SUCCESSION CASES

PRETERITION

G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will of
Leodegaria Julian. FELIX BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of
First Instance of Davao, Branch VI; AVELINA B.
ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.
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

AQUINO, J.: contended that the affidavit and "conformation" of Felix
Balanay, Sr. were void. The lower court in its order of
Felix Balanay, Jr. appealed by certiorari from the order of June 18, 1973 "denied" the opposition and reset for
the Court of First Instance of Davao dated February 28, hearing the probate of the will. It gave effect to the
1974, declaring illegal and void the will of his mother, affidavit and conformity of Felix Balanay, Sr. In an order
Leodegaria Julian, converting the testate proceeding into dated August 28, 1973 it appointed its branch clerk of
an intestate proceeding and ordering the issuance of the court as special administrator of the decedent's estate.
corresponding notice to creditors (Special Case No. 1808).
The antecedents of the appeal are as follows: Mrs. Antonio moved for the reconsideration of the lower
court's order of June 18, 1973 on the grounds (a) that the
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on testatrix illegally claimed that she was the owner of the
February 12, 1973 in Davao City at the age of sixty-seven. southern half of the conjugal lots and (b) that she could
She was survived by her husband, Felix Balanay, Sr., and not partition the conjugal estate by allocating portions of
by their six legitimate children named Felix Balanay, Jr., the nine lots to her children. Felix Balanay, Jr., through
Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, his counsel, Hermenegildo Cabreros, opposed that
Delia B. Lanaban and Emilia B. Pabaonon. motion. The lower court denied it in its order of October
15, 1973.
Felix J. Balanay, Jr. filed in the lower court a petition dated
February 27, 1973 for the probate of his mother's notarial In the meanwhile, another lawyer appeared in the case.
will dated September 5, 1970 which is written in English. In David O. Montaña, Sr., claiming to be the lawyer of
that will Leodegaria Julian declared (a) that she was the petitioner Felix Balanay, Jr. (his counsel of record was
owner of the "southern half of nine conjugal lots (par. II); Atty. Cabreros), filed a motion dated September 25, 1973
(b) that she was the absolute owner of two parcels of land for "leave of court to withdraw probate of alleged will of
which she inherited from her father (par. III), and (c) that it Leodegaria Julian and requesting authority to proceed by
was her desire that her properties should not be divided intestate estate proceeding." In that motion Montaña
among her heirs during her husband's lifetime and that claimed to be the lawyer not only of the petitioner but
their legitimes should be satisfied out of the fruits of her also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B.
properties (Par. IV). Manguiob and Emilia B. Pabaonon.

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.
Montaña 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.

