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G.R. No.

L-41971 November 29, 1983

ZONIA ANA T. SOLANO, petitioner,


vs.
THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S. GARCIA, respondents.

Benjamin H. Aquino for petitioner.

Alfredo Kallos for respondents.

MELENCIO HERRERA, J.: ñé+.£ªwp h!1

A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming the judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil Case No. 3956,
an action for Recognition.

On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In his Answer,
SOLANO denied paternity. On February 3, 1970, during the pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as the only
surviving heir mentioned in his Last Will and Testament probated on March 10, 1969, or prior to his death, in Special Proceedings No. 842 of the same Court. ZONIA entered her formal
appearance as a "substitute defendant" on March 4, 1970 claiming additionally that she was the sole heir of her father, SOLANO, and asking that she be allowed to assume her duties as
executrix of the probated Will with the least interference from the GARCIAS who were "mere pretenders to be illegitimate children of SOLANO".

On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental Cause of Action" impugning the recognition of ZONIA as an acknowledged natural child with the
prayer that she be declared instead, like them, as an adulterous child of the DECEDENT. ZONIA did not file any responsive pleading and the case proceeded to trial. The GARCIAS further
moved for the impleading of the SOLANO estate in addition to ZONIA, which was opposed by the latter, but which the Trial Court granted in its Order dated April 15, 1970. 1

In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the correct
status of ZONIA, and 3) the hereditary share of each of them in view of the probated Will. 2

On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered judgment the dispositive portion of which decrees: têñ.£îhqwâ£

WHEREFORE, judgment is hereby rendered declaring the plaintiffs Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia Ana Tuagnon as the
illegitimate children of the late Dr. Meliton Solano under the class of ADULTEROUS CHILDREN, with all the rights granted them by law. The institution of Sonia
Ana Solano as sole and universal heir of the said deceased in the will is hereby declared null and void and the three (3) children shall share equally the estate or
one- third (1/3) each, without prejudice to the legacy given to Trinidad Tuagnon and the right of any creditors of the estate. No pronouncement as to costs.

Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CA-G.R. No. 49018).

ZONIA seeks a reversal of that affirmance in this petition, which was given due course.

At the outset, we should state that we are bound by the findings of fact of both the Trial Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact,
illegitimate children of the DECEDENT. The oral testimony and the documentary evidence of record inevitably point to that conclusion, as may be gleaned from the following background facts:
SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928. The union was short-
lived as she left him in 1929. In the early part of 1930, SOLANO started having amorous relations with Juana Garcia, out of which affair was born Bienvenido Garcia on March 24, 1931
(Exhibits "A" & "3"); and on November 3, 1935, Emeteria Garcia was born (Exhibits "B " & "2"). Their birth certificates and baptismal certificates mention only the mother's name without the
father's name. The facts establish, however, that SOLANO during his lifetime recognized the GARCIAS as his children by acts of support and provisions for their education.

In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her Birth
Certificate, her status was listed as "illegitimate"; her mother as Trinidad Tuagnon; her father as "P.N.C. " (Exhibit "V"), or "padre no conocido".

During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and Trinidad Tuagnon
executed an "Escritura de Reconocimiento de Unit Hija Natural" (Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the right to use the name ZONIA Ana Solano y
Tuagnon. The document was registered with the Local Civil Registrar on the same date.

On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit "11"), instituting ZONIA as his universal heir to all his personal and real properties in Camalig, Tabaco
and Malinao, all in the province of Albay, except for five parcels of land in Bantayan, Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct Upon SOLANO's petition (Exhibit "10"),
the Will was duly probated on March 10, 1969 in Special Proceedings No. 842 of the Court of First Instance of Albay, Branch II, in a Decision also rendered by Judge Ezequiel S. Grageda
(Exhibit "12").

As above stated, these facts are not in question.

Petitioner maintains, however, that: têñ.£îhqwâ£

The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in declaring substitute defendant Zonia Ana Solano, now
petitioner, an illegitimate child of the late Dr. Meliton Solano in an action where private respondents, as plaintiffs in the Court below, sought recognition as natural
children of Dr. Meliton Solano.

II
The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in ordering the division of the estate of Dr. Meliton Solano
between the petitioner and private respondents, when said estate is under the jurisdiction and control of the probate Court in Special Proceedings No. 842.

