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Republic of the Philippines of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for
SUPREME COURT
Manila
EN BANC
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Judgments; Probate courts; Error of law does not affect jurisdiction, of probate
court nor conclusive effect of its decision.—An error of law committed in admitting
a joint will to probate does not affect the jurisdiction of the probate court nor the
conclusive effect of its final decision.
Same; Same; Probate decree of joint will affects only share of deceased
spouse.—A final probate decree of a joint will of husband and wife affects only the
share of the deceased spouse and cannot include the disposition of said joint will,
in so far as the estate of the latter spouse is concerned, must be, on her death,
reexamined and adjudicated de novo.
Wills; Effects of validity of joint will as to share of wife who dies later than the
husband.—Where a husband and wife executed a joint will and upon the death of
the husband said will was admitted to probate by a final decree of the court
although erroneous, and the wife dies later, it is held that said first decree of
probate affects only the estate of the husband but cannot affect the estate of the
wife, considering that a joint will is a separate will of each testator; and a joint will
being prohibited by law, the estate of the wife should pass upon her death to her
intestate heirs and not to the testamentary heir, unless some other valid will is
shown to exist in favor of the latter or unless the testamentary heir is the only heir
of said wife.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals,
Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance
partition.
The factual background appears in the following portion of the decision of the
Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and
Gervasia Rebaca, executed a joint last will and testament in the local
dialect whereby they willed that "our two parcels of land acquired during
our marriage together with all improvements thereon shall be given to
Manuela Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela Rebaca
being married to Nicolas Potot", and that "while each of the testators is
yet living, he or she will continue to enjoy the fruits of the two lands
aforementioned", the said two parcels of land being covered by Tax No.
4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo,
municipality of Borbon, province of Cebu. Bernabe dela Serna died on
August 30, 1939, and the aforesaid will was submitted to probate by said
Gervasia and Manuela before the Court of First Instance of Cebu which,
after due publication as required by law and there being no opposition,
heard the evidence, and, by Order of October 31, 1939; in Special
Proceedings No. 499, "declara legalizado el documento Exhibit A como el
testamento y ultima voluntad del finado Bernabe de la Serna con derecho
por parte du su viuda superstite Gervasia Rebaca y otra testadora al
propio tiempo segun el Exhibit A de gozar de los frutos de los terranos
descritos en dicho documents; y habido consideracion de la cuantia de
dichos bienes, se decreta la distribucion sumaria de los mismos en favor
de la logataria universal Manuela Rebaca de Potot previa prestacion por
parte de la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del
finado Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499,
Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same
will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance
of Cebu, but for failure of the petitioner, Manuela R. Potot and her
attorney, Manuel Potot to appear, for the hearing of said petition, the
case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the
matter of the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament
null and void, for being executed contrary to the prohibition of joint wills in the
Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the
Philippines); but on appeal by the testamentary heir, the Court of Appeals

reversed, on the ground that the decree of probate in 1939 was issued by a court
of probate jurisdiction and conclusive on the due execution of the testament.
Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code).
prohibits the making of a will jointly by two or more persons either for
their reciprocal benefit or for the benefit of a third person. However, this
form of will has long been sanctioned by use, and the same has continued
to be used; and when, as in the present case, one such joint last will and
testament has been admitted to probate by final order of a Court of
competent jurisdiction, there seems to be no alternative except to give
effect to the provisions thereof that are not contrary to law, as was done
in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme
Court gave effect to the provisions of the joint will therein mentioned,
saying, "assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as to his last will and testament despite the fact
that even then the Civil Code already decreed the invalidity of joint wills, whether
in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669,
old Civil Code). The error thus committed by the probate court was an error of
law, that should have been corrected by appeal, but which did not affect the
jurisdiction of the probate court, nor the conclusive effect of its final decision,
however erroneous. A final judgment rendered on a petition for the probate of a
will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re
Estates of Johnson, 39 Phil. 156); and public policy and sound practice demand
that at the risk of occasional errors judgment of courts should become final at
some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs.
Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules
of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded
by the 1939 decree admitting his will to probate. The contention that being void
the will cannot be validated, overlooks that the ultimate decision on Whether an
act is valid or void rests with the courts, and here they have spoken with finality
when the will was probated in 1939. On this court, the dismissal of their action
for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share of
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the deceased husband, Bernabe de la Cerna. It could not include the disposition of
the share of the wife, Gervasia Rebaca, who was then still alive, and over whose
interest in the conjugal properties the probate court acquired no jurisdiction,
precisely because her estate could not then be in issue. Be it remembered that
prior to the new Civil Code, a will could not be probated during the testator's
lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a
joint will is considered a separate will of each testator. Thus regarded, the
holding of the court of First Instance of Cebu that the joint will is one prohibited
by law was correct as to the participation of the deceased Gervasia Rebaca in the
properties in question, for the reasons extensively discussed in our decision
in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon
vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death
to her heirs intestate, and not exclusively to the testamentary heir, unless some
other valid will in her favor is shown to exist, or unless she be the only heir
intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common
usage could not make them valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other subsequent laws, and no usage to
the contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art.
7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in
CA-G.R. No. 23763-R is affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala,
Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-29300 June 21, 1978
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO
FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal
heirs, namely his above-named widow and his children, ISIDRO GALLANOSA
and LEDY GALLANOSA, and grandchildren named IMELDA TECLA
GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the late
SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance
of Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G.
HITOSIS, VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN
R. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS,
VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS,
LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS,
minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by their
legal guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA
HITOSIS-BALBIDO, MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN
HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA
HITOSIS-BANARES FRANCHE, RESTITUTO HITOSIS-BANARES, DAMIAN
HITOSIS-BANARES, FIDEL HITOSIS-BANARES, SUSANA HITOSIS-BANARES
RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS
HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA,
represented by their legal guardian and father ERNESTO BANEGA,
FELICITAS HITOSIS-PENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL
HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-
GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA and
LEONA HITOSIS-GABITO GAMBA, respondents.
Settlement of Estate; Wills; Res Judicata; Prescription; An action instituted in
1967 for the annulment of a last will and testament duly probated way back in 1939
will not prosper.—What the plaintiffs seek is the “annulment” of a last will and
testament duly probated in 1939 by the lower court itself. The proceeding is
coupled with an action to recover the lands adjudicated to the defendants by the
same court in 1943 by virtue of the probated will, which action is a resuscitation of
the complaint of the same parties that the same court dismissed in 1952. It is
evident from the allegations of the complaint and from defendants’ motion to
Page 3 of 32
dismiss that plaintiffs’ 1967 action is barred by res judicata, a double-barrelled
defense, and by prescription, acquisitive and extinctive, or by what are known in
the jus civile and the jus gentium as usucapio, longi temporis possesio and
praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974 61 SCRA 284).
Same; Same; Pleadings and Practice. The Rules of Court does not sanction an
action for “annulment” of a will.—Our procedural law does not sanction an action
for the “annulment” of a will. In order that a will may take effect, it has to be
probated, legalized or allowed in the proper testamentary proceeding. The probate
of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule
76, Rules of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil.
249). The testamentary proceeding is a special proceeding for settlement of the
testators estate. A special proceeding is distinct and different from an ordinary
action (Secs. 1 and 2, Rule 2 and sec. 1, Rule 72. Rules of Court).
Same; Same; Res Judicata; Consequences of due probate of a will.—The 1939
decree of probate is conclusive as to the due execution or formal validity of the will
(Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of
art. 828, Civil Code). That means that the testator was of sound and disposing mind
at the time when he executed the will and was not acting under duress, menace,
fraud, or undue influence; that the will was signed by him in the presence of the
required number of witnesses, and that the will is genuine and is not a forgery.
Accordingly, these facts cannot again be questioned in a subsequent proceeding,
not even in a criminal action for the forgery of the will. (3 Moran’s Comments on
the Rules of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448). After
the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797,
September 22, 1966, 18 SCRA 47).
Same; Same; Same; Decree of adjudication in a testate proceeding is binding on
the whole world.—On the other hand, the 1943 decree of adjudication rendered by
the trial court in the testate proceeding for the settlement of the estate of
Florentino Hitosis, having been rendered in a proceeding in rem, is, under the
abovequoted section 49(a), binding upon the whole world (Manalo vs. Paredes, 47
Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerha vs. Potot, 120 Phil. 1361,
1364; McMaster vs. Henry Reissmann & Co., 68 Phil. 142).
Same; Same; Same; Judgment; Grounds for annulment of judgment after period
for filing petition for relief expires.—After the period for seeking relief from a final
order or judgment under Rule 38 of the Rules of Court has expired, a final judgment
or order can be set aside only on the grounds of (a) lack of jurisdiction or lack of
due process of law or (b) that the judgment was obtained by means of extrinsic or
collateral fraud. In the latter case, the period for annulling the judgment is four