1
The lower court, acting on the motions of Atty. Montaña, The rule is that "the invalidity of one of several
assumed that the issuance of a notice to creditors was in dispositions contained in a will does not result in the
order since the parties had agreed on that point. It adopted invalidity of the other dispositions, unless it is to be
the view of Attys. Montaña and Guyo that the will was void. presumed that the testator would not have made such
So, in its order of February 28, 1974 it dismissed the other dispositions if the first invalid disposition had not
petition for the probate, converted the testate proceeding been made" (Art. 792, Civil Code). "Where some of the
into an intestate proceeding, ordered the issuance of a provisions of a will are valid and others invalid, the valid
notice to creditors and set the intestate proceeding for parts will be upheld if they can be separated from the
hearing on April 1 and 2, 1974. The lower court did not invalid without defeating the intention of the testator or
abrogate its prior orders of June 18 and October 15, 1973. interfering with the general testamentary scheme, or
The notice to creditors was issued on April 1, 1974 and doing injustice to the beneficiaries" (95 C.J.S. 873).
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 The statement of the testatrix that she owned the
held in abeyance. "southern half of the conjugal lands is contrary to law
because, although she was a coowner thereof, her share
Felix Balanay, Jr., through a new counsel, Roberto M. was inchoate and proindiviso (Art. 143, Civil Code;
Sarenas, in a verified motion dated April 15, 1974, asked Madrigal and Paterno vs. Rafferty and Concepcion, 38
for the reconsideration of the lower court's order of Phil. 414). But That illegal declaration does not nullify the
February 28, 1974 on the ground that Atty. Montaña had no entire will. It may be disregarded.
authority to withdraw the petition for the allowance of the
will. Attached to the motion was a copy of a letter dated The provision of the will that the properties of the
March 27, 1974 addressed to Atty. Montaña and signed by testatrix should not be divided among her heirs during
Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob her husband's lifetime but should be kept intact and that
and Emilia B. Pabaonon, wherein they terminated the legitimes should be paid in cash is contrary to article
Montaña's services and informed him that his withdrawal of 1080 of the Civil Code which reads:
the petition for the probate of the will was without their
consent and was contrary to their repeated reminder to him ART. 1080. Should a person make a partition of his estate
that their mother's will was "very sacred" to them. by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of
Avelina B. Antonio and Delia B. Lanaban opposed the the compulsory heirs.
motion for reconsideration. The lower court denied the
motion in its order of June 29, 1974. It clarified that it A parent who, in the interest of his or her family, to keep
declared the will void on the basis of its own independent any agricultural, industrial, or manufacturing enterprise
assessment of its provisions and not because of Atty. intact, may avail himself of the right granted him in this
Montaña's arguments. article, by ordering that the legitime of the other children
to whom the property is not assigned be paid in cash.
The basic issue is whether the probate court erred in (1056a)
passing upon the intrinsic validity of the will, before ruling
on its allowance or formal validity, and in declaring it void. The testatrix in her will made a partition of the entire
conjugal estate among her six children (her husband had
We are of the opinion that in view of certain unusual renounced his hereditary rights and his one-half conjugal
provisions of the will, which are of dubious legality, and share). She did not assign the whole estate to one or
because of the motion to withdraw the petition for probate more children as envisaged in article 1080. Hence, she
(which the lower court assumed to have been filed with the had no right to require that the legitimes be paid in cash.
petitioner's authorization), the trial court acted correctly in On the other hand, her estate may remain undivided only
passing upon the will's intrinsic validity even before its for a period of twenty years. So, the provision that the
formal validity had been established. The probate of a will estate should not be divided during her husband's
might become an idle ceremony if on its face it appears to lifetime would at most be effective only for twenty years
be intrinsically void. Where practical considerations from the date of her death unless there are compelling
demand that the intrinsic validity of the will be passed upon, reasons for terminating the coownership (Art. 1083, Civil
even before it is probated, the court should meet the issue Code).
(Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare
with Sumilang vs. Ramagosa, L-23135, December 26, 1967, Felix Balanay, Sr. could validly renounce his hereditary
21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 rights and his one-half share of the conjugal partnership
SCRA 693).1äwphï1.ñët (Arts. 179[1] and 1041, Civil Code) but insofar as said
renunciation partakes of a donation of his hereditary
But the probate court erred in declaring, in its order of rights and his one-half share in the conjugal estate (Art.
February 28, 1974 that the will was void and in converting 1060[1] Civil Code), it should be subject to the limitations
the testate proceeding into an intestate proceeding prescribed in articles 750 and 752 of the Civil Code. A
notwithstanding the fact that in its order of June 18, 1973 , portion of the estate should be adjudicated to the
it gave effect to the surviving husband's conformity to the widower for his support and maintenance. Or at least his
will and to his renunciation of his hereditary rights which legitime should be respected.
presumably included his one-half share of the conjugal
estate.
2
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).1äwphï1.ñët
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, L-25913,
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
3
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).1äwphï1.ñët
"III. I am the absolute owner of the following paraphernal properties which I
inherited from my deceased father, Cecilio Julian, namely: (Here follows a
description of two lots).
"IV. It is my desire and I direct that in the interest of my family, my properties
shall not be divided among my heirs during the lifetime of my husband, Felix
Balanay, Sr. but should be kept intact. The respective legitimes of my husband
and my children should be paid in cash out of the proceeds of sale of the
produce and rents derived from said properties.
"V. After the death of my husband, Felix Balanay, Sr., my properties shall be
divided and distributed in the manner as follows:" (Here follows a partition of
the nine conjugal lots and the two paraphernal lots. The testatrix divided
