwithstanding the fact that the same consisted of ready money, because the amount of the estate
subject to division had not yet been determined in order to comply with the law and the will of the
testator.
Until all the known creditors and the legatees have been paid, it shall be understood that the estate
is under administration, says article 1026 of the Civil Code, and in conformity with this legal
provision the supreme tribunal has established the doctrine that "only after payment of all the
obligations of the estate can the net amount divisible among the heirs be known." (Decision of
March 2, 1896.)
Section 753 of the Code of Civil Procedure confirms the provision of the Civil Code and the legal
doctrine mentioned above, inasmuch as it provides that, after payment of the debts, funeral
charges, and expenses of administration, and the allowances for the expense of maintenance of the
family of the deceased, the court shall assign the residue of the estate to the persons entitled to the
same, naming the persons and proportions or parts to which each is entitled, etc.
As to the aforesaid appeals from the resolution of the commissioners, section 776 of the Code of
Civil Procedure provides that:
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"Upon the lodging of such appeal with the clerk, the disputed claim shall stand for trial in the same
manner as any other action in the Court of First Instance, the creditor being deemed to be the
plaintiff, and the estate the defendant, and pleadings as in other actions shall be filed."
cralaw virtua1aw library
So that by reason of the claims made by the creditor of the estate of Emilio Escuin de los Santos
and by her natural son, duly recognized by his father, an ordinary action should have been brought
before the Court of First Instance, from whose judgment appeal may be taken to this court by
means of the corresponding bill of exceptions under the provisions of section 777 of the Code of
Civil Procedure; and while the ultimate decision in the matter of the said claims against the
resolution of the commissioners has not become final, and until all the obligations of the estate have
been paid, there can really be no inheritance, nor can it be distributed among the persons
interested therein according to the will of the testator, or under the provisions of the law.
The foregoing refers to the first error assigned in the certified copy of the proceedings and in the
brief of the representative of the minor Escuin y Batac, and also to the questions of the form of
procedure.
With respect to the questions which form the basis of this litigation and refer to the second
assignment of errors, it should be noted that the late testator did not leave any legitimate
descendants or ascendants, but did leave a recognized natural child, the appellant minor, and a
widow; that the said minor, Emilio Escuin y Batac, is the general heir of his natural father, the said
testator, who recognized him while living (art. 807, Civil Code), and in the present case is entitled to
one-third of his estate, which amount constitutes the legal portion of a natural child (art. 842 of the
said code); and for the reason that the minor was ignored by his natural father in his will, the
designation of heirs made therein was, as a matter of fact annulled by force of law, in so far as the
legal portion of the said minor was thereby impaired. Legacies and betterments shall be valid, in so
far as they are not illegal, for the reason that a testator can not deprive the heirs of their legal
portions, except in the cases expressly indicated by law. (Arts. 763, 813, 814, Civil Code.)
As has been seen, the testator wished to dispose of his property in his will, designating as heirs his
natural father, Francisco Escuin, and his wife, Maria Teresa Ponce de Leon, altogether ignoring his
recognized natural child who is his general heir. In view thereof, and for the reason that he
exceeded his rights, the said designation of heirs became void in so far as it impaired the right of
his general heir and deprived him of his legal portion; the will, however, is valid with respect to the
two-thirds of the property which the testator could freely dispose of. (Arts. 763, 764, 806, 813, 842,
Civil Code.)
Notwithstanding the fact that the designation of heirs is annulled and that the law recognizes the
title of the minor, Escuin y Batac, to one-third of the property of his natural father, as his lawful and
general heir, it is not proper to assert that the late Emilio Escuin de los Santos died intestate in
order to establish the conclusion that his said natural recognized child is entitled to succeed to the
entire estate under the provisions of article 939 of the Civil Code, inasmuch as in accordance with
the law a citizen may die partly testate and partly intestate (art. 764, Civil Code). It is clear and
unquestionable that it was the wish of the testator to favor his natural father and his wife with
certain portions of his property which, under the law, he had a right to dispose of by will, as he has
done, provided the legal portion of his general heir was not thereby impaired, the two former
persons being considered as legatees under the will.
The above-mentioned will is neither null, void, nor illegal in so far as the testator leaves two-thirds
of his property to his father and wife; testamentary provisions impairing the legal portion of a
general heir shall be reduced in so far as they are illegal or excessive. (Art. 817, Civil Code.) The
partition of the property of the said testator shall be proceeded with in accordance with the
foregoing legal bases.