years from the discovery of the fraud (2 Moran’s Comments on the Rules of Court,
1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159).
Same; Same; Contracts; Prescription; The Civil Law rule that an action for
declaration of inexistence of a contract does not prescribe cannot be applied to last
wills and testaments.—To hurdle over the obstacle of prescription, the trial court,
naively adopting the theory of plaintiffs counsel, held that the action for the
recovery of the lands had not prescribed because the rule in Article 1410 of the
Civil Code, that “the action or defense for the declaration of the inexistence of a
contract does not prescribe”, applies to wills. That ruling is a glaring error. Article
1410 cannot possibly apply to last wills and testaments.
Haile Frivaldo for petitioners.
Joaquin R Mitosis for private respondents.
AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek
to annul the orders of respondent Judge dated May 3 trial June 17, 1968, wherein
he reconsidered his order of January 10, 1968, dismissing, on the ground of
prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of
Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino
Hitosis, with an estimated value of P50,000, trial claims for damages exceeding
one million pesos. The undisputed facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he
was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless
widower, he as survived by his brother, Leon Hitosis. His other brothers, named
Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora,
were all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of
First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing
was duly published. In that will, Florentino bequeathed his one-half share in the
conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease
him, as was the case, his one-half share would be assigned to the spouses Pedro
Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her
first marriage, grew up under the care of Florentino; he had treated Pedro as his
foster child, and Pedro has rendered services to Florentino and Tecla. Florentino
likewise bequeathed his separate properties consisting of three parcels of abaca
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land and parcel of riceland to his protege (sasacuyang ataman), Adolfo Fortajada,
a minor.
3. Opposition to the probate of the will was registered by the testator's legal heirs,
namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing,
wherein the oppositors did not present any evidence in support of their
opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted
the will to probate and appointed Gallanosa as executor. Judge Rivera specifically
found that the testator executed his last will "gozando de buena salud y facultades
mentales y no obrando en virtud de amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo
Fortajada, submitted a project of partition covering sixty-one parcels of land
located in various parts of Sorsogon, large cattle trial several pieces of personal
property which were distributed in accordance with Florentino's will. The heirs
assumed the obligations of the estate amounting to P7,129.27 in the portion of
P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The
project of partition was approved by Judge Doroteo Amador in his order of March
13, 1943, thus confirming the heirs' possession of their respective shares. The
testator's legal heirs did not appeal from the decree of probate trial from the
order of partition trial distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased
brothers trial sisters instituted an action in the Court of First Instance of Sorsogon
against Pedro Gallanosa for the recovery of the said sixty-one parcels of land.
They alleged that they, by themselves or through their predecessors-in-interest,
had been in continuous possession of those lands en concepto de dueño trial that
Gallanosa entered those lands in 1951 trial asserted ownership over the lands.
They prayed that they be declared the owners of the lands trial that they be
restored to the possession thereof. They also claimed damages (Civil Case No.
696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial
on the ground of bar by the prior judgment in the probate proceeding. Judge
Anatolio C. Mañalac dismiss the complaint on the ground of res judicata in his
order of August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-interest had
intervened in the testate proceedings in Civil Case No. 3171 of this Court for-
the purpose of contesting the probate of the will of (the) late Florentino
Hitosis; trial had their opposition prospered trial the will denied of probate,
the proceedings would have been converted into one of intestacy (Art. 960
Civil Code) and the settlement of the estate of the said deceased would have
been made in accordance with the provisions of law governing legal or

intestate succession ... , in which case the said plaintiffs, as the nearest of kin
or legal heirs of said Florentino Mitosis, would have succeeded to the
ownership and possession of the 61 parcels of land in question forming part
of his estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to them, when it their
opposition trial ordered the probate of his will. From this decision (Annex K)
legalizing the said will, the oppositors did not file any appeal within the
period fixed by law, despite the fact that they were duly notified thereof, so
that the said decision had become final trial it now constitutes a bar to any
action that the plaintiffs may institute for the purpose of a redetermination of
their rights to inherit the properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case special ) No. 3171,
in which the herein plaintiffs or their predecessors-in-interest had
intervened as parties oppositors, constitutes a final judicial determination of
the issue that the said plaintiffs, as ordinary heirs, have no legal rights to
succeed to any of the properties of the late Florentino Hitosis; consequently,
their present claim to the ownership trial possession of the 61 parcels of land
in question is without any legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which should have set
the matter at rest. But the same plaintiffs or oppositors to the probate of the will,
trial their heirs, with a persistence befitting a more meritorious case, filed on
September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 trial
twenty-eight years after the probate of the will another action in the same court
against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the
will of Florentino Hitosis trial and for the recovery of the same sixty-one parcels
of land. They prayed for the appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through
fraud trial deceit, caused the execution trial simulation of the document
purporting to be the last will trial testament of Florentino Hitosis. While in their
1952 complaint the game plaintiffs alleged that they were in possession of the
lands in question, in their 1967 complaint they admitted that since 1939, or from
the death of Florentino Hitosis, the defendants (now the petitioners) have been in
possession of the disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil
Case No. 555, Gubat Branch, which was transferred to Branch I in Sorsogon town
where Special Proceeding No. 3171 trial Civil Case No. 696 were decided trial
which was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the
petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge. granted it trial set aside the order of
Page 5 of 32
dismissal. He denied defendants' motion for the reconsideration of his order
setting aside that dismissal order.
The petitioners or the defendants below contend in this certiorari case that the
lower court has no jurisdiction to set aside the 1939 decree of probate trial the
1952 order of dismissal in Civil Case No. 696 trial that it acted with grave abuse of
discretion in not dismissing private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private respondents
have a cause of action the "annulment" of the will of Florentino Hitosis trial for
the recovery of the sixty-one parcels of land adjudicated under that will to the
petitioners.
We hold that the lower court committed a grave abuse of discretion in
reconsideration its order of dismissal trial in ignoring the 1939 testamentary case
trial the 1952 Civil Case No. 696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an
ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is
baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly
probated in 1939 by the lower court itself. The proceeding is coupled with an
action to recover the lands adjudicated to the defendants by the same court in
1943 by virtue of the probated will, which action is a resuscitation of The
complaint of the same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants' motion to
dismiss that plaintiffs' 1967 action is barred by res judicata, a double-barrelled
defense, trial by prescription, acquisitive trial extinctive, or by what are known in
the jus civile trial the jus gentium as usucapio, longi temporis
possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61
SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In
order that a will may take effect, it has to be probated, legalized or allowed in the
proper testamentary proceeding. The probate of the will is mandatory (Art. 838,
Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs.
Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the
testator's estate. A special proceeding is distinct trial different from an ordinary
action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court).