among her six children not only her two paraphernal lots, one of which she
devised to Emilia Pabaonon and the other lot to Felix Balanay, Jr., but also the
nine conjugal lots. She did not restrict the partition to her one-half conjugal
share but included her husband's one-half share.).
PRETERITION
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA
NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on
December 30, 1962, single, without descendants,
legitimate or illegitimate. Surviving her were her legitimate
parents, Felix Nuguid and Paz Salonga Nuguid, and six (6)
brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the
Court of First Instance of Rizal a holographic will allegedly
executed by Rosario Nuguid on November 17, 1951, some
11 years before her demise. Petitioner prayed that said will
be admitted to probate and that letters of administration
with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the
deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by
the institution of petitioner Remedios Nuguid as universal
heir of the deceased, oppositors — who are compulsory
heirs of the deceased in the direct ascending line — were
illegally preterited and that in consequence the institution
is void.
On August 29, 1963, before a hearing was had on the
petition for probate and objection thereto, oppositors
moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her
opposition to the motion to dismiss.1äwphï1.ñët
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
4
 I, ROSARIO NUGUID, being of sound and
disposing mind and memory, having
amassed a certain amount of property, do
hereby give, devise, and bequeath all of
the property which I may have when I die
to my beloved sister Remedios Nuguid, age
34, residing with me at 38-B Iriga, Q.C. In
witness whereof, I have signed my name
this seventh day of November, nineteen
hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO 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 añade
limitacion alguna, como en el articulo 851, en el que se
expresa que se anulara la institucion de heredero en
cuanto prejudique a la legitima del deseheredado Debe,
pues, entenderse que la anulacion es completa o total, y
que este articulo como especial en el caso que le motiva
rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la
institucion de heredero por pretericion de uno, varios o
todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el
testador que comete la pretericion, hubiese dispuesto de
todos los bienes por titulo universal de herencia en favor
de los herederos instituidos, cuya institucion se anula,
porque asi lo exige la generalidad del precepto legal del
art. 814, al determinar, como efecto de la pretericion, el
de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the
statute, there is no escaping the conclusion that the
universal institution of petitioner to the entire inheritance
results in totally abrogating the will. Because, the
nullification of such institution of universal heir — without
any other testamentary disposition in the will — amounts
to a declaration that nothing at all was written. Carefully
worded and in clear terms, Article 854 offers no leeway
for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute.
On this point, Sanchez Roman cites the "Memoria annual
5
del Tribunal Supreme, correspondiente a 1908", which in
our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion
la nulidad de la institucion de heredero, no consiente
interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun
caso pudiera ser, mas o menos equitativa, porque una
nulidad no significa en Derecho sino la suposicion de que el
hecho o el acto no se ha realizado, debiendo por lo tanto
procederse sobre tal base o supuesto, y consiguientemente,
en un testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como habria
que llamar a los de otra clase, cuando el testador no
hubiese distribudo todos sus bienes en legados, siendo
tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado
la jurisprudencia, con repeticion, que no basta que sea
conocida la voluntad de quien testa si esta voluntad no
aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria
una interpretacion arbitraria, dentro del derecho positivo,
reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la
voluntad del testador, pues aun cuando asi fuese, sera esto
razon para modificar la ley, pero no autoriza a una
interpretacion contraria a sus terminos y a los principios
que informan la testamentifaccion, pues no porque parezca
mejor una cosa en el terreno del Derecho constituyente,
hay razon para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer. 12
3. We should not be led astray by the statement in Article
854 that, annullment notwithstanding, "the devises and
legacies shall be valid insofar as they are not inofficious".
Legacies and devises merit consideration only when they
are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in
a will — void because of preterition — would give the heir
so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies
apart and separate from the nullified institution of heir.
Sanchez Roman, speaking of the two component parts of
Article 814, now 854, states that preterition annuls the
institution of the heir "totalmente por la pretericion"; but
added (in reference to legacies and bequests) "pero
subsistiendo ... 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 la desheredacion. 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,
6
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 PRETERITION
observed that the institution of heirs is therein dealt with as
a thing separate and distinct from legacies or betterments. G.R. No. 72706 October 27, 1987
And they are separate and distinct not only because they
are distinctly and separately treated in said article but CONSTANTINO C. ACAIN, petitioner,
because they are in themselves different. Institution of vs.
heirs is a bequest by universal title of property that is HON. INTERMEDIATE APPELLATE COURT (Third
undetermined. Legacy refers to specific property Special Cases Division), VIRGINIA A. FERNANDEZ
bequeathed by a particular or special title. ... But again an and ROSA DIONGSON, respondents.
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
PARAS, J.:
turn merely nullifies "the institution of heir". Considering,
however, that the will before us solely provides for the
This is a petition for review on certiorari of the
institution of petitioner as universal heir, and nothing more,
decision * of respondent. Court of Appeals in AC-G.R. SP
the result is the same. The entire will is null.
No. 05744 promulgated on August 30, 1985 (Rollo, p.
108) ordering the dismissal of the petition in Special
Upon the view we take of this case, the order of November
Proceedings No, 591 ACEB and its Resolution issued on
8, 1963 under review is hereby affirmed. No costs allowed.
October 23, 1985 (Rollo, p. 72) denying respondents'
So ordered.
(petitioners herein) motion for reconsideration.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala,

