Page 1 of 24

Contents
1. NEPOMUCENO vs. COURT OF APPEALS.. 2
2. AUSTRIA vs. REYES .................................... 6
3. AZNAR vs. DUNCAN ..................................... 9
4. REYES vs. BARRETTO-DATU ................... 13
5. ACAIN vs. IAC ............................................. 17
6. NUGUID vs. NUGUID .................................. 21


Page 2 of 24
1. NEPOMUCENO vs. COURT OF APPEALS
G.R. No. L-62952 October 9, 1985

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.
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.
Page 3 of 24
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.
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
Page 4 of 24
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.
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
Page 5 of 24
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.
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.

Page 6 of 24
2. AUSTRIA vs. REYES
G.R. No. L-23079 February 27, 1970
Salonga, Ordoez, Yap, Sicat and Associates for
petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for
respondent Perfecto Cruz.
Villareal, Almacen, Navarra and Amores for other
respondents.

CASTRO, J .:
On July 7, 1956 Basilia Austria vda. de Cruz filed with
the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, ante
mortem, of her last will and testament. The probate
was opposed by the present petitioners Ruben
Austria, Consuelo Austria-Benta and Lauro Austria
Mozo, and still others who, like the petitioner, are
nephews and nieces of Basilia. This opposition was,
however, dismissed and the probate of the will
allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was
destined under the will to pass on to the respondents
Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz,
Alberto Cruz, and Luz Cruz-Salonga, all of whom had
been assumed and declared by Basilia as her own
legally adopted children.
On April 23, 1959, more than two years after her will
was allowed to probate, Basilia died. The respondent
Perfecto Cruz was appointed executor without bond
by the same court in accordance with the provisions
of the decedent's will, notwithstanding the blocking
attempt pursued by the petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners
filed in the same proceedings a petition in
intervention for partition alleging in substance that
they are the nearest of kin of Basilia, and that the five
respondents Perfecto Cruz, et al., had not in fact
been adopted by the decedent in accordance with
law, in effect rendering these respondents mere
strangers to the decedent and without any right to
succeed as heirs.
Notwithstanding opposition by the respondent
Perfecto Cruz, as executor of the estate, the court a
quo allowed the petitioners' intervention by its order
of December 22, 1959, couched in broad terms, as
follows: "The Petition in Intervention for Partition filed
by the above-named oppositors [Ruben Austria, et
al.,] dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the
matter of authenticity or lack of it of the several
adoption papers produced and presented by the
respondents. On motion of the petitioners Ruben
Austria, et al., these documents were referred to the
National Bureau of Investigation for examination and
advice. N.B.I. report seems to bear out the
genuineness of the documents, but the petitioners,
evidently dissatisfied with the results, managed to
obtain a preliminary opinion from a Constabulary
questioned-document examiner whose views
undermine the authenticity of the said documents.
The petitioners Ruben Austria, et al., thus moved the
lower court to refer the adoption papers to the
Philippine Constabulary for further study. The
petitioners likewise located former personnel of the
court which appeared to have granted the questioned
adoption, and obtained written depositions from two
of them denying any knowledge of the pertinent
adoption proceedings.
On February 6, 1963, more than three years after
they were allowed to intervene, the petitioners Ruben
Austria, let al., moved the lower court to set for
hearing the matter of the genuineness of the adoption
of the respondents Perfecto Cruz, et al., by the late
Basilia. Before the date set by the court for hearing
arrived, however, the respondent Benita Cruz-Meez
who entered an appearance separately from that of
her brother Perfecto Cruz, filed on February 28, 1963
a motion asking the lower court, by way of alternative
relief, to confine the petitioners' intervention, should it
be permitted, to properties not disposed of in the will
of the decedent.
On March 4, 1963, the lower court heard the
respondent Benita's motion. Both sides subsequently
submitted their respective memoranda, and finally,
the lower court issued an order on June 4, 1963,
delimiting the petitioners' intervention to the
properties of the deceased which were not disposed
of in the will.
The petitioners moved the lower court to reconsider
this latest order, eliciting thereby an opposition, from
the respondents. On October 25, 1963 the same
court denied the petitioners' motion for
reconsideration.
A second motion for reconsideration which set off a
long exchange of memoranda from both sides, was
summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to
annul the orders of June 4 and October 25, 1963 and
the order of April 21, 1964, all restricting petitioners'
intervention to properties that were not included in
the decedent's testamentary dispositions.
The uncontested premises are clear. Two interests
are locked in dispute over the bulk of the estate of the
deceased. Arrayed on one side are the petitioners
Ruben Austria, Consuelo Austria-Benta and Lauro
Austria Mozo, three of a number of nephews and
nieces who are concededly the nearest surviving
Page 7 of 24
blood relatives of the decedent. On the other side are
the respondents brothers and sisters, Perfecto Cruz,
Benita Cruz-Meez, Isagani Cruz, Alberto Cruz and
Luz Cruz-Salonga, all of whom heirs in the will of the
deceased Basilia, and all of whom claim kinship with