We say that the defense of res judicata, as a ground for the dismissal of plaintiffs'
1967 complaint, is a two-pronged defense because (1) the 1939 trial 1943
decrees of probate trial distribution in Special Proceeding No. 3171 trial (2) the
1952 order of dismissal in Civil Case No. 696 of the lower court constitute bars by
former judgment, Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments. — The effect of a judgment or final order
rendered by a court or judge of the Philippines, having jurisdiction to
pronounce the judgment or order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect to the
probate of a will or the administration of the estate of a deceased person, or
in respect to the personal, political, or legal condition or status of a particular
person or his relationship to another, the judgment or order is conclusive
upon the title to the thing the will or administration, or the condition, status
or relationship of the person; however, the probate of a will or granting of
letters of administration shall only be prima facie evidence of the death of the
testator or intestate;
(b) In other cases the judgment or order is, with respect to the matter
directly adjudged or as to any other matter that could have been raised in
relation thereto, conclusive between the parties trial their successors in
interest by title subsequent to the commencement of the action or special
proceeding, litigating of the same thing trial under the same title trial in the
same capacity;
(c) In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former judgment
which appears upon its face to have been so adjudged, or which was actually
trial necessarily included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or formal
validity of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of
Court; Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the time when
he executed the will and was not acting under duress, menace, fraud, or undue
influence; that the will was signed by him in the presence of the required number
of witnesses, and that the will is genuine trial is not a forgery. Accordingly, these
facts cannot again be questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will. (3 Moran's Comments on the Rules of
Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448).
Page 6 of 32
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797,
September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not
entertained after the decree of probate had become final. That case is
summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His will was
admitted to probate without objection. No appeal was taken from said order.
It was admitted that due trial legal notice had been given to all parties.
Fifteen months after the date of said order, a motion was presented in the
lower court to have said will declared null and void, for the reason that fraud
had been practised upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time given parties who
are displeased with the order admitting to probate a will, for an appeal is the
time given for appeals in ordinary actions; but without deciding whether or
not an order admitting a will to probate will be opened for fraud, after the
time allowed for an appeal has expired, when no appeal is taken from an
order probating a will, the heirs can not, in subsequent litigation in the same
proceedings, raise questions relating to its due execution. The probate of a
will is conclusive as to its due execution trial as to the testamentary capacity
of The testator. (See Austria vs. Heirs of Ventenilla. 99 Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in
the testate proceeding for the settlement of the estate of Florentino Hitosis,
having been rendered in a proceeding in rem, is under the abovequoted section
49(a), binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In
re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361, 1364;
McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res
judicata with respect to private respondents' complaint, The 1952 order of
dismissal rendered by Judge Mañalac in Civil Case No. 696, a judgment in
personam was an adjudication on the merits (Sec. 4, Rule 30, old Rules of Court).
It constitutes a bar by former judgment under the aforequoted section 49(b)
(Anticamara vs. Ong, L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the
annulment of the testamentary proceeding trial the proceeding in Civil Case No.
696. Obviously, they realized that the final adjudications in those cases have the
 Page 7 of 32

binding force of res judicata and that there is no ground, nor is it timely, to ask for Concepcion, Jr., J., is on leave.
the nullification of the final orders trial judgments in those two cases.

It is a fundamental concept in the organization of every jural system, a principle

of public policy, that, at the risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis sit
litum. "The very object for which the courts were constituted was to put an end to
controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Peñalosa vs.
Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).

After the period for seeking relief from a final order or judgment under Rule 38 of
the Rules of Court has expired, a final judgment or order can be set aside only on
the grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the
judgment was obtained by means of extrinsic or collateral fraud. In the latter
case, the period for annulling the judgment is four years from the discovery of the
fraud (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246;
Mauricio vs. Villanueva, 106 Phil. 1159).

To hurdle over the obstacle of prescription, the trial court, naively adopting the
theory of plaintiffs' counsel, held that the action for the recovery of the lands had
not prescribed because the rule in article 1410 of the Civil Code, that "the action
or defense for the declaration of the inexistence of a contract does not prescribe",
applies to wills.

That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial
testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle
vs. Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the ruling
in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to
void contracts, a ruling elevated to the category of a codal provision in article
1410. The Dingle case was decided by the Court of Appeals. Even the trial court
did not take pains to verify the misrepresentation of plaintiffs' counsel that
the Dingle case was decided by this Court. An elementary knowledge of civil law
could have alerted the trial court to the egregious error of plaintiffs' counsel in
arguing that article 1410 applies to wills.

WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed
trial set aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs
against the private respondents.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.


Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG,
CARMELITA JUGO, respondents.
Succession; Wills; Jurisdiction; The fact that the probate court declared a devise
made in a will null and void will be sustained where no useful purpose will be served
by requiring the filing of a separate civil action and restricting the court only to the
issue of extrinsic validity of the will.—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 f or 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 v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with
Sumilang v. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan,
L-19996, April 30, 1965, 13 SCRA 693).
Same; Same; Same; Same.—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 01 the provisions of the will in question. (Section 2, Rule
1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists
a justiciable controversy crying f or solution.
Same; Same; A devise given by a married man estranged from his wife for 22
years prior to his death, to a woman with whom he has been living for said period of
time is void.—Moreover, the prohibition in Article 739 of the Civil Code is against
the making of a donation between persons who are living in adultery or
Page 8 of 32
concubinage. It is the donation which becomes void. The giver cannot give even
assuming that the recipient may receive. The very wordings of the Will invalidate
the legacy because the testator admitted he was disposing the properties to a
person with whom he had been living in concubinage.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the
respondent Court of Appeals (now intermediate Appellate Court) dated June 3,
1982, as amended by the resolution dated August 10, 1982, declaring as null and
void the devise in favor of the petitioner and the resolution dated December 28,
1982 denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and
Testament duly signed by him at the end of the Will on page three and on the left
margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna
C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by the testator and his
three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J.
Nepomuceno as his sole and only executor of his estate. It is clearly stated in the
Will that the testator was legally married to a certain Rufina Gomez by whom he
had two legitimate children, Oscar and Carmelita, but since 1952, he had been
estranged from his lawfully wedded wife and had been living with petitioner as
husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the
petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the
Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife
Rufina Gomez and his children Oscar and Carmelita his entire estate and the free
portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned legal
wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both
surnamed Jugo, whom I declare and admit to be legally and properly entitled
to inherit from me; that while I have been estranged from my above-named
wife for so many years, I cannot deny that I was legally married to her or that
we have been separated up to the present for reasons and justifications
known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and

affection, for all the things which she has done for me, now and in the past;
that while Sofia J. Nepomuceno has with my full knowledge and consent, did
comport and represent myself as her own husband, in truth and in fact, as
well as in the eyes of the law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will
and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal,
Branch XXXIV, Caloocan City and asked for the issuance to her of letters
testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children
filed an opposition alleging inter alia that the execution of the Will was procured
by undue and improper influence on the part of the petitioner; that at the time of
the execution of the Will, the testator was already very sick and that petitioner
having admitted her living in concubinage with the testator, she is wanting in
integrity and thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground
that as the testator admitted in his Will to cohabiting with the petitioner from
December 1952 until his death on July 16, 1974, the Will's admission to probate
will be an Idle exercise because on the face of the Will, the invalidity of its
intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the will. The respondent court declared
the Will to be valid except that the devise in favor of the petitioner is null and void
pursuant to Article 739 in relation with Article 1028 of the Civil Code of the
Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question
declared valid except the devise in favor of the appellant which is declared
null and void. The properties so devised are instead passed on in intestacy to
the appellant in equal shares, without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last
sentence of the dispositive portion of the decision be changed to "appellees" so as
to read: "The properties so devised are instead passed on intestacy to
the appellees in equal shares, without pronouncement as to costs." The motion
was granted by the respondent court on August 10, 1982.
Page 9 of 32
On August 23, 1982, the petitioner filed a motion for reconsideration. This was
denied by the respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court
acted in excess of its jurisdiction when after declaring the last Will and Testament
of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic
validity of the testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor
cannot be passed upon and decided in the probate proceedings but in some other
proceedings because the only purpose of the probate of a Will is to establish
conclusively as against everyone that a Will was executed with the formalities
required by law and that the testator has the mental capacity to execute the same.
The petitioner further contends that even if the provisions of paragraph 1 of
Article 739 of the Civil Code of the Philippines were applicable, the declaration of
its nullity could only be made by the proper court in a separate action brought by
the legal wife for the specific purpose of obtaining a declaration of the nullity of
the testamentary provision in the Will in favor of the person with whom the
testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and
Testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and the petitioner and the fact that petitioner
herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix
Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et
al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission
of the testator of the illicit relationship between him and the petitioner put in
issue the legality of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to
be validly drawn, it went on to pass upon the intrinsic validity of the Will and
declared the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is
limited to an examination and resolution of the extrinsic validity of the Will. The
rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all
questions concerning capacity of the testator and the proper execution and