The dispositive portion of the questioned decision reads
Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.
as follows:

WHEREFORE, the petition is hereby granted and

respondent Regional Trial Court of the Seventh Judicial
Region, Branch XIII (Cebu City), is hereby ordered to
dismiss the petition in Special Proceedings No. 591 ACEB
No special pronouncement is made as to costs.

The antecedents of the case, based on the summary of

the Intermediate Appellate Court, now Court of Appeals,
(Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the

Regional Trial Court of Cebu City Branch XIII, a petition
for the probate of the will of the late Nemesio Acain and
for the issuance to the same petitioner of letters
testamentary, docketed as Special Proceedings No. 591
ACEB (Rollo, p. 29), on the premise that Nemesio Acain
died leaving a will in which petitioner and his brothers
Antonio, Flores and Jose and his sisters Anita, Concepcion,
Quirina and Laura were instituted as heirs. The will
allegedly executed by Nemesio Acain on February 17,
1960 was written in Bisaya (Rollo, p. 27) with a
translation in English (Rollo, p. 31) submi'tted by
petitioner without objection raised by private
respondents. The will contained provisions on burial rites,
payment of debts, and the appointment of a certain Atty.
Ignacio G. Villagonzalo as the executor of the testament.

7
On the disposition of the testator's property, the will
provided:
THIRD: All my shares that I may receive from our
properties. house, lands and money which I earned jointly
with my wife Rosa Diongson shall all be given by me to my
brother SEGUNDO ACAIN Filipino, widower, of legal age
and presently residing at 357-C Sanciangko Street, Cebu
City. In case my brother Segundo Acain 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
8
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.
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]).

Pretention annuls the institution of an heir and annulment Special Proceedings No. 591 ACEB is for the probate of a
throws open to intestate succession the entire inheritance will. As stated by respondent Court, the general rule is
including "la porcion libre (que) no hubiese dispuesto en that the probate court's authority is limited only to the
virtual de legado mejora o donacion" Maniesa as cited in extrinsic validity of the will, the due execution thereof,
Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, the testator's testamentary capacity and the compliance
114 SCRA [1982]). The only provisions which do not result with the requisites or solemnities prescribed by law. The
in intestacy are the legacies and devises made in the will for intrinsic validity of the will normally comes only after the
they should stand valid and respected, except insofar as the Court has declared that the will has been duly
legitimes are concerned. authenticated. Said court at this stage of the proceedings
is not called upon to rule on the intrinsic validity or
The universal institution of petitioner together with his efficacy of the provisions of the will (Nuguid v. Nuguid, 17
brothers and sisters to the entire inheritance of the testator SCRA 449 [1966]; Sumilang v. Ramagosa, supra;
results in totally abrogating the will because the nullification Maninang v. Court of Appeals, 114 SCRA 478 [1982];
of such institution of universal heirs-without any other Cayetano v. Leonides, 129 SCRA 522 [1984]; and
testamentary disposition in the will-amounts to a Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
declaration that nothing at all was written. Carefully worded
and in clear terms, Article 854 of the Civil Code offers no The rule, however, is not inflexible and absolute. Under
leeway for inferential interpretation (Nuguid v. Nuguid), exceptional circumstances, the probate court is not
supra. No legacies nor devises having been provided in the powerless to do what the situation constrains it to do and
will the whole property of the deceased has been left by pass upon certain provisions of the will (Nepomuceno v.
universal title to petitioner and his brothers and sisters. The Court of Appeals, supra). In Nuguid v. Nuguid the
effect of annulling the "Institution of heirs will be, oppositors to the probate moved to dismiss on the
necessarily, the opening of a total intestacy (Neri v. Akutin, ground of absolute preteriton The probate court acting
74 Phil. 185 [1943]) except that proper legacies and on the motion held that the will in question was a
devises must, as already stated above, be respected. complete nullity and dismissed the petition without costs.
On appeal the Supreme Court upheld the decision of the
We now deal with another matter. In order that a person probate court, induced by practical considerations. The
may be allowed to intervene in a probate proceeding he Court said:
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 We pause to reflect. If the case were to be remanded for
claimant of the estate and an interested party is one who probate of the will, nothing will be gained. On the
would be benefited by the estate such as an heir or one contrary, this litigation will be protracted. And for aught
who has a claim against the estate like a creditor (Sumilang that appears in the record, in the event of probate or if
v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the the court rejects the will, probability exists that the case
appointed executor, neither a devisee or a legatee there will come up once again before us on the same issue of
being no mention in the testamentary disposition of any gift the intrinsic validity or nullity of the will. Result: waste of
of an individual item of personal or real property he is called time, effort, expense, plus added anxiety. These are the
upon to receive (Article 782, Civil Code). At the outset, he practical considerations that induce us to a belief that we
appears to have an interest in the will as an heir, defined might as well meet head-on the issue of the validity of the
under Article 782 of the Civil Code as a person called to the provisions of the will in question. After all there exists a
succession either by the provision of a will or by operation justiciable controversy crying for solution.
of law. However, intestacy having resulted from the
preterition of respondent adopted child and the universal In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the
institution of heirs, petitioner is in effect not an heir of themotion to dismiss the petition by the surviving spouse
testator. He has no legal standing to petition for the was grounded on petitioner's lack of legal capacity to
probate of the will left by the deceased and Special institute the proceedings which was fully substantiated by
Proceedings No. 591 A-CEB must be dismissed. the evidence during the hearing held in connection with
said motion. The Court upheld the probate court's order
As a general rule certiorari cannot be a substitute for appeal, of dismissal.
except when the questioned order is an oppressive exercise
of j judicial authority (People v. Villanueva, 110 SCRA 465 In Cayetano v. Leonides, supra one of the issues raised
[1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; in the motion to dismiss the petition deals with the
Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; validity of the provisions of the will. Respondent Judge
and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is allowed the probate of the will. The Court held that as on
axiomatic that the remedies of certiorari and prohibition are its face the will appeared to have preterited the petitioner
not available where the petitioner has the remedy of appeal the respondent judge should have denied its probate
or some other plain, speedy and adequate remedy in the outright. Where circumstances demand that intrinsic
9
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
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.
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
10
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.

