Administration of the estate of Agripino Neri y Chavez.

ELEUTERIO NERI, ET
AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.

Ozamiz & Capistrano for petitioners.

Gullas, Leuterio, Tanner & Laput for respondents.

MORAN, J.:

Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six
children named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his
second marriage with Ignacia Akutin, five children named Gracia, Godofredo, Violeta,
Estela Maria, and Emma. Getulia, daughter in the first marriage, died on October 2,
1923, that is, a little less than eight years before the death of said Agripino Neri y
Chavez, and was survived by seven children named Remedios, Encarnacion, Carmen,
Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament, which was admitted to
probate on March 21, 1932, he willed that his children by the first marriage shall have
no longer any participation in his estate, as they had already received their
corresponding shares during his lifetime. At the hearing for the declaration of heirs, the
trial court found, contrary to what the testator had declared in his will, that all his
children by the first and second marriages intestate heirs of the deceased without
prejudice to one-half of the improvements introduced in the properties during the
existence of the last conjugal partnership, which should belong to Ignacia Akutin. The
Court of Appeals affirmed the trial court's decision with the modification that the will was
"valid with respect to the two-thirds part which the testator could freely dispose of. "This
judgment of the Court of Appeals is now sought to be reviewed in this petition
for certiorari.

The decisive question here raised is whether, upon the foregoing facts, the omission of
the children of the first marriage annuls the institution of the children of the first marriage
as sole heirs of the testator, or whether the will may be held valid, at least with respect
to one-third of the estate which the testator may dispose of as legacy and to the other
one-third which he may bequeath as betterment, to said children of the second
marriage.

The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read
in part as follows:

Disinheritance made without a statement of the cause, or for a cause the truth of
which, if contradicted, is not proven, ... shall annul the institution of the heir in so
far as it prejudices the person disinherited; but the legacies, betterments, and
other testamentary dispositions, in so far as they do no encroach upon the
legitime, shall be valid.
The appellate court thus seemed to have rested its judgment upon the impression that
the testator had intended to disinherit, though ineffectively, the children of the first
marriage. There is nothing in the will that supports this conclusion. True, the testator
expressly denied them any share in his estate; but the denial was predicated, not upon
the desire to disinherit, but upon the belief, mistaken though it was, that the children by
the first marriage had already received more than their corresponding shares in his
lifetime in the form of advancement. Such belief conclusively negatives all inference as
to any intention to disinherit, unless his statement to that effect is prove to be
deliberately fictitious, a fact not found by the Court of Appeals. The situation
contemplated in the above provision is one in which the purpose to disinherit is clear,
but upon a cause not stated or not proved, a situation which does not obtain in the
instant case.

The Court of Appeals quotes Manresa thus:

En el terreno de los principios, la solucion mas justa del problema que hemos
hecho notar al comentar el articulo, seria distinguir el caso en que el heredero
omitido viviese al otorgarse el testamento, siendo conocida su existencia por el
testador, de aquel en que, o naciese despues, o se ignorase su existencia,
aplicando en el primer caso la doctrina del articulo 851, y en el segundo la del
814. (6 Manresa, 354-355.)

But it must be observed that this opinion is founded on mere principles (en el terreno de
los principios) and not on the express provisions of the law. Manresa himself admits that
according to law, "no existe hoy cuestion alguna en esta materia: la pretericion produce
siempre los mismos efectos, ya se refiera a personas vivas al hacer el testamento o
nacidas despues. Este ultimo grupo solo puede hacer relacion a los descendientes
legitimos, siempre que ademas tengan derecho a legitima." (6 Manresa, 381.)

Appellants, on the other hand, maintain that the case is one of voluntary preterition of
four of the children by the first marriage, and of involuntary preterition of the children by
the deceased Getulia, also of the first marriage, and is thus governed by the provisions
of article 814 of the Civil Code, which read in part as follows:

The preterition of one or all of the forced heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall
void the institution of heir; but the legacies and betterments shall be valid, in so
far as they are not inofficious.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited.(Cf. 6 Manresa, 346.) In the
instant case, while the children of the first marriage were mentioned in the will, they
were not accorded any share in the heriditary property, without expressly being
disinherited. It is, therefore, a clear case of preterition as contended by appellants. The
omission of the forced heirs or anyone of them, whether voluntary or involuntary, is a
preterition if the purpose to disinherit is not expressly made or is not at least manifest.

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

Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without
prejudice to the widow's legal usufruct, with costs against respondents.