III

The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of jurisdiction in declaring nun and void the institution of heir in the last will
and testament of Dr. Meliton Solano, which was duly probated in special proceedings No. 842 of the Court of First Instance of Albay, and in concluding that total
intestacy resulted there from. 3

Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the same
action despite the pendency of Special Proceedings No. 842; and 3) to declare null and void the institution of heir in the Last Win and Testament of SOLANO, which was duly probated in the
same Special Proceedings No. 842, and concluding that total intestacy resulted.

It is true that the action below was basically one for recognition. However, upon notice of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving heir ... as of as
of now" 4 In her "Appearance of Substitute Defendant Zonia Ana T. Solano ... Sole and Universal Heir", ZONIA specifically prayed that she be 6 allowed to assume her duties as executrix and
administratrix of the probated will and testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, which is already final and executory, with least interference from the
plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be illegitimate children". In other words, ZONIA did not only rely upon SOLANO's Answer already of record but
asserted new rights in her capacity as sole and universal heir, "executrix and administratrix, "and challenged the right of the GARCIAS to recognition. Thus, she was not defending the case as a
mere representative of the deceased but asserted rights and defenses in her own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA ... and Supplemental
Cause of Action ... "vigorously denying that ZONIA was SOLANO's sole and universal heir; that ZONIA could not legally be considered as SOLANO's acknowledged natural child because of a
legal impediment; that the admission to probate of SOLANO's Will was merely conclusive as to its due execution; that the supposed recognition under a notarial instrument of ZONIA as an
acknowledged natural child was fraudulent and a product of misrepresentation; that ZONIA's recognition in the Will as an acknowledged natural child is subject to nullification and that at most
ZONIA is, like them, an adulterous child of SOLANO with Trinidad Tuagnon.

During the trial, the GARCIAS presented evidence to prove their allegations not only in their main complaint but also in their "Reply to Appearance and Supplemental Cause of Action". ZONIA
presented no objection to the presentation by the GARCIAS of their oral and documentary evidence and even cross-examined their witnesses. ZONIA, for her part, presented her own
testimonial and documentary evidence, denied the relationship of the GARCIAS' to SOLANO and presented the notarial recognition in her favor as an acknowledged natural child by SOLANO
and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised by the parties in their own pleadings and pursuant to their respective evidence during the trial, the litigation was converted into a contest
between the GARCIAS and ZONIA precisely as to their correct status as heirs and their respective rights as such. No error was committed by either the Trial Court or the Appellate Court,
therefore, in resolving the issue of ZONIA's status.

ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and distributing
the shares of the parties in SOLANO's estate when said estate was under the jurisdiction and control of the Probate Court in Special Proceedings No. 842.

Normally, this would be the general rule. However, a peculiar situation is thrust upon us here. It should be recalled that SOLANO himself instituted the petition for probate of the Will during his
lifetime. That proceeding was not one to settle the estate of a deceased person that would be deemed terminated only upon the final distribution of the residue of the hereditary estate. With the
Will allowed to probate, the case would have terminated except that it appears that the parties, after SOLANO's death, continued to file pleadings therein. Secondly, upon motion of the
GARCIAS, and over the objection of ZONIA, the Trial Court ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect, therefore, the two cases were consolidated.
The records further disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same Branch of the Court and before the same presiding
Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to its due execution. 5 A probate decree is not concerned with the intrinsic validity or legality of the provisions of the
Will. 6

Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that ZONIA's
acknowledgment as a "natural child" in a notarial document executed by SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth in 1941,
SOLANO was still married to Lilly Gorand, his divorce having been obtained only in 1943, and, therefore, did not have the legal capacity to contract marriage at the time of ZONIA's
conception, 7 that being compulsory heirs, the GARCIAS were, in fact, pretended from SOLANO's Last' Will and Testament; and that as a result of said preterition, the institution of ZONIA as
sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code. têñ.£îhqw â£

The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. ... 8

As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy,
recognized in Article 563 of the Civil Code, 9and should be respected in so far as it is not inofficious. 10

So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding that
the entire Will is void and intestacy ensues, the pretention of the GARCIAS should annul the institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired. The Will,
therefore, is valid subject to that limitation. 11 It is a plain that the intention of the testator was to favor ZONIA with certain portions of his property, which, under the law, he had a right to dispose
of by Will, so that the disposition in her favor should be upheld as to the one-half (1/2) portion of the property that the testator could freely dispose of. 12 Since the legitime of illegitimate children
consists of one half (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA each have a right to participation therein in the proportion of one-third (1/3) each. ZONIA's hereditary share will,
therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate.

As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated in the Will is valid and should be respected.