11

PRETERITION
G.R. No. L-47799 June 13, 1941
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.)
12
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.Avanceña, C.J., Diaz, Laurel and
Horrilleno, JJ., concur.
PRETERITION
G.R. No. 137287 February 15, 2000
REBECCA VIADO NON, JOSE A. NON and DELIA
VIADO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, ALICIA N.
VIADO, CHERRI VIADO and FE FIDES
VIADO,respondents.
VITUG, J.:
Petitioners, in their petition for review on certiorari under
Rule 45 of the Rules of Court, seek a reversal of the 29th
May 1996 decision of the Court of Appeals, basically
affirming that rendered on 30 April 1991 by the Regional
Trial Court ("RTC") of Queron City, Branch 23, adjudicating
the property subject matter of the litigation to
respondents. The case and the factual settings found by
the Court of Appeals do not appear to deviate
significantly from that made by the trial court.
During their lifetime, the spouses Julian C. Viado and
Virginia P. Viado owned several pieces of property,
among them a house and lot located at 147 Isarog Street,
La Loma, Quezon City, covered by Transfer Certificate of
Title No. 42682. Virginia P. Viado died on 20 October
1982. Julian C. Viado died three years later on 15
November 1985. Surviving them were their children —
Nilo Viado, Leah Viado Jacobs, and herein petitioners
Rebecca Viado, married to Jose Non, and Delia Viado.
Nilo Viado and Leah Viado Jacobs both died on 22 April
1987. Nilo Viado left behind as his own sole heirs herein
respondents — his wife Alicia Viado and their two children
Cherri Viado and Fe Fides Viado.
Petitioners and respondents shared, since 1977, a
common residence at the Isarog property. Soon, however,
tension would appear to have escalated between
petitioner Rebecca Viado and respondent Alicia Viado
after the former had asked that the property be equally
divided between the two families to make room for the
growing children. Respondents, forthwith, claimed
absolute ownership over the entire property and
demanded that petitioners vacate the portion occupied
by the latter. On 01 February 1988, petitioners, asserting
co-ownership over the property in question, filed a case
for partition before the Quezon City RTC (Branch
93).1âwphi1.nêt
Respondents predicated their claim of absolute
ownership over the subject property on two documents
— a deed of donation executed by the late Julian Viado
covering his one-half conjugal share of the Isarog
property in favor of Nilo Viado and a deed of extrajudicial
settlement in which Julian Viado, Leah Viado Jacobs
(through a power of attorney in favor of Nilo Viado) and
petitioner Rebecca Viado waived in favor of Nilo Viado
their rights and interests over their share of the property
inherited from Virginia Viado. Both instruments were
executed on 26 August 1983 and registered on 07
January 1988 by virtue of which Transfer Certificate of
Title No. 42682 was cancelled and new Transfer
Certificate of Title No. 373646 was issued to the heirs of
Nilo Viado.
Petitioners, in their action for partition, attacked the
validity of the foregoing instruments, contending that the
late Nilo Viado employed forgery and undue influence to
coerce Julian Viado to execute the deed of donation.
Petitioner Rebecca Viado, in her particular case, averred
that her brother Nilo Viado employed fraud to procure her
signature to the deed of extrajudicial settlement. She
added that the exclusion of her retardate sister, Delia
Viado, in the extrajudicial settlement, resulted in the
latter's preterition that should warrant its annulment.
Finally, petitioners asseverated that the assailed
instruments, although executed on 23 August 1983, were
registered only five years later, on 07 January 1988,
when the three parties thereto, namely, Julian Viado, Nilo
Viado and Leah Viado Jacobs had already died.
13
Assessing the evidence before it, the trial court found for
respondents and adjudged Alicia Viado and her children as
being the true owners of the disputed property.
On appeal, the Court of Appeals affirmed the decision of the
trial court with modification by ordering the remand of the
records of the case to the court a quo for further
proceedings to determine the value of the property and the
amount respondents should pay to petitioner Delia Viado
for having been preterited in the deed of extrajudicial
settlement.
Petitioners are now before the Supreme Court to seek the
reversal of the decision of the Court of Appeals.
The appellate court ruled correctly.
When Virginia P. Viado died intestate in 1982, her part of
the conjugal property, the Isarog property in question
included, was transmitted to her heirs — her husband