the decedent by virtue of legal adoption. At the heart
of the controversy is Basilia's last will immaculate
in its extrinsic validity since it bears the imprimatur of
duly conducted probate proceedings.
The complaint in intervention filed in the lower court
assails the legality of the tie which the respondent
Perfecto Cruz and his brothers and sisters claim to
have with the decedent. The lower court had,
however, assumed, by its orders in question, that the
validity or invalidity of the adoption is not material nor
decisive on the efficacy of the institution of heirs; for,
even if the adoption in question were spurious, the
respondents Perfecto Cruz, et al., will nevertheless
succeed not as compulsory heirs but as testamentary
heirs instituted in Basilia's will. This ruling apparently
finds support in article, 842 of the Civil Code which
reads:
One who has no compulsory heirs may dispose of by
will all his estate or any part of it in favor of any
person having capacity to succeed.
One who has compulsory heirs may dispose of his
estate provided he does not contravene the
provisions of this Code with regard to the legitime of
said heirs.
The lower court must have assumed that since the
petitioners nephews and niece are not compulsory
heirs, they do not possess that interest which can be
prejudiced by a free-wheeling testamentary
disposition. The petitioners' interest is confined to
properties, if any, that have not been disposed of in
the will, for to that extent intestate succession can
take place and the question of the veracity of the
adoption acquires relevance.
The petitioners nephews and niece, upon the other
hand, insist that the entire estate should descend to
them by intestacy by reason of the intrinsic nullity of
the institution of heirs embodied in the decedent's
will. They have thus raised squarely the issue of
whether or not such institution of heirs would retain
efficacy in the event there exists proof that the
adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850
of the Civil Code which reads:
The statement of a false cause for the institution of
an heir shall be considered as not written, unless it
appears from the will that the testator would not have
made such institution if he had known the falsity of
such cause.
Coming closer to the center of the controversy, the
petitioners have called the attention of the lower court
and this Court to the following pertinent portions of
the will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos
forzosos) ay ang aking itinuturing na mga anak na
tunay (Hijos legalmente adoptados) na sina Perfecto,
Alberto, Luz, Benita at Isagani, na pawang may
apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking
ipinamamana ang aking mga ari-ariang maiiwan, sa
kaparaanang sumusunod:
A.Aking ipinamamana sa aking nabanggit na
limang anak na sina Perfecto, Alberto, Luz, Benita at
Isagani, na pawang may apelyidong Cruz, na
parepareho ang kaparti ng bawa't isa at walang
lamangan (en partes iguales), bilang kanilang
sapilitang mana (legiti[ma]), ang kalahati () ng aking
kaparti sa lahat ng aming ari-ariang gananciales ng
aking yumaong asawang Pedro Cruz na napapaloob
sa Actuacion Especial No. 640 ng Hukumang Unang
Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV
ng testamentong ito, ang kalahati () ng mga lagay
na lupa at palaisdaan na nasa Obando at Polo,
Bulacan, na namana ko sa aking yumaong ama na si
Calixto Austria, at ang kalahati () ng ilang lagay na
lupa na nasa Tinejeros, Malabon, Rizal, na aking
namana sa yumao kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners
argue, gives rise to the inference that the late Basilia
was deceived into believing that she was legally
bound to bequeath one-half of her entire estate to the
respondents Perfecto Cruz, et al. as the latter's
legitime. The petitioners further contend that had the
deceased known the adoption to be spurious, she
would not have instituted the respondents at all
the basis of the institution being solely her belief that
they were compulsory heirs. Proof therefore of the
falsity of the adoption would cause a nullity of the
institution of heirs and the opening of the estate wide
to intestacy. Did the lower court then abuse its
discretion or act in violation of the rights of the parties
in barring the petitioners nephews and niece from
registering their claim even to properties adjudicated
by the decedent in her will?
Before the institution of heirs may be annulled under
article 850 of the Civil Code, the following requisites
must concur: First, the cause for the institution of
heirs must be stated in the will; second, the cause
must be shown to be false; and third, it must appear
from the face of the will that the testator would not
have made such institution if he had known the falsity
of the cause.
The petitioners would have us imply, from the use of
the terms, "sapilitang tagapagmana" (compulsory
Page 8 of 24
heirs) and "sapilitang mana" (legitime), that the
impelling reason or cause for the institution of the
respondents was the testatrix's belief that under the
law she could not do otherwise. If this were indeed
what prompted the testatrix in instituting the
respondents, she did not make it known in her will.
Surely if she was aware that succession to the
legitime takes place by operation of law, independent
of her own wishes, she would not have found it
convenient to name her supposed compulsory heirs
to their legitimes. Her express adoption of the rules
on legitimes should very well indicate her complete
agreement with that statutory scheme. But even this,
like the petitioners' own proposition, is highly
speculative of what was in the mind of the testatrix
when she executed her will. One fact prevails,
however, and it is that the decedent's will does not
state in a specific or unequivocal manner the cause
for such institution of heirs. We cannot annul the
same on the basis of guesswork or uncertain
implications.
And even if we should accept the petitioners' theory
that the decedent instituted the respondents Perfecto
Cruz, et