witnessing of his last Will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Fernandez v. Dimagiba, 21
SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry
is limited to the extrinsic validity thereof. The testators testamentary capacity
and the compliance with the formal requisites or solemnities prescribed by
law are the only questions presented for the resolution of the court. Any
inquiry into the intrinsic validity or efficacy of the provisions of the will or the
legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition for
probate. Probate is one thing; the validity of the testamentary provisions is
another. The first decides the execution of the document and the
testamentary capacity of the testator; the second relates to descent and
distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts that a
will was executed with the formalities required by law and that the testator
was in a condition to make a will, is the only purpose of the proceedings
under the new code for the probate of a will. (Sec. 625). The judgment in such
proceedings determines and can determine nothing more. In them the court
has no power to pass upon the validity of any provisions made in the will. It
can not decide, for example, that a certain legacy is void and another one
valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted
the petitioner as universal heir and completely preterited her surviving forced
heirs. A will of this nature, no matter how valid it may appear extrinsically, would
be null and void. Separate or latter proceedings to determine the intrinsic validity
of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Page 10 of 32
Invoking "practical considerations", we stated:
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 v. Nuguid, 64 O.G. 1527, 17
SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26,
1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the
Will. Both parties are agreed that the Will of Martin Jugo was executed with all the
formalities required by law and that the testator had the mental capacity to
execute his Will. The petitioner states that she completely agrees with the
respondent court when in resolving the question of whether or not the probate
court correctly denied the probate of Martin Jugo's last Will and Testament, it
ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of
Petition.)
On the other hand the respondents pray for the affirmance of the Court of
Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid,
(supra):
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 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.
(Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522).
After all, there exists a justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified
provision to the proper court in a separate action for that purpose simply
because, in the probate of a will, the court does not ordinarily look into the
intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage
at the time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be
brought by the spouse of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years
before the testator's death on July 16, 1974, Martin Jugo stated that respondent
Rufina Gomez was his legal wife from whom he had been estranged "for so many
years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his
legitimate children. In Article IV, he stated that he had been living as man and
wife with the petitioner since 1952. Testator Jugo declared that the petitioner
was entitled to his love and affection. He stated that Nepomuceno represented
Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law,
I could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage.
Page 11 of 32
There is no question from the records about the fact of a prior existing marriage
when Martin Jugo executed his Will. There is also no dispute that the petitioner
and Mr. Jugo lived together in an ostensible marital relationship for 22 years until
his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man
was then 51 years old while the woman was 48. Nepomuceno now contends that
she acted in good faith for 22 years in the belief that she was legally married to
the testator.
The records do not sustain a finding of innocence or good faith. As argued by the
private respondents:
First. The last will and testament itself expressly admits indubitably on its
face the meretricious relationship between the testator and petitioner, the
devisee.
Second. Petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the legacy
given in the will to petitioner by the deceased testator at the start of the
proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had
lived with as man and wife, as already married, was an important and specific
issue brought by the parties before the trial court, and passed upon by the
Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was
petitioner who opted to present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp.
56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the
testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at length
on the meretricious relationship of his brother and petitioner. (TSN of August
18,1975).

Clearly, the good faith of petitioner was by option of the parties made a
decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the
question.
When the court a quo held that the testator Martin Jugo and petitioner 'were
deemed guilty of adultery or concubinage', it was a finding that petitioner
was not the innocent woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private
respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased testator in
a town in Tarlac where neither she nor the testator ever resided. If there was
nothing to hide from, why the concealment' ? Of course, it maybe argued that
the marriage of the deceased with private respondent Rufina Gomez was
likewise done in secrecy. But it should be remembered that Rufina Gomez
was already in the family way at that time and it would seem that the parents
of Martin Jugo were not in favor of the marriage so much so that an action in
court was brought concerning the marriage. (Testimony of Sebastian Jugo,
TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when they
were still both single. That would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married
the testator only on December 5, 1952. There was a space of about 30 years
in between. During those 30 years, could it be believed that she did not even
wonder why Martin Jugo did not marry her nor contact her anymore after
November, 1923 - facts that should impel her to ask her groom before she
married him in secrecy, especially so when she was already about 50 years
old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself
conclusive demonstration that she new that the man she had openly lived for
22 years as man and wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of respondent Rufina
Gomez, is it possible that she would not have asked Martin Jugo whether or
not they were his illegitimate or legitimate children and by whom? That is un-
Filipino.
Page 12 of 32
FIFTH: Having often gone to Pasig to the residence of the parents of the
deceased testator, is it possible that she would not have known that the
mother of private respondent Oscar Jugo and Carmelita Jugo was respondent
Rufina Gomez, considering that the houses of the parents of Martin Jugo
(where he had lived for many years) and that of respondent Rufina Gomez
were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are,
to say the least, inherently improbable, for they are against the experience in
common life and the ordinary instincts and promptings of human nature that
a woman would not bother at all to ask the man she was going to marry
whether or not he was already married to another, knowing that her groom
had children. It would be a story that would strain human credulity to the
limit if petitioner did not know that Martin Jugo was already a married man
in view of the irrefutable fact that it was precisely his marriage to respondent
Rufina Gomez that led petitioner to break off with the deceased during their
younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of
a donation between persons who are living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate the legacy because
the testator admitted he was disposing the properties to a person with whom he
had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the
Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo,
JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17818 January 25, 1967
TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr.,
all surnamed Reyes y Barretto, plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Succession; Partition, wherein an instituted heir. who was later found not to be
the decedent’s child, was included, is valid.—Article 1081 of the Old Civil Code, which
provides that “a partition made with the inclusion of a person believed to be an
heir, but who is not, shall be void,” does not apply to a case where the partition was
made between two persons instituted as heirs in a will but it was found out later
that one of them was not the testator’s child. The reason is obvious. The heir, who
was not the testator’s child, was admittedly instituted as an heir in the will, and
was not merely a person who was erroneously believed to be an heir (See Reyes
vs. Datu, 94 Phil. 446; Reyes vs. Barretto, 98 Phil. 996). Article 1081 does not speak
of children or descendants but of heirs (without distinction between forced,
voluntary or intestate ones), and the fact that the person in question was not the
testator’s daughter does not preclude her from being one of the heirs expressly
named in the testament, for the testator was at liberty to assign the f ree portion of
his estate to whomsover he chose. The fact that the one-half share assigned to the
said person encroached upon the legitime of the other instituted heir, who was a
real daughter of the testator, did not preclude that person from becoming a
testamentary heir of the decedent.
Same; Diminution of legitime of forced heir does not constitute preterition.—
Where the testator allotted in his will to his legitimate daughter a share less than
her legitime, such circumstance would not invalidate the institution of a stranger
as an heir, since there was no preterition or total omission of a forced heir. The
ruling in Neri vs. Akutin, 72 Phil. 322 is not applicable to the case.
Same; Partition not amounting to a compromise on civil status.—Where a
partition was made between two persons instituted as heirs in the will, and one of
them was found out later not to be the testator’s daughter, while the other was
really his daughter, it cannot be said that the partition was a void compromise on
the civil status of the person who was not the testator’s daughter. At the time of the
partition, the civil status of that person was not being questioned. There can be no
Page 13 of 32
compromise on a matter that was not in issue, While the law outlaws a compromise
over civil status, it does not forbid a settlement by the parties regarding the share
that should correspond to the claimant to the hereditary estate.
Same; When partition decreed by the court is res judicata.—A project of
partition is merely a proposal for the distribution of the hereditary estate which
the court may accept or reject. It is the court alone that makes the distribution of
the estate and determines the persons entitled thereto (Camia de Reyes vs. Reyes
de Ilano, 63 Phil. 629; Sec. 750, Act 190; Rule 90, Old Rules of Court; Rule 91,
Revised Rules of Court). It is that final judicial decree of distribution that vests title
in the distributees. If the decree was erroneous, it should have been corrected by
opportune appeal; but once it had become final, its binding effect is like that of any
other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.
Where the court has validly issued a decree of distribution and the same has
become final, the validity or invalidity of the project of partition becomes
irrelevant.
Same; When consummated partition cannot be set aside.—A partition
agreement that was ratified by the court’s decree of distribution and was actually
consummated by delivery of the shares to the distributees cannot be set aside after
a long lapse of time. The rule in Saminiada vs. Mata, 92 Phil. 426 does not apply to
that case.
Same; Distribution according to the will should be respected; The minority of
the distributee does not affect court’s jurisdiction.—A distribution in the decedent’s
will, made according to his will, should be respected. The fact that one of the
distributees was a minor at the time the court issued the decree of distribution
does not imply that the court had no jurisdiction to enter the decree of distribution.
The proceeding for the settlement of a decedent’s estate is a proceeding in
rem (Ramos vs. Ortuzar, 89 Phil. 741). It is binding on the distributee who was
represented by her mother as guardian.
Same; Relief on the ground of fraud.—Where in a partition between two
instituted heirs, one of them did not know that she was not really the child of the
testator, it cannot be said that she def rauded the other heir who was the testator’s
daughter. At any rate, relief on the ground of fraud must be obtained within four
years from its discovery. Where the person allegedly defrauded was only sixteen
years old in 1939, when the fraud was allegedly perpetrated, and she became of
age in 1944, and became aware of the fraud in 1946, her action in 1956 to set aside
the partition was clearly barred.
Guardianship; Guardian cannot waive rights of the ward.—An abdicative
waiver of rights by a guardian is an act of disposition. It cannot bind his ward, being