Julian and their children Nilo Viado, Rebecca Viado, Leah
Viado and Delia Viado. The inheritance, which vested from
the moment of death of the decedent,1 remained under a
co-ownership regime2 among the heirs until
3
partition. Every act intended to put an end to indivision
among co-heirs and legatees or devisees would be a
partition although it would purport to be a sale, an
exchange, a compromise, a donation or an extrajudicial
settlement.4
In debunking the continued existence of a co-ownership
among the parties hereto, respondents rely on the deed of
donation and deed of extrajudicial settlement which
consolidated the title solely to Nilo Viado. Petitioners assail
the due execution of the documents on the grounds
heretofore expressed.
Unfortunately for petitioners, the issues they have raised
boil down to the appreciation of the evidence, a matter that
has been resolved by both the trial court and the appellate
court. The Court of Appeals, in sustaining the court a quo,
has found the evidence submitted by petitioners to be
utterly wanting, consisting of, by and large, self-serving
testimonies. While asserting that Nilo Viado employed fraud,
forgery and undue influence in procuring the signatures of
the parties to the deeds of donation and of extrajudicial
settlement, petitioners are vague, however, on how and in
what manner those supposed vices occurred. Neither have
petitioners shown proof why Julian Viado should be held
incapable of exercising sufficient judgment in ceding his
rights and interest over the property to Nilo Viado. The
asseveration of petitioner Rebecca Viado that she has
signed the deed of extrajudicial settlement on the mistaken
belief that the instrument merely pertained to the
administration of the property is too tenuous to accept. It is
also quite difficult to believe that Rebecca Viado, a teacher
by profession, could have misunderstood the tenor of the
assailed document.
The fact alone that the two deeds were registered five
years after the date of their execution did not adversely
affect their validity nor would such circumstance alone be
indicative of fraud. The registration of the documents was a
ministerial act5 and merely created a constructive notice of
its contents against all third persons.6 Among the parties,
the instruments remained completely valid and binding.
The exclusion of petitioner Delia Viado, alleged to be a
retardate, from the deed of extrajudicial settlement verily
has had the effect of preterition. This kind of preterition,
however, in the absence of proof of fraud and bad faith,
does not justify a collateral attack on Transfer Certificate
of Title No. 373646. The relief, as so correctly pointed out
by the Court of Appeals, instead rests on Article 1104 of
the Civil Code to the effect that where the preterition is
not attended by bad faith and fraud, the partition shall
not be rescinded but the preterited heir shall be paid the
value of the share pertaining to her. Again, the appellate
court has thus acted properly in ordering the remand of
the case for further proceedings to make the proper
valuation of the isarog property and ascertainment of the
amount due petitioner Delia Viado.1âwphi1.nêt
WHEREFORE, the instant petition is DENIED, and the
decision, dated 29 May 1996, in CA-G.R. No. 37272 of the
Court of Appeals is AFFIRMED. No special
pronouncement on costs.
SO ORDERED.
Melo, Panganiban, Purisima and Gonzaga-Reyes,
JJ., concur.
Footnotes
1
See Baritua vs. CA, 183 SCRA 565.
2
There is co-ownership when the title of an undivided
thing or right belongs to different persons (see Article
484, Civil Code).
3
Partition is the division between two or more persons of
real or personal property which they own as co-partners,
co-tenants or tenants in common, effected by the setting
apart of such interests so that they may enjoy and
possess it in severalty. (Vilamor vs. CA, 162 SCRA 574.)
4
See Favor vs. CA, 194 SCRA 308.
5
The registrar of deeds is not authorized to determine
whether or not fraud was committed in the deed sought
to be registered. (In re Consults of Vicente J. Francisco
on behalf of Cabantog, 67 Phil. 222.)
6
People vs. Reyes, 175 SCRA 597, 604, citing Legarda
and Prieto vs. Saleeby, 31 Phil. 590; Garcia vs. CA, 95
SCRA 380; Hongkong and Shanghai Banking Corp. vs.
Pauli, et al., 161 SCRA 634.
14
FIDEICOMMISSARY SUBSTITUTION

G.R. No. L-31703 February 13, 1930

CARMEN G. DE PEREZ, trustee of the estate of Ana

Maria Alcantara, plaintiff-appellee,
vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO,
Sheriff of the Court of First Instance of
Manila,defendants-appellants.

L. D. Lockwood and Jose M. Casal for appellants.

Eduardo Gutierrez Repide and Leoncio B. Monzon for
appellee.