The record does not show that the decision of the commissioners became final or was consented to
by the parties in interest, or that this point was alleged and discussed in the first instance;
therefore, such circumstance as alleged by the appellee can not now be considered.
By virtue of the foregoing considerations it is our opinion that the orders of the court below, of
October 30, 1906, and August 24, 1907, should be reversed, and upon receipt of a certified copy of
this decision the court below shall take action in accordance with the law and the terms herein
contained with respect to the claims and appeals from the resolutions of the commissioners pending
judicial decision. So ordered.
Arellano, C.J., Mapa, Carson, Willard and Tracey, JJ., concur.
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of
Davao dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria
Julian, converting the testate proceeding into an intestate proceeding and ordering the
issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents
of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao
City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by
their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo,
Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate
of his mother's notarial will dated September 5, 1970 which is written in English. In that will
Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal
lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited
from her father (par. III), and (c) that it was her desire that her properties should not be
divided among her heirs during her husband's lifetime and that their legitimes should be
satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two
years old in 1973) her paraphernal lands and all the conjugal lands (which she described as
"my properties") should be divided and distributed in the manner set forth in that part of her
will. She devised and partitioned the conjugal lands as if they were all owned by her. She
disposed of in the will her husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of
lack of testamentary capacity, undue influence, preterition of the husband and alleged
improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr.
should collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay,
Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and
affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an
instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights"
wherein he manifested that out of respect for his wife's will he "waived and renounced' his
hereditary rights in her estate in favor of their six children. In that same instrument he
confirmed the agreement, which he and his wife had perfected before her death, that their
conjugal properties would be partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973
"denied" the opposition and reset for hearing the probate of the will. It gave effect to the
affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed
its branch clerk of court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the
grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of
the conjugal lots and (b) that she could not partition the conjugal estate by allocating portions
of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo
Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to
be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed
a motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of
Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In
that motion Montaa claimed to be the lawyer not only of the petitioner but also of Felix
Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the conjugal assets
or allegedly effected a compromise of future legitimes. He prayed that the probate of the will
be withdrawn and that the proceeding be converted into an intestate proceeding. In another
motion of the same date he asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments
dated October 15, 1973 manifested their conformity with the motion for the issuance of a
notice to creditors. They prayed that the will be declared void for being contrary to law and
that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a
notice to creditors was in order since the parties had agreed on that point. It adopted the
view of Attys. Montaa and Guyo that the will was void. So, in its order of February 28, 1974
it dismissed the petition for the probate, converted the testate proceeding into an intestate
proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for
hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18
and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on
May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its
publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated
April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974
on the ground that Atty. Montaa had no authority to withdraw the petition for the allowance
of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to
Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and
Emilia B. Pabaonon, wherein they terminated Montaa's services and informed him that his
withdrawal of the petition for the probate of the will was without their consent and was
contrary to their repeated reminder to him that their mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower
court denied the motion in its order of June 29, 1974. It clarified that it declared the will void
on the basis of its own independent assessment of its provisions and not because of Atty.
Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the
will, before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which the
lower court assumed to have been filed with the petitioner's authorization), the trial court
acted correctly in passing upon the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the
issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs.
Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April
30, 1965, 13 SCRA 693).
1wph1.t
But the probate court erred in declaring, in its order of February 28, 1974 that the will was
void and in converting the testate proceeding into an intestate proceeding notwithstanding
the fact that in its order of June 18, 1973 , it gave effect to the surviving husband's conformity
to the will and to his renunciation of his hereditary rights which presumably included his onehalf share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not result
in the invalidity of the other dispositions, unless it is to be presumed that the testator would
not have made such other dispositions if the first invalid disposition had not been made" (Art.