null and void as to the ward unless duly authorized by the proper court (Ledesma
Hermanos vs. Castro, 55 Phil. 136, 142).
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil
Case No. 1084, dismissing the complaint of appellant Tirso T. Reyes and ordering
the same to deliver to the defendant-appellee, Lucia Milagros Barretto-Datu, the
properties receivea by his deceasea wife under the terms of the will of the late
Bibiano Barretto, consisting of lots in Manila, Rizal, Pampanga and Bulacan,
valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the
barrio of San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of
Title No. T-13734 of the Land Records of this Province, being the share of
plaintiff's wards as minor heirs of the deceased Salud Barretto, widow of
plaintiff Tirso Reyes, guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their
lifetime they acquired a vast estate, consisting of real properties in Manila,
Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos. 41423,
22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and
12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his
share of these properties in a will Salud Barretto, mother of plaintiff's wards, and
Lucia Milagros Barretto and a small portion as legacies to his two sisters Rosa
Barretto and Felisa Barretto and his nephew anä nieces® The usufruct oæ the
fishponä situateä iî barrio Saî Roque¬ Hagonoy, Bulacan, above-mentioned,
however, was reserved for his widow, Maria Gerardo® Iî the meantime¬ Maria
Gerardo was appointeä administratrix. By virtue thereof, she prepared a project
of partition, which was signed by her in her own behalf and as guardian of the
minor Milagros Barretto. Said project of partition was approved by the Court of
First Instance of Manila on November 22, 1939. The distribution of the estate and
the delivery of the shares of the heirs followed forthwith. As a consequence, Salud
Barretto took immediate possession of her share and secured the cancellation of
the original certificates of title and the issuance of new titles in her own name.
Page 14 of 32
Everything went well since then. Nobody was heard to complain of any
irregularity in the distribution of the said estate until the widow, Maria Gerardo
died on March 5, 1948. Upon her death, it was discovered that she had executed
two wills, in the first of which, she instituted Salud and Milagros, both surnamed
Barretto, as her heirs; and, in the second, she revoked the same and left all her
properties in favor of Milagros Barretto alone. Thus, the later will was allowed
and the first rejected. In rejecting the first will presented by Tirso Reyes, as
guardian of the children of Salud Barretto, the lower court held that Salud was not
the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto.
This ruling was appealed to the Supreme Court, which affirmed the same. 1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a
legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of the
estate of the deceased Bibiano Barretto, which was given in usufruct to his widow
Maria Gerardo. Hence, this action for the recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of
ownership, not only of the fishpond under litigation, but of all the other
properties willed and delivered to Salud Barretto, for being a spurious heir, and
not entitled to any share in the estate of Bibiano Barretto, thereby directly
attacking the validity, not only of the project of partition, but of the decision of the
court based thereon as well.
The defendant contends that the Project of Partition from which Salud acquired
the fishpond in question is void ab initio and Salud Barretto did not acquire any
valid title thereto, and that the court did not acquire any jurisdiction of the person
of the defendant, who was then a minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court
declared the project of partition submitted in the proceedings for the settlement
of the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First
Instance of Manila) to be null and void ab initio (not merely voidable) because the
distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was not a
daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity of the
project of partition was decreed on the basis of Article 1081 of the Civil Code of
1889 (then in force) providing as follows: .
A partition in which a person was believed to be an heir, without being
so, has been included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that since
Bibiano Barretto was free to dispose of one-third (1/3) of his estate under the old
Civil Code, his will was valid in favor of Salud Barretto (nee Lim Boco) to the

extent, at least, of such free part. And it concluded that, as defendant Milagros was
the only true heir of Bibiano Barretto, she was entitled to recover from Salud, and
from the latter's children and successors, all the Properties received by her from
Bibiano's estate, in view of the provisions of Article 1456 of the new Civil Code of
the Philippines establishing that property acquired by fraud or mistake is held by
its acquirer in implied trust for the real owner. Hence, as stated at the beginning
of this opinion, the Court a quo not only dismissed the plaintiffs' complaint but
ordered them to return the properties received under the project of partition
previously mentioned as prayed for in defendant Milagros Barretto's
counterclaim. However, it denied defendant's prayer for damages. Hence, this
appeal interposed by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has
been misapplied to the present case by the court below. The reason is obvious:
Salud Barretto admittedly had been instituted heir in the late Bibiano Barretto's
last will and testament together with defendant Milagros; hence, the partition had
between them could not be one such had with a party who was believed to be an
heir without really being one, and was not null and void under said article. The
legal precept (Article 1081) does not speak of children, or descendants, but
of heirs (without distinction between forced, voluntary or intestate ones), and the
fact that Salud happened not to be a daughter of the testator does not preclude
her being one of the heirs expressly named in his testament; for Bibiano Barretto
was at liberty to assign the free portion of his estate to whomsoever he chose.
While the share (½) assigned to Salud impinged on the legitime of Milagros, Salud
did not for that reason cease to be a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller
than her legitime invalidate the institution of Salud as heir, since there was here
no preterition, or total ommission of a forced heir. For this reason, Neri vs. Akutin,
72 Phil. 322, invoked by appellee, is not at all applicable, that case involving an
instance of preterition or omission of children of the testator's former marriage.
Appellee contends that the partition in question was void as a compromise on the
civil status of Salud in violation of Article 1814 of the old Civil Code. This view is
erroneous, since a compromise presupposes the settlement of a controversy
through mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil
Code of the Philippines, Art. 2028); and the condition of Salud as daughter of the
testator Bibiano Barretto, while untrue, was at no time disputed during the
settlement of the estate of the testator. There can be no compromise over issues
not in dispute. And while a compromise over civil status is prohibited, the law
nowhere forbids a settlement by the parties over the share that should
correspond to a claimant to the estate.
Page 15 of 32
At any rate, independently of a project of partition which, as its own name
implies, is merely a proposal for distribution of the estate, that the court may
accept or reject, it is the court alone that makes the distribution of the estate and
determines the persons entitled thereto and the parts to which each is entitled
(Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of 1940;
Rule 91, Revised Rules of Court), and it is that judicial decree of distribution, once
final, that vests title in the distributees. If the decree was erroneous or not in
conformity with law or the testament, the same should have been corrected by
opportune appeal; but once it had become final, its binding effect is like that of
any other judgment in rem, unless properly set aside for lack of jurisdiction or
fraud.
It is thus apparent that where a court has validly issued a decree of distribution of
the estate, and the same has become final, the validity or invalidity of the project
of partition becomes irrelevant.
It is, however, argued for the appellee that since the court's distribution of the
estate of the late Bibiano Barretto was predicated on the project of partition
executed by Salud Barretto and the widow, Maria Gerardo (who signed for herself
and as guardian of the minor Milagros Barretto), and since no evidence was taken
of the filiation of the heirs, nor were any findings of fact or law made, the decree
of distribution can have no greater validity than that of the basic partition, and
must stand or fall with it, being in the nature of a judgment by consent, based on a
compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the
proposition. That case is authority for the proposition that a judgment by
compromise may be set aside on the ground of mistake or fraud, upon petition
filed in due time, where petition for "relief was filed before the compromise
agreement a proceeding, was consummated" (cas. cit. at p. 436). In the case
before us, however, the agreement of partition was not only ratified by the court's
decree of distribution, but actually consummated, so much so that the titles in the
name of the deceased were cancelled, and new certificates issued in favor of the
heirs, long before the decree was attacked. Hence, Saminiada vs. Mata does not
apply.
Moreover, the defendant-appellee's argument would be plausible if it were shown
that the sole basis for the decree of distribution was the project of partition. But,
in fact, even without it, the distribution could stand, since it was in conformity
with the probated will of Bibiano Barretto, against the provisions whereof no
objection had been made. In fact it was the court's duty to do so. Act 190, section
640, in force in 1939, provided: .
SEC. 640. Estate, How Administered. — When a will is thus allowed, the
court shall grant letters testamentary, or letters of administration with
the will annexed, and such letters testamentary or of administration,