ROMUALDEZ, J.:

The amount of P21,428.58 is on deposit in the plaintiff's

name with the association known as La Urbana in Manila,
as the final payment of the liquidated credit of Ana Maria
Alcantara, deceased, whose heiress is said plaintiff,
against Andres Garchitorena, also deceased, represented
by his son, the defendant Mariano Garchitorena.

And as said Mariano Garchitorena held a judgment for

P7,872.23 against Joaquin Perez Alcantara, husband of
the plaintiff, Carmen G. de Perez, the sheriff pursuant to
the writ of execution issued in said judgment, levied an
attachment on said amount deposited with La Urbana.

The plaintiff, alleging that said deposit belongs to the

fideicommissary heirs of the decedent Ana Maria
Alcantara, secured a preliminary injunction restraining
the execution of said judgment on the sum so attached.
The defendants contend that the plaintiff is the
decedent's universal heiress, and pray for the dissolution
of the injunction.

The court below held that said La Urbana deposit belongs

to the plaintiff's children as fideicommissary heirs of Ana
Maria Alcantara, and granted a final writ of injunction.

The defendants insist in their contentions, and, in their

appeal from the decision of the trial court, assign the
following errors:

1. The lower court erred in holding that a trust was

created by the will of Doña Ana Maria Alcantara.

2. The lower court erred in concluding and declaring that

the amount of P21,428.58 deposited with La Urbana is
the property of the children of the plaintiff as "herederos
fidei-comisarios."

3. The lower court erred in making the injunction

permanent and condemning defendant to pay the costs.

The question here raised is confined to the scope and

meaning of the institution of heirs made in the will of the
late Ana Maria Alcantara already admitted to probate,
and whose legal force and effect is not in dispute.

15
The clauses of said will relevant to the points in dispute,
between the parties are the ninth, tenth, and eleventh,
quoted below:
Ninth. Being single and without any forced heir, to show my
gratitude to my niece-in-law, Carmen Garchitorena, of age,
married to my nephew, Joaquin Perez Alcantara, and living
in this same house with me, I institute her as my sole and
universal heiress to the remainder of my estate after the
payment of my debts and legacies, so that upon my death
and after probate of this will, and after the report of the
committee on claims and appraisal has been rendered and
approved, she will receive from my executrix and properties
composing my hereditary estate, that she may enjoy them
with God's blessing and my own.
Tenth. Should my heiress Carmen Garchitorena die, I order
that my whole estate shall pass unimpaired to her surviving
children; and should any of these die, his share shall serve
to increase the portions of his surviving brothers (and
sisters) by accretion, in such wise that my estate shall
never pass out of the hands of my heiress or her children in
so far as it is legally possible.
Eleventh. Should my aforesaid heiress, Carmen
Garchitorena, die after me while her children are still in
their minority, I order that my estate be administered by
my executrix, Mrs. Josefa Laplana, and in her default, by
Attorney Ramon Salinas and in his default, by his son
Ramon Salinas; but the direction herein given must not be
considered as an indication of lack of confidence in my
nephew Joaquin Perez Alcantara, whom I relieve from the
duties of administering my estate, because I recognize that
his character is not adapted to management and
administration.
The appellants contend that in these clauses the testatrix
has ordered a simple substitution, while the appellee
contends that it is a fideicommissary substitution.
This will certainly provides for a substitution of heirs, and of
the three cases that might give rise to a simple substitution
(art. 774, Civil Code), only the death of the instituted
heiress before the testatrix would in the instant case give
place to such substitution, inasmuch as nothing is said of
the waiver of inheritance, or incapacity to accept it. As a
matter of fact, however, clause XI provides for the
administration of the estate in case the heiress instituted
should die after the testatrix and while the substitute heirs
are still under age. And it is evident that, considering the
nature of simple substitution by the heir's death before the
testator, and the fact that by clause XI in connection with
clause X, the substitution is ordered where the heiress
instituted dies after the testatrix, this cannot be a case of
simple substitution.
The existence of a substitution in the will is not and cannot
be denied, and since it cannot be a simple substitution in
the light of the considerations above stated, let us now see
whether the instants case is a fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein her
sole and universal heiress, and provides that upon her
death (the testatrix's) and after probate of the will and
approval of the report of the committee on claims and
appraisal, said heiress shall receive and enjoy the whole
hereditary estate. Although this clause provides nothing
explicit about substitution, it does not contain anything in
conflict with the idea of fideicommissary substitution. The
fact that the plaintiff was instituted the sole and universal
heiress does not prevent her children from receiving,
upon her death and in conformity with the express desire
of the testatrix, the latter's hereditary estate, as provided
in the following (above quoted) clauses which cannot be
disregarded if we are to give a correct interpretation of
the will. The word sole does not necessarily exclude the
idea of substitute heirs; and taking these three clauses
together, such word means that the plaintiff is the sole
heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress
shall receive and enjoy the estate, is not incompatible
with a fideicommissary substitution (it certainly is
incompatible with the idea of simple substitution, where
the heiress instituted does not receive the inheritance).
In fact the enjoyment of the inheritance is in conformity
with the idea of fideicommissary substitution, by virtue of
which the heir instituted receives the inheritance and
enjoys it, although at the same time he preserves it in
order to pass it on the second heir. On this point the
illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and
143, 5th ed.), says:
Or, what amounts to the same thing, the fideicommissary
substitution, as held in the Resolution of June 25, 1895,
February 10, 1899, and July 19, 1909, requires three
things:
1. A first heir called primarily to the enjoyment of the
estate.
2. An obligation clearly imposed upon him to preserve
and transmit to a third person the whole or a part of the
estate.
3. A second heir.
To these requisites, the decision of November 18, 1918
adds another, namely that the fideicommissarius be
entitled to the estate from the time the testator dies,
since he is to inherit from the latter and not from the
fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted or
the fiduciary, as referred to in articles 783 of the Civil
Code, is entitled to enjoy the inheritance. And it might
here be observed, as a timely remark, that the
fideicommissum arising from a fideicommissary
substitution, which is of Roman origin, is not exactly
equivalent to, nor may it be confused with, the English
"trust."
It should also be noted that said clause IX vests in the
heiress only the right to enjoy but not the right to dispose
of the estate. It says, she may enjoy it, but does not say
she may dispose of it. This is an indication of the usufruct
inherent in fideicommissary substitution.
16
Clause X expressly provides for the substitution. It is true
that it does not say whether the death of the heiress herein
referred to is before or after that of the testatrix; but from
the whole context it appears that in making the provisions
contained in this clause X, the testatrix had in mind a
fideicommissary substitution, since she limits the
transmission of her estate to the children of the heiress by
this provision, "in such wise that my estate shall never pass
out of the hands of my heiress or her children in so far as it
is legally possible." Here it clearly appears that the testatrix
tried to avoid the possibility that the substitution might later
be legally declared null for transcending the limits fixed by
article 781 of the Civil Code which prescribed that
fideicommissary substitutions shall be valid "provided they
do not go beyond the second degree."
heir does not inherit from the heir first instituted, but
from the testator.
By virtue of this consequence, the inheritance in question
does not belong to the heiress instituted, the plaintiff
herein, as her absolute property, but to her children, from
the moment of the death of the testatrix, Ana Maria
Alcantara.
Therefore, said inheritance, of which the amount referred
to at the beginning, which is on deposit with the
association known as La Urbana in the plaintiff's name, is
a part, does not belong to her nor can it be subject to the
execution of the judgment against Joaquin Perez, who is
not one of the fideicommissary heirs.