The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et al., 15 which held that where the institution of a universal heir is null and void due to pretention, the Will is
a complete nullity and intestate succession ensues, is not applicable herein because in the Nuguid case, only a one-sentence Will was involved with no other provision except the institution of
the sole and universal heir; there was no specification of individual property; there were no specific legacies or bequests. It was upon that factual setting that this Court declared: têñ.£îhqw â£

The disputed order, we observe, declares the will in question 'a complete nullity. Article 854 of the Civil Code in turn merely nullifies 'the institution of heir'.
Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The entire
will is null." (at p. 459)

In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the Civil Code, supra, applies merely annulling the "institution of heir".

Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court was never questioned before either Court. ZONIA herself had gone, without objection, to trial on the
issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held estopped to
repudiate that jurisdiction to which she had voluntarily submitted, after she had received an unfavorable judgment, The leading case of Tijam vs. Sibonghanoy, 16 on this point, declared: têñ.£îhqw â£

A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after failing to obtain such relief, repudiate or question the
same jurisdiction. The question whether the court has jurisdiction either of the subject matter of the action or of the parties is not because the judgment or order of
the court is valid and conclusive as an adjudication but for the reason that such practice cannot be tolerated obviously for reasons of public policy. After voluntarily
submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court.
WHEREFORE, the judgment under review is hereby modified in that the hereditary share in the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 + (1/3 of
1/2) or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of Trinidad
Tuagnon shall be respected. The judgment is affirmed in all other respects. No costs.

SO ORDERED. 1äwphï1.ñët

G.R. No. L-24365 June 30, 1966

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased.


ADOLFO C. AZNAR, executor and appellee,
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee.

J. Salonga and L. M. Abellera for oppositor and appellee.


Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.

MAKALINTAL, J.:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of
Davao in its decision of February 28, 1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the
deceased. The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484).

In another incident relative to the partition of the deceased's estate, the trial court approved the project submitted by the executor in accordance with the provisions of the will, which said court
found to be valid under the law of California. Helen Garcia appealed from the order of approval, and this Court, on January 31, 1963, reversed the same on the ground that the validity of the
provisions of the will should be governed by Philippine law, and returned the case to the lower court with instructions that the partition be made as provided by said law (G.R. No. L-16749).

On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate
were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had
expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that since
Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving
only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in
equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire
estate.

The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to the issue in this case:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago,
who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.

xxx xxx xxx

7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she
was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao,
Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen
with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as
well as any interest which may have accrued thereon, is exhausted.

xxx xxx xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No.
665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her
lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in that event, the life interest
herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and
residue of my property with the same force and effect as if I had originally so given, devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY
CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and bequeath all the rest, remainder and residue of my property one-half (1/2) to my well-
beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased
brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California,
U.S.A., share and share alike, the share of any of the three above named who may predecease me, to go in equal parts to the descendants of the deceased; and, provided
further, that should my sister Mrs. Carol Louise C. Borton die before my own decease, then, and in that event, the share of my estate devised to her herein I give, devise and
bequeath to her children, Elizabeth Borton de Treviño, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard Borton, of Bakersfield,
California, U.S.A., or to the heirs of any of them who may die before my own decease, share and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant
to Article 854 of the Civil Code, which provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by
any title less than the legitime belonging to him may demand that the same be fully satisfied." Appellant also suggests that considering the provisions of the will whereby the testator expressly
denied his relationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of
Article 918, which reads:
ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code,
shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devices and legacies and other testamentary dispositions shall be valid to such
extent as will not impair the legitimate.

Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were
intestate.

Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Commenting on Article 815, Manresa explains:

Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra
plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima, pero que influeye
poderosamente en el animo del legislador para decidirle a adoptar una solucion bien diferente de la señalada para el caso de pretericion.

El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un calculo equivocado, ha repartido en favor de extraños o en favor de otros
legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede
pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al complemento de la porcion que forzosamente la corresponde.

... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de
bienes menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la ley. Cuando en el testamento se
deja algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6
Manresa, 7th Ed., 1951, p. 437.)

On the difference between preterition of a compulsory heir and the right to ask for completion of his legitime, Sanchez Roman says:

La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se presume involuntaria la omision en que consiste en cuanto olvida o no atiende el
testador en su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente de el y no mencionandole en ninguna
de sus disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin
dejarle mas o menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no seria caso de pretericion, sino de complemento de aquella. El
primer supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de complemento de legitima por el 815 y
solo original la accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.)

Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting
him expressly, nor assigning to him some part of the properties. Manresa continues:

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. 1äwphï1.ñët

xxx xxx xxx

B. Que la omision sea completa — Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el
testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria
discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de
privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son, como veremos completamente distintos (6 Manresa, p. 428.)

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es
menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las
consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815. (6 Manresa p. 418.)

Again Sanchez Roman:

QUE LA OMISSION SEA TOTAL. — Aunque el articulo 814 no consigna de modo expreso esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion
testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de
un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria
pedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la pretericion, que anula la institucion, sino simplemente los del suplemento necesario para cubrir
su legitima. (Sanchez Roman — Tomo VI, Vol. 2.0 p. 1133.)

The question may be posed: In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that
what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In other words, should he be recognized or referred to in
the will as heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir — indeed her status as such is denied — but is
given a legacy of P3,600.00.

While the classical view, pursuant to the Roman law, gave an affirmative answer to the question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0
— p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given above, comments
as follows:

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional
modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le dejaba por titulo de tal el completo de su legitima, la accion para invalidar la
institucion hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como donotario, por otro
titulo que no fuera el de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era instituido heredero en parte o cantidad inferior a lo que le
correspondiera por legitima, era cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las otras instituciones de heredero o demas
disposiciones contenidas en el testamento.

El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le inspira cual es la de que se complete la legitima del heredero forzoso, a quien por
cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de pedir el complemento de la misma sin necesidad de que se anulen las
disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la
jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del
testador, segun lo revela el texto del articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es por titulo de legado o donacion mortis causa en el testamento y,
no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 — p. 937.)
Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to
one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held
that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.)

The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to
acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to
assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her
and to Lucy Duncan, who alone was expressly recognized by him.

The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory of preterition. That decision is not here applicable, because it referred to a will
where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them
or, at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.

The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate
descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a
corresponding portion of all the fruits or increments thereof subsequently accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such
dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime.

One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy
Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate,
unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will.
Without deciding this, point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says
that it can never burden the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned in fee simple.

Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded with
instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding
to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which shall not include those imposed in the will of the decedent, in accordance
with Article 908 of the Civil Code. Costs against appellees in this instance.

Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur.

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.

AQUINO, J.:

Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian,
converting the testate proceeding into an intestate proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents of the appeal are as
follows:

Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six
legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother's notarial will dated September 5, 1970 which is written in English. In that will
Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited from her
father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of
her properties (Par. IV).

Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my
properties") should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in
the will her husband's one half share of the conjugal assets. *

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence,
preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate
certain properties which he had received from the testatrix.

Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed
that he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he
manifested that out of respect for his wife's will he "waived and renounced' his hereditary rights in her estate in favor of their six children. In that same instrument he confirmed the agreement,
which he and his wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will.

Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the
opposition and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court
as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the
conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros,
opposed that motion. The lower court denied it in its order of October 15, 1973.

In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a
motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion
Montaña claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.

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.

The lower court, acting on the motions of Atty. Montaña, assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys.
Montaña and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the petition for the probate, converted the testate proceeding into an intestate proceeding, ordered
the issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The
notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance.

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked f or the reconsideration of the lower court's order of February 28, 1974 on the
ground that Atty. Montaña had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaña
and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaña's services and informed him that his withdrawal of the
petition for the probate of the will was without their consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" to them.

Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the
basis of its own independent assessment of its provisions and not because of Atty. Montaña's arguments.

The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369;
Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693). 1äwphï1.ñët

But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that
in its order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the
conjugal estate.

The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not
have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the valid parts will
be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" (95
C.J.S. 873).

The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law because, although she was a coowner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded.

The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband's lif etime but should be kept intact and that the legitimes should be paid in
cash is contrary to article 1080 of the Civil Code which reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the
legitime of the compulsory heirs.

A parent who, in the interest of his or her family, to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in
this article, by ordering that the legitime of the other children to whom the property is not assigned be paid in cash. (1056a)

The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not
assign the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain
undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband's lifetime would at most be effective only for twenty years from the date of
her death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil Code).

Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a
donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code.
A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected.

Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the
legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the
surviving spouse.

It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary rights, his one-half conjugal share became a part of his
deceased wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the
compulsory heirs.

Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the testator had it at the time of making the will, should it expressly appear by
the will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose
of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the
conjugal estate, such partition has become valid, assuming that the will may be probated.

The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her parents. Her will was intrinsically void because it preterited her
compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies, shall be valid insofar as they are not inofficious." Since the
preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil Code).
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 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.