shall extend to all the estate of the testator in the Philippine Islands. Such
estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such
will may operate upon it; and the residue, if any, shall be disposed of as is
provided by law in cases of estates in these Islands belonging to persons
who are inhabitants of another state or country. (Emphasis supplied)
That defendant Milagros Barretto was a minor at the time the probate court
distributed the estate of her father in 1939 does not imply that the said court was
without jurisdiction to enter the decree of distribution. Passing upon a like issue,
this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally
intervene, still they would be concluded by the result of the proceedings,
not only as to their civil status but as the distribution of the estate as
well. As this Court has held in Manolo vs. Paredes, 47 Phil. 938, "The
proceeding for probate is one in rem (40 Cyc., 1265) and the court
acquires jurisdiction over all persons interested, through the publication
of the notice prescribed by section 630 C.P.C.; and any order that any be
entered therein is binding against all of them." (See also in re Estate of
Johnson, 39 Phil. 156.) "A final order of distribution of the estate of a
deceased person vests the title to the land of the estate in the
distributees". (Santos vs. Roman Catholic Bishop of Nueva Caceres, 45
Phil. 895.) There is no reason why, by analogy, these salutary doctrines
should not apply to intestate proceedings.
The only instance that we can think of in which a party interested in a
probate proceeding may have a final liquidation set aside is when he is
left out by reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence. Even then, the
better practice to secure relief is reopening of the same case by proper
motion within the reglementary period, instead of an independent action
the effect of which, if successful, would be, as in the instant case, for
another court or judge to throw out a decision or order already final and
executed and reshuffle properties long ago distributed and disposed of.
It is well to observe, at this juncture, as this Court expressly declared in Reyes vs.
Barretto Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was a minor when she signed
the partition, and that Maria Gerardo was not her judicially appointed
guardian. The claim is not true. Maria Gerardo signed as guardian of the
minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the
project of partion that the guardianship proceedings of the minor Lucia
Page 16 of 32
Milagros Barretto are pending in the court, does not mean that the
guardian had not yet been appointed; it meant that the guardianship
proceedings had not yet been terminated, and as a guardianship
proceedings begin with the appointment of a guardian, Maria Gerardo
must have been already appointed when she signed the project of
partition. There is, therefore, no irregularity or defect or error in the
project of partition, apparent on the record of the testate proceedings,
which shows that Maria Gerardo had no power or authority to sign the
project of partition as guardian of the minor Lucia Milagros Barretto, and,
consequently, no ground for the contention that the order approving the
project of partition is absolutely null and void and may be attacked
collaterally in these proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only made
a party by publication but actually appeared and participated in the proceedings
through her guardian: she, therefore, can not escape the jurisdiction of the Manila
Court of First Instance which settled her father's estate.
Defendant-appellee further pleads that as her mother and guardian (Maria
Gerardo) could not have ignored that the distributee Salud was not her child, the
act of said widow in agreeing to the oft-cited partition and distribution was a
fraud on appellees rights and entitles her to relief. In the first place, there is no
evidence that when the estate of Bibiano Barretto was judicially settled and
distributed appellants' predecessor, Salud Lim Boco Barretto to, knew that she
was not Bibiano's child: so that if fraud was committed, it was the widow, Maria
Gerardo, who was solely responsible, and neither Salud nor her minor children,
appellants herein, can be held liable therefor. In the second placegranting that
there was such fraud, relief therefrom can only be obtained within 4 years from
its discovery, and the record shows that this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto was only 16 years old
(Exhibit 24), she became of age five years later, in 1944. On that year, her cause of
action accrued to contest on the ground of fraud the court decree distributing her
father's estate and the four-year period of limitation started to run, to expire in
1948 (Section 43, Act. 190). In fact, conceding that Milagros only became aware of
the true facts in 1946 (Appellee's Brief, p. 27), her action still became extinct in
1950. Clearly, therefore, the action was already barred when in August 31, 1956
she filed her counterclaim in this case contesting the decree of distribution of
Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced
evidence that appellant Tirso Reyes had induced her to delay filing action by
verbally promising to reconvey the properties received by his deceased wife,
Salud. There is no reliable evidence of the alleged promise, which rests
 Page 17 of 32

exclusively on the oral assertions of Milagros herself and her counsel. In fact, the
trial court made no mention of such promise in the decision under appeal. Even
more: granting arguendo that the promise was made, the same can not bind the
wards, the minor children of Salud, who are the real parties in interest. An
abdicative waiver of rights by a guardian, being an act of disposition, and not of
administration, can not bind his wards, being null and void as to them unless duly
authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros
Barretto in the proceedings for the settlement of the estate of Bibiano Barretto
duly approved by the Court of First Instance of Manila in 1939, in its Civil Case
No. 49629, is not void for being contrary to either Article 1081 or 1814 of the,
Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition
and decree of distribution is barred by the statute of limitations; and (3) that her
claim that plaintiff-appellant guardian is a possessor in bad faith and should
account for the fruits received from the properties inherited by Salud Barretto
(nee Lim Boco) is legally untenable. It follows that the plaintiffs' action for
partition of the fishpond described in the complaint should have been given due
course.

Wherefore, the decision of the Court of First Instance of Bulacan now under
appeal is reversed and set aside in so far as it orders plaintiff-appellant to
reconvey to appellee Milagros Barretto Datu the properties enumeracted in said
decision, and the same is affirmed in so far as it denies any right of said appellee
to accounting. Let the records be returned to the court of origin, with instructions
to proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709),
covered by TCT No. T-13734 of the Office of the Register of Deeds of Bulacan, and
for the accounting of the fruits thereof, as prayed for in the complaint No costs.

Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and
Castro, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
Wills; Succession; Rights of compulsory heir; Preterition defined.—Preterition
is 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 testator’s estate.
Whether the testator gave a legacy to a person, whom he characterized in the
testamentary provision as not related to him, but later this person was judicially
declared to be his acknowledged natural child, the case is not a case of preterition
but a case of completion of legitime. The institution in the will would not be
annulled. There would be no intestacy.
Same; Right of compulsory heir, to whom testator left property less than his
legitime to completion of legitime even if he is not referred to in will as heir.—In order
that the right of a forced heir may be limited to the completion of his legitime
(instead of the annulment of the institution of heirs) it is not 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. As successional rights are vested as of the moment of death, the
forced heir is entitled to the fruits and increments of his legitime from the testator’s
death.
Appeals; Substitution of heirs is not an issue where substitute heirs are not
parties to the case.—The reference to and discussion of the rights of the substitute
heirs in appellant’s brief appears to be merely for the purpose of refuting the
theory advanced by appellees and not f or the purpose of having the rights of said
heirs defined insofar as, under the terms of the will, they may affect the legitime of
the oppositor-appellant. This point of course was not and could hardly have been
squarely raised as an issue inasmuch as the substitute heirs are not parties in this
case.
Page 18 of 32
Same; No substitution on legitime.—The legitime must descend to the forced
heir in fee simple, since the testator cannot impose on it any burden, encumbrance,
condition or substitution (Arts, 864. 872 and 904. New Civil Code).
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
Page 19 of 32
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
Page 20 of 32
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.
Page 21 of 32
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.
RESOLUTION
July 30, 1967
MAKALINTAL, J.:
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making
reference to an alleged oversight and asking for the corresponding correction, in
Page 22 of 32
the last paragraph before the dispositive part of our decision, which reads as
follows:
One point deserves to be here mentioned, although no reference to it has been
made in the brief for oppositor-appellant. It is the institution of substituted heirs to
the estate bequeathed to Lucy Duncan in the event she should die without living
issue. This substitution results in effect from the fact that under paragraph 12 of
the will she is entitled only to the income from said estate, unless prior to her
decease she should have living issue, in which event she would inherit in full
ownership; otherwise the property will go to the other relatives of the testator
named in the will. Without deciding this point, since it is not one of the issues
raised before us, we might call attention to the limitations imposed by law upon
this kind of substitution, particularly that which says that it can never burden the
legitime (Art. 864, Civil Code), which means that the legitime must descend to the
heir concerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis
ours).
Oppositor-appellant points out that the matter of substitution of heirs was taken
up and discussed in her brief particularly in pages 28 and 32 thereof. This is
indeed quite true, but the reference to and discussion of the rights of the
substitute heirs (called American heirs in the brief) appears to be merely for the
purpose of refuting the theory advanced by appellees and not for the purpose of
having the rights of said heirs defined in so far as, under the terms of the will,
they may affect the legitime of oppositor-appellant. This point of course was not
and could hardly have been squarely raised as an issue inasmuch as the substitute
heirs are not parties in this case. We have nevertheless called attention "to the
limitations imposed by law upon this kind of substitution," because in the brief
for oppositor-appellant, at page 45, she makes the conclusion "that the Last Will
and Testament of Edward E. Christensen are valid under Philippine Law and must
be given full force and effect;" and to give them full force and effect would
precisely affect the legitime of oppositor-appellant.
Wherefore, the last paragraph before the dispositive part of our decision quoted
above is amended by eliminating the following phrase in the first sentence:
"although no reference to it has been made in the brief for oppositor-appellant."
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ.,
concur.
Regala and Castro, JJ., took no part.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division),
VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.
Civil Law; Succession; Preterition, meaning of; Article 854 of the Civil Code not
applicable to the surviving spouse; Adoption makes the adopted the legal heir of the
adopter.—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
[1982]. Insofar as the widow is concerned, Article 854 of the Civil Code may not
apply as she does not ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory
heir, there is no preterition even if she is omitted from the inheritance, for she is
not in the direct line. (Art. 854, Civil Code) However, the same thing cannot be said
of the other respondent Virginia A. Fernandez, whose legal adoption by the testator
has not been questioned by petitioner (Memorandum for the Petitioner, pp. 8-9).
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code,
adoption gives to the adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she was 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.
Same; Same; Same; Preterition annuls the institution of an heir and creates
intestate succession but legacies and devises are valid and respected insofar as they
are not inofficious.—Preterition annuls the institution of an heir and annulment
throws open to intestate succession the entire inheritance including “la portion
libre (que) no hubiese dispuesto en virtual de legado, mejora o donation” (Manresa,
as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA
[1982]). The only provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected, except in so far
as the legitimes are concerned.
Page 23 of 32
Same; Same; Same; Same; Institution of petitioner and his brothers and sisters
to the entire inheritance totally abrogates the will.—The universal institution of
petitioner together with his brothers and sisters to the entire inheritance of the
testator results in totally abrogating the will because the nullification of such
institution of universal heirs—without any other testamentary disposition in the
will—amounts to a declaration that nothing at all was written. Carefully worded
and in clear terms, Article 854 of the Civil Code offers no leeway for inferential
interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has been left by universal
title to petitioner and his brothers and sisters. The effect of annulling the institution
of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil.
185 [1943]) except that proper legacies and devises must, as already stated above,
be respected.
Same; Same; Probate of a will; Petitioner has no legal standing to petition for
the probate of the will of the deceased, hence Special Proceeding No. 591-A-CEB must
be dismissed.—In order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the property
to be affected by it either as executor or as a claimant of the estate and an interested
party is one who would be benefited by the estate such as an heir or one who has
a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA
1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition of any gift of an individual
item of personal or real property he is called upon to receive (Article 782, Civil
Code). At the outset, he appears to have an interest in the will as an heir, defined
under Article 782 of the Civil Code as a person called to the succession either by
the provision of a will or by operation of law. However, intestacy having resulted
from the preterition of respondent adopted child and the universal institution of
heirs, petitioner is in effect not an heir of the testator. He has no legal standing to
petition for the probate of the will left by the deceased and Special Proceedings No.
591-A-CEB must be dismissed.
Same; Same; Same; Rule that probate Court’s authority is limited only to the
extrinsic validity of the will, not inflexible and absolute; Court may pass upon the
intrinsic validity of the will under exceptional circumstances.—Special Proceedings
No. 591-CEB is for the probate of a will. As stated by respondent Court, the general
rule is that the probate court’s authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testator’s testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally come only after the Court has declared that the will has
been duly authenticated. Said court at this stage of the proceedings is not called
upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid
v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA 522 [1984]); and

Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The rule, however, is not
inflexible and absolute. Under exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and pass upon certain
provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid
the oppositors to the probate moved to dismiss on the ground of absolute
preterition. The probate court acting on the motion held that the will in question
was a complete nullity and dismissed the petition without costs. On appeal the
Supreme Court upheld the decision of the probate court, induced by practical
considerations.
Same; Same; Same; Same; Trial Court could have denied outright the probate
of the will or have passed upon its intrinsic validity where on its face it appears to be
intrinsically void.—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. Leonidas, supra; Nuguid v. Nuguid, supra). The remedies of certiorari
and prohibition were properly availed of by private respondents.
Certiorari; Remedy of Certiorari cannot be a substitute for appeal, exception.—
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of judicial authority (People v.
Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573
[1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v.
Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari
and prohibition are not available where the petitioner has the remedy of appeal or
some other plain, speedy and adequate remedy in the course of law (D.D.
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]).
Same; Same; Certiorari may be entertained where appeal will not afford a
speedy and adequate relief.—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
Page 24 of 32
in the broader interests of justice, a petition for certiorari may be entertained,
particularly where appeal would not afford speedy and adequate relief.
PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of
Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108)
ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents'
(petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads 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. 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
Page 25 of 32
probated and it cannot pass upon the intrinsic validity thereof
before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be
admitted to probate. The preterition mentioned in Article 854 of
the New Civil Code refers to preterition of "compulsory heirs in
the direct line," and does not apply to private respondents who
are not compulsory heirs in the direct line; their omission shall
not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will
be the law;
(E) There may be nothing in Article 854 of the New Civil Code,
that suggests that mere institution of a universal heir in the will
would give the heir so instituted a share in the inheritance but
there is a definite distinct intention of the testator in the case at
bar, explicitly expressed in his will. This is what matters and
should be in violable.
(F) As an instituted heir, petitioner has the legal interest and
standing to file the petition in Sp. Proc. No. 591 ACEB for probate
of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is
therefore unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been
pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devisees and legacies
shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator,
the institution shall he effectual, without prejudice to the right of
representation.

