Case No.

4 ACAIN VS IAC GRN 72706 OCTOBER 27, 1987 FACTS: Constantitno filed for probate of the will of his decased brother Nemesio. The spouse and adopted child of the decedent opposed the probate of will because of preterition. RTC dismissed the petition of the wife. CA reversed and the probate thus was dismissed ISSUE: Whether or not there was preterition of compulsory heirs in the direct line thus their omission shall not annul the institution of heirs. RULING: Preterition consists in the omission of the forced heirs because they are not mentioned there in, or trough mentioned they are neither instituted as heirs nor are expressly disinherited. As for the widow there is no preterit ion because she is not in the direct line. However, the same cannot be said for the adopted child whose legal adoption has not been questioned by the petitioner. Adoption gives to the adopted person the same rights and duties as if he where a legitimate child of the adopter and makes the adopted person a legal heir hence, this is a clear case of preterition. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs without any other testamentary disposition in the will amounts to a declaration that nothing was written. No legacies and devisees 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. Acain v. IAC GR No. 72706, October 27, 1987 Facts: In 1960, Nemesio Acain wrote a will giving all his properties to his brother Segundo, or, in case Segundo predeceases Nemesio, to Segundos children. Segundo died before Nemesio. Petitioner Constantino is one of Segundos children. In 1984, after the death of Nemesio, Constantino petitioned the court to have the will probated. This was opposed by Rosa Diongson, Nemesios wife, and Virginia Fernandez, a legally adopt ed child of Nemesio and Rosa. The opposition was denied by the trial court, hence Diongson and Fernandez went to the SC, which transferred the case to the CA. The CA ordered the trial court to dismiss the probate petition since Diongson and Fernandez were preterited. Constantino went to the SC on certiorari, contending that the CA could not rule on the intrinsic validity of the will before it is admitted for probate. Diongson and Fernandez opposed, contending that certiorari is not a proper remedy. Issues: Whether or not certiorari is a proper remedy. Whether or not probate courts (the CA in this case) could rule on the intrinsic validity of a will before the will is probated. Whether or not Diongson was preterited. Whether or not Fernandez was preterited. Rulings: Yes, certiorari is a proper remedy. The existence of the remedy of appeal does not preclude certiorari, if appeal would not afford speedy and adequate relief.

Yes. For practical considerations [???], the CA should be allowed to rule on the intrinsic validity of a will before the will was

probated. If the probate of the will is allowed when on its face the will appears to be intrinsically void would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. No. 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. Yes. Her legal adoption by the Nemesio has not been questioned by Constantino. 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.