792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the
valid parts will be upheld if they can be separated from the invalid without defeating the
intention of the testator or interfering with the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is
contrary to law because, although she was a coowner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her
heirs during her husband's lifetime but should be kept intact and that the legitimes should be
paid in cash is contrary to article 1080 of the Civil Code which reads:
ART. 1080. Should a person make a partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, to keep any agricultural,
industrial, or manufacturing enterprise intact, may avail himself of the right
granted him in this article, by ordering that the legitime of the other children to
whom the property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six children
(her husband had renounced his hereditary rights and his one-half conjugal share). She did
not assign the whole estate to one or more children as envisaged in article 1080. Hence, she
had no right to require that the legitimes be paid in cash. On the other hand, her estate may
remain undivided only for a period of twenty years. So, the provision that the estate should
not be divided during her husband's lifetime would at most be effective only for twenty years
from the date of her death unless there are compelling reasons for terminating the
coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the
conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation
partakes of a donation of his hereditary rights and his one-half share in the conjugal estate
(Art. 1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and
752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his
support and maintenance. Or at least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically valid
and the partition therein may be given effect if it does not prejudice the creditors and impair
the legitimes. The distribution and partition would become effective upon the death of Felix
Balanay, Sr. In the meantime, the net income should be equitably divided among the children
and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's will
and his renunciation of his hereditary rights, his one-half conjugal share became a part of his
deceased wife's estate. His conformity had the effect of validating the partition made in
paragraph V of the will without prejudice, of course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will shall
only pass thereby, as if the testator had it at the time of making the will, should it expressly
appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy
or devise of a thing belonging to another person is void, if the testator erroneously believed
that the thing pertained to him. But if the thing bequeathed, though not belonging to the
testator when he made the will, afterwards becomes his, by whatever title, the disposition
shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition
the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could
dispose of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the
husband, after the dissolution of the conjugal partnership, had assented to her testamentary
partition of the conjugal estate, such partition has become valid, assuming that the will may
be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted as
heir her sister and preterited her parents. Her will was intrinsically void because it preterited
her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "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." Since the preterition of the parents annulled the institution of the sister of the
testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil
Code).
1wph1.t
In the instant case, the preterited heir was the surviving spouse. His preterition did not
produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his
hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the will as
contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where the
will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal
validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code;
Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638,
October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in
itself prima facie proof that the supposed testator has willed that his estate should be
distributed in the manner therein provided, and it is incumbent upon the state that, if legally
tenable, such desire be given effect independent of the attitude of the parties affected
thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538,
565).
To give effect to the intention and wishes of the testatrix is the first and principal law in the
matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition
operative takes precedence over a construction that will nullify a provision of the will (Arts.
788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces
an intention on the part of the testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided and that the wishes of the
testator should prevail that sometimes the language of the will can be varied for the purpose
of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be followed and the
dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573,
June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will because
any disposition therein is better than that which the law can make (Castro vs. Bustos, L25913, February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors
although no executor or regular administrator has been appointed. The record reveals that it
appointed a special administrator. A notice to creditors is not in order if only a special
administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of administration, the court shall issue a
notice requiring all persons having money claims against the decedent to file them in the
office of the clerk of said court" clearly contemplates the appointment of an executor or
regular administrator and not that of a special administrator.
It is the executor or regular administrator who is supposed to oppose the claims against the
estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88,
Rules of Court).
We also take this occasion to point out that the probate court's appointment of its branch
clerk of court as special administrator (p. 30, Rollo) is not a salutary practice because it might
engender the suspicion that the probate Judge and his clerk of court are in cahoots in
milking the decedent's estate. Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate Judge might find it difficult to hold
him to a strict accountability. A court employee should devote his official time to his official
duties and should not have as a sideline the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and
its order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower
court is directed to conduct further proceedings in Special Case No. 1808 in consonance
with this opinion. Costs, against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.
Footnotes
* The pertinent provisions of the will are as follows:
"II. That I am the absolute owner of the southern half of the following conjugal
properties which I acquired during my married life with my husband, Felix
Balanay, Sr., namely: (Here follows an enumeration of nine lots).
1wph1.t
the nine conjugal lots. She did not restrict the partition to her one-half
conjugal share but included her husband's one-half share.).
+.wph!1
A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming the
judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil Case No.
3956, an action for Recognition.
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be
illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In his
Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of the suit,
SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as
the only surviving heir mentioned in his Last Will and Testament probated on March 10,
1969, or prior to his death, in Special Proceedings No. 842 of the same Court. ZONIA
entered her formal appearance as a "substitute defendant" on March 4, 1970 claiming
additionally that she was the sole heir of her father, SOLANO, and asking that she be
allowed to assume her duties as executrix of the probated Will with the least interference
from the GARCIAS who were "mere pretenders to be illegitimate children of SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental
Cause of Action" impugning the recognition of ZONIA as an acknowledged natural child with
the prayer that she be declared instead, like them, as an adulterous child of the DECEDENT.
ZONIA did not file any responsive pleading and the case proceeded to trial. The GARCIAS
further moved for the impleading of the SOLANO estate in addition to ZONIA, which was
opposed by the latter, but which the Trial Court granted in its Order dated April 15, 1970. 1
In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the
parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the
correct status of ZONIA, and 3) the hereditary share of each of them in view of the probated
Will. 2
On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered
judgment the dispositive portion of which decrees:
t.hqw
Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct Upon SOLANO's petition
(Exhibit "10"), the Will was duly probated on March 10, 1969 in Special Proceedings No. 842
of the Court of First Instance of Albay, Branch II, in a Decision also rendered by Judge
Ezequiel S. Grageda (Exhibit "12").
As above stated, these facts are not in question.
Petitioner maintains, however, that:
t.hqw
I
The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in declaring substitute defendant Zonia Ana Solano,
now petitioner, an illegitimate child of the late Dr. Meliton Solano in an action
where private respondents, as plaintiffs in the Court below, sought
recognition as natural children of Dr. Meliton Solano.
II
The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in ordering the division of the estate of Dr. Meliton
Solano between the petitioner and private respondents, when said estate is
under the jurisdiction and control of the probate Court in Special Proceedings
No. 842.
III
The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in declaring nun and void the institution of heir in the
last will and testament of Dr. Meliton Solano, which was duly probated in
special proceedings No. 842 of the Court of First Instance of Albay, and in
concluding that total intestacy resulted there from. 3
Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to
declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the
same action despite the pendency of Special Proceedings No. 842; and 3) to declare null
and void the institution of heir in the Last Win and Testament of SOLANO, which was duly
probated in the same Special Proceedings No. 842, and concluding that total intestacy
resulted.
It is true that the action below was basically one for recognition. However, upon notice of
SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving
heir ... as of as of now" 4 In her "Appearance of Substitute Defendant Zonia Ana T. Solano ...
Sole and Universal Heir", ZONIA specifically prayed that she be 6 allowed to assume her duties
as executrix and administratrix of the probated will and testament of the late Dr. Meliton Solano,
under Special Proceedings No. 842, which is already final and executory, with least interference
from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be
illegitimate children". In other words, ZONIA did not only rely upon SOLANO's Answer already of
record but asserted new rights in her capacity as sole and universal heir, "executrix and
administratrix, "and challenged the right of the GARCIAS to recognition. Thus, she was not
defending the case as a mere representative of the deceased but asserted rights and defenses in
her own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA ...
and Supplemental Cause of Action ... "vigorously denying that ZONIA was SOLANO's sole and
universal heir; that ZONIA could not legally be considered as SOLANO's acknowledged natural
child because of a legal impediment; that the admission to probate of SOLANO's Will was merely
conclusive as to its due execution; that the supposed recognition under a notarial instrument of
ZONIA as an acknowledged natural child was fraudulent and a product of misrepresentation; that
ZONIA's recognition in the Will as an acknowledged natural child is subject to nullification and
that at most ZONIA is, like them, an adulterous child of SOLANO with Trinidad Tuagnon.
During the trial, the GARCIAS presented evidence to prove their allegations not only in their
main complaint but also in their "Reply to Appearance and Supplemental Cause of Action".
ZONIA presented no objection to the presentation by the GARCIAS of their oral and
documentary evidence and even cross-examined their witnesses. ZONIA, for her part,
presented her own testimonial and documentary evidence, denied the relationship of the
GARCIAS' to SOLANO and presented the notarial recognition in her favor as an
acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised
by the parties in their own pleadings and pursuant to their respective evidence during the
trial, the litigation was converted into a contest between the GARCIAS and ZONIA precisely
as to their correct status as heirs and their respective rights as such. No error was committed
by either the Trial Court or the Appellate Court, therefore, in resolving the issue of ZONIA's
status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the
institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and
distributing the shares of the parties in SOLANO's estate when said estate was under the
jurisdiction and control of the Probate Court in Special Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar situation is thrust upon us here.
It should be recalled that SOLANO himself instituted the petition for probate of the Will during
his lifetime. That proceeding was not one to settle the estate of a deceased person that
would be deemed terminated only upon the final distribution of the residue of the hereditary
estate. With the Will allowed to probate, the case would have terminated except that it
appears that the parties, after SOLANO's death, continued to file pleadings therein.
Secondly, upon motion of the GARCIAS, and over the objection of ZONIA, the Trial Court
ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect,
therefore, the two cases were consolidated. The records further disclose that the action for
recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same
Branch of the Court and before the same presiding Judge. Thirdly, it is settled that the
allowance of a Will is conclusive only as to its due execution. 5 A probate decree is not
concerned with the intrinsic validity or legality of the provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the
facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that
ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO
and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth
in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained only in
1943, and, therefore, did not have the legal capacity to contract marriage at the time of
ZONIA's conception, 7 that being compulsory heirs, the GARCIAS were, in fact, pretended from
SOLANO's Last' Will and Testament; and that as a result of said preterition, the institution of
ZONIA as sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code.
t.hqw
The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ... 8
As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor
of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy,
recognized in Article 563 of the Civil Code, 9and should be respected in so far as it is not
inofficious. 10
So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of
the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding
that the entire Will is void and intestacy ensues, the pretention of the GARCIAS should annul
the institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired.
The Will, therefore, is valid subject to that limitation. 11 It is a plain that the intention of the
testator was to favor ZONIA with certain portions of his property, which, under the law, he had a
right to dispose of by Will, so that the disposition in her favor should be upheld as to the one-half
(1/2) portion of the property that the testator could freely dispose of. 12 Since the legitime of
illegitimate children consists of one half (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA
each have a right to participation therein in the proportion of one-third (1/3) each. ZONIA's
hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will
respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate.
As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated
in the Will is valid and should be respected.
The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et
al., 15 which held that where the institution of a universal heir is null and void due to pretention, the
Will is a complete nullity and intestate succession ensues, is not applicable herein because in the
Nuguid case, only a one-sentence Will was involved with no other provision except the institution
of the sole and universal heir; there was no specification of individual property; there were no
specific legacies or bequests. It was upon that factual setting that this Court declared:
t.hqw
The disputed order, we observe, declares the will in question 'a complete
nullity. Article 854 of the Civil Code in turn merely nullifies 'the institution of
heir'. Considering, however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null." (at p. 459)
In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the
Civil Code, supra, applies merely annulling the "institution of heir".
Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court
was never questioned before either Court. ZONIA herself had gone, without objection, to trial
on the issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of
jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held
estopped to repudiate that jurisdiction to which she had voluntarily submitted, after she had
received an unfavorable judgment, The leading case of Tijam vs. Sibonghanoy, 16 on this
point, declared:
t.hqw
1wph1.t
Separate Opinions
Separate Opinions
TEEHANKEE, J., concurring:
The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for
settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton
Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code.
Such allowance was granted and this terminated the proceeding, although as noted in the
Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death.
But the issues between the parties as to their status and hereditary shares in view of the
probated will naming petitioner as sole heir were expressly delineated, tried and determined
in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their
father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate
under the probated will) after his death. In effect, therefore, the two cases (assuming that the
probate proceeding could be deemed as having continued notwithstanding its termination
with the allowance in vitam of Dr. Solano's will) which were pending before the same judge
and the same branch of the trial court could be correctly said to have been. consolidated.
Finally, petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly
the jurisdiction of the trial and appellate courts to which she had submitted without question
her cause.
Footnotes
t.hqw
PARAS, J.:
This is a petition for review on certiorari of the decision
THIRD: All my shares that I may receive from our properties. house, lands
and money which I earned jointly with my wife Rosa Diongson shall all be
given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age
and presently residing at 357-C Sanciangko Street, Cebu City. In case my
brother Segundo Acain pre-deceased me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share
shall be given to me to his children, namely: Anita, Constantino, Concepcion,
Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and
the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following
grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is
merely a universal heir and (3) the widow and the adopted daughter have been pretirited.
(Rollo, p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition with
preliminary injunction which was subsequently referred to the Intermediate Appellate Court
by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p.