Preterition consists in the omission in the testator's will of the forced heirs or
anyone of them either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA
478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may
not apply as she does not ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory
heir, there is no preterition even if she is omitted from the inheritance, for she is
not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said
of the other respondent Virginia A. Fernandez, whose legal adoption by the
testator has not been questioned by petitioner (.Memorandum for the Petitioner,
pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare
Code, adoption gives to the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the adopted person a legal heir
of the adopter. It cannot be denied that she has totally omitted and preterited in
the will of the testator and that both adopted child and the widow were deprived
of at least their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que) no
hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in
Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The
only provisions which do not result in intestacy are the legacies and devises made
in the will for they should stand valid and respected, except insofar as the
legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to
the entire inheritance of the testator results in totally abrogating the will because
the nullification of such institution of universal heirs-without any other
testamentary disposition in the will-amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 of the Civil Code
offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No
legacies nor devises having been provided in the will the whole property of the
deceased has been left by universal title to petitioner and his brothers and sisters.
The effect of annulling the "Institution of heirs will be, necessarily, the opening of
a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies
and devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to
intervene in a probate proceeding he must have an interest iii the estate, or in the
will, or in the property to be affected by it either as executor or as a claimant of
the estate and an interested party is one who would be benefited by the estate
such as an heir or one who has a claim against the estate like a creditor (Sumilang
Page 26 of 32
v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor,
neither a devisee or a legatee there being no mention in the testamentary
disposition of any gift of an individual item of personal or real property he is
called upon to receive (Article 782, Civil Code). At the outset, he appears to have
an interest in the will as an heir, defined under Article 782 of the Civil Code as a
person called to the succession either by the provision of a will or by operation of
law. However, intestacy having resulted from the preterition of respondent
adopted child and the universal institution of heirs, petitioner is in effect not an
heir of the testator. He has no legal standing to petition for the probate of the will
left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of j judicial authority (People v.
Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573
[1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v.
Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari
and prohibition are not available where the petitioner has the remedy of appeal
or some other plain, speedy and adequate remedy in the course of law (DD
Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are,
however, proper remedies to correct a grave abuse of discretion of the trial court
in not dismissing a case where the dismissal is founded on valid grounds (Vda. de
Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof, the testator's
testamentary capacity and the compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will normally comes only after the
Court has declared that the will has been duly authenticated. Said court at this
stage of the proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966];
Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478
[1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of
Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will (Nepomuceno v.
Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate
moved to dismiss on the ground of absolute preteriton The probate court acting
on the motion held that the will in question was a complete nullity and dismissed
the petition without costs. On appeal the Supreme Court upheld the decision of
the probate court, induced by practical considerations. The Court said:
 Page 27 of 32

We pause to reflect. If the case were to be remanded for probate
of the will, nothing will be gained. On the contrary, this litigation
will be protracted. And for aught that appears in the record, in
the event of probate or if the court rejects the will, probability
exists that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will. Result:
waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might
as well meet head-on the issue of the validity of the provisions of
the will in question. After all there exists a justiciable
controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition
by the surviving spouse was grounded on petitioner's lack of legal capacity to
institute the proceedings which was fully substantiated by the evidence during
the hearing held in connection with said motion. The Court upheld the probate
court's order of dismissal.
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.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the SO ORDERED.
petition deals with the validity of the provisions of the will. Respondent Judge
allowed the probate of the will. The Court held that as on its face the will Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco,
appeared to have preterited the petitioner the respondent judge should have Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
denied its probate outright. Where circumstances demand that intrinsic validity
of testamentary provisions be passed upon even before the extrinsic validity of
the will is resolved, the probate court should meet the issue. (Nepomuceno v.
Court of Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in
Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following
grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is
merely a universal heir; and (3) the widow and the adopted daughter have been
preterited (Rollo, p. 158). It was denied by the trial court in an order dated
January 21, 1985 for the reason that "the grounds for the motion to dismiss are
matters properly to be resolved after a hearing on the issues in the course of the
trial on the merits of the case (Rollo, p. 32). A subsequent motion for
reconsideration was denied by the trial court on February 15, 1985 (Rollo, p.
109).

For private respondents to have tolerated the probate of the will and allowed the
case to progress when on its face the will appears to be intrinsically void as
petitioner and his brothers and sisters were instituted as universal heirs coupled
with the obvious fact that one of the private respondents had been preterited
would have been an exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could have denied its probate

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Wills; Succession; Probate of will; Court’s area of inquiry is limited to extrinsic
validity of will; When Court may rule on intrinsic validity.—In a proceeding 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 prescribed by law. The intrinsic validity of the will normally comes
only after the court has declared that the will has been duly authenticated.
However, where practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the Court should meet that issue.
Same; Preterition; Omission of forced heirs in the will.—Where the deceased
left no descendants, legitimate or illegitimate, but she left forced heirs in the direct
ascending line—her parents, and her holographic will does not explicitly disinherit
them but simply omits their names altogether, the case is one of preterition of the
parents, not a case of ineffective disinheritance.
Same; Preterition distinguished from 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.” (Neri vs. Akutin, 72 Phil., 325).
Disinheritance, in turn, “is a testamentary disposition depriving any compulsory
heir of his share in the legitime for a cause authorized by law.” (Justice J.B.L. Reyes
and R.C. Puno, “An Outline of Philippine Civil Law”, 1966 ed., Vol. III, p. 8, citing
cases.) Disinheritance is always “voluntary”; preterition, upon the other hand, is
presumed to be “involuntary” (Sánchez Román, Estudios de Derecho Civil, 2nd
edition, Volumen 2.o, p. 1131).
Same; Effects flowing from preterition and disinheritance.—The effects
flowing from preterition are totally different from those of disinheritance.
Preterition under Article 854 of the New Civil Code “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
Page 28 of 32
disinheritance under Article 918 of the same Code, such disinheritance shall also
“annul the institution of heirs”, but only “insofar as it may prejudice the person
disinherited”, which last phrase was omitted in the case of preterition (III
Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived.
Same; When institution of heirs is void.—Where the onesentence will
institutes the petitioner as the sole, universal heir and preterits the parents of the
testatrix, and it contains no specif ic legacies or bequests, such universal institution
of petitioner, by itself, is void. And intestate succession ensues.
Same; When legacies and devises merit consideration.—Legacies and devises
merit consideration only when they are so expressly given as such in a will. Nothing
in Article 854 of the New Civil Code 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.
Same; Institution of heirs cannot be considered a legacy.—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 of
the old Civil Code, regarding total or partial nullity of the institution, would be
absolutely meaningless and will never have any application at all. And the
remaining provisions contained in said articles concerning the reduction of
inofficious legacies or betterments would be a surplusage because they would be
absorbed by Article 817 of the same Code.
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.
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
Page 29 of 32
will, probability exists that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on the issue of the validity
of the provisions of the will in question.3 After all, there exists a justiciable
controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the
conclusion below that the will is a complete nullity. This exacts from us a study of
the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having
amassed a certain amount of property, do hereby give, devise, and bequeath all of
the property which I may have when I die to my beloved sister Remedios Nuguid,
age 34, residing with me at 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 betterments4 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:
Page 30 of 32
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 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". 15 From 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
Page 31 of 32
The will here does not explicitly disinherit the testatrix's parents, the forced heirs.
It simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally
different from those of disinheritance. Preterition under Article 854 of the Civil
Code, we repeat, "shall annul the institution of heir". This annulment is in toto,
unless in the will there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also "annul the institution of heirs", put only
"insofar as it may prejudice the person disinherited", which last phrase was
omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity
is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived. Manresa's expressive language, in commenting on the rights of
the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are
entitled to receive their legitimes, but that the institution of heir "is not
invalidated," although the inheritance of the heir so instituted is reduced to the
extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of
the children by the second marriage should be treated
as legado and mejora and, accordingly, it must not be entirely annulled but
merely reduced. This theory, if adopted, will result in a complete abrogation
of Articles 814 and 851 of the Civil Code. If every case of institution of heirs
may be made to fall into the concept of legacies and betterments reducing the
bequest accordingly, then the provisions of Articles 814 and 851 regarding
total or partial nullity of the institution, would. be absolutely meaningless and
will never have any application at all. And the remaining provisions
contained in said article concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by
Article 817. Thus, instead of construing, we would be destroying integral
provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure
to distinguish institution of heirs from legacies and betterments, and a
general from a special provision. With reference to article 814, which is the
only provision material to the disposition of this case, it must be observed
 Page 32 of 32

that the institution of heirs is therein dealt with as a thing separate and
distinct from legacies or betterments. And they are separate and distinct not
only because they are distinctly and separately treated in said article but
because they are in themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But again an institution
of heirs cannot be taken as a legacy. 25

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

Upon the view we take of this case, the order of November 8, 1963 under review
is hereby affirmed. No costs allowed. So ordered.

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