Another clear and outstanding indication of The judgment appealed from is affirmed, with costs
fideicommissary substitution in clause X is the provision against the appellant, Mariano Garchitorena. So
that the whole estate shall pass unimpaired to the heiress's ordered.Johnson, Malcolm, Villamor, Ostrand, Johns and
children, that is to say the heiress is required to preserve Villa-Real, JJ., concur.
the whole estate, without diminution, in order to pass it on Street, J., reserves his vote.
in due time to the fideicommissary heirs. This provision
complies with another of the requisites of fideicommissary
substitution according to our quotation from Manresa
inserted above.

Lastly, clause XI more clearly indicates the idea of

fideicommissary substitution, when a provision is therein
made in the event the heiress should die after the testatrix.
That is, said clause anticipates the case where the
instituted heiress should die after the testatrix and after
receiving and enjoying the inheritance.

The foregoing leads us to the conclusion that all the

requisites of a fideicommissary substitution, according to
the quotation from Manresa above inserted, are present in
the case of substitution now under consideration, to wit:

1. At first heir primarily called to the enjoyment of the

estate. In this case the plaintiff was instituted an heiress,
called to the enjoyment of the estate, according to clause
IX of the will.

2. An obligation clearly imposed upon the heir to preserve

and transmit to a third person the whole or a part of the
estate. Such an obligation is imposed in clause X which
provides that the "whole estate shall pass unimpaired to
her (heiress's) surviving children;" thus, instead of leaving
the heiress at liberty to dispose of the estate by will, or of
leaving the law to take its course in case she dies intestate,
said clause not only disposes of the estate in favor of the
heiress instituted, but also provides for the disposition
thereof in case she should die after the testatrix.

3. A second heir. Such are the children of the heiress

instituted, who are referred to as such second heirs both in
clause X and in clause XI.

Finally, the requisite added by the decision of November 18,

1918, to wit, that the fideicommissarius or second heir
should be entitled to the estate from the time of the
testator's death, which in the instant case, is, rather than a
requisite, a necessary consequence derived from the nature
of the fideicommissary substitution, in which the second
17