159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered
the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for
the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents'
Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the
Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon the
intrinsic validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code refers
to preterition of "compulsory heirs in the direct line," and does not apply to
private respondents who are not compulsory heirs in the direct line; their
omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the
law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests
that mere institution of a universal heir in the will would give the heir so
instituted a share in the inheritance but there is a definite distinct intention of
the testator in the case at bar, explicitly expressed in his will. This is what
matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio
Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall annul the institution of heir; but the
devisees and legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them
either because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966];
Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned,
Article 854 of the Civil Code may not apply as she does not ascend or descend from the
testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is
a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she
is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the
other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been
questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D.
No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person
the same rights and duties as if he were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted
and preterited in the will of the testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en
virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang
v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy
are the legacies and devises made in the will for they should stand valid and respected,
except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of
such institution of universal heirs-without any other testamentary disposition in the willamounts to a declaration that nothing at all was written. Carefully worded and in clear terms,
Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid),
supra. No legacies nor devises having been provided in the will the whole property of the
deceased has been left by universal title to petitioner and his brothers and sisters. The effect
of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri
v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already
stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a
probate proceeding he must have an interest iii the estate, or in the will, or in the property to
be affected by it either as executor or as a claimant of the estate and an interested party is
one who would be benefited by the estate such as an heir or one who has a claim against
the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there being no mention in the
testamentary disposition of any gift of an individual item of personal or real property he is
called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest
in the will as an heir, defined under Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by operation of law. However, intestacy having
resulted from the preterition of respondent adopted child and the universal institution of heirs,
petitioner is in effect not an heir of the testator. He has no legal standing to petition for the
probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be
dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned
order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465
[1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of
Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is
axiomatic that the remedies of certiorari and prohibition are not available where the petitioner
has the remedy of appeal or some other plain, speedy and adequate remedy in the course of
law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are,
however, proper remedies to correct a grave abuse of discretion of the trial court in not
dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court
of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent
Court, the general rule is that the probate court's authority is limited only to the extrinsic
validity of the will, the due execution thereof, the testator's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the
will normally comes only after the Court has declared that the will has been duly
authenticated. Said court at this stage of the proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449
[1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982];
Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139
SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid
the oppositors to the probate moved to dismiss on the ground of absolute preteriton The
probate court acting on the motion held that the will in question was a complete nullity and
dismissed the petition without costs. On appeal the Supreme Court upheld the decision of
the probate court, induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again
before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet
head-on the issue of the validity of the provisions of the will in question. After
all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the
surviving spouse was grounded on petitioner's lack of legal capacity to institute the
proceedings which was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition
deals with the validity of the provisions of the will. Respondent Judge allowed the probate of
the will. The Court held that as on its face the will appeared to have preterited the petitioner
the respondent judge should have denied its probate outright. Where circumstances demand
that intrinsic validity of testamentary provisions be passed upon even before the extrinsic
validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v.
Court of Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp.
Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1)
petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir;
and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was
denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds
for the motion to dismiss are matters properly to be resolved after a hearing on the issues in
the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for
reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to
progress when on its face the will appears to be intrinsically void as petitioner and his
brothers and sisters were instituted as universal heirs coupled with the obvious fact that one
of the private respondents had been preterited would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The trial court could
have denied its probate outright or could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v.
Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were
properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants
had the right to resort to the more speedy, and adequate remedies of certiorari and
prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed
by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and
even assuming the existence of the remedy of appeal, the Court harkens to the rule that in
the broader interests of justice, a petition for certiorari may be entertained, particularly where
appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the
questioned decision of respondent Court of Appeals promulgated on August 30, 1985 and its
Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento and Cortes, JJ., concur.
Separate Opinions
law is that he wants such heir to receive as little as possible from his estate.
(III Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the omission of the
adopted daughter, hence, my concurrence in the result that total intestacy ensued.
Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.
To my mind, an important distinction has to be made as to whether the omission of a forced
heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by
mistake or inadvertence, there is true preterirton and total intestacy results. The reason for
this is the "inability to determine how the testator would have distributed his estate if none of
the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing in the
will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225)
(Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is
not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated
otherwise. the nullity is partial unlike in true preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission; that is, that if the
testator had known of the existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir. On the other hand, if
the testator attempts to disinherit a compulsory heir, the presumption of the
law is that he wants such heir to receive as little as possible from his estate.
(III Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the omission of the
adopted daughter, hence, my concurrence in the result that total intestacy ensued.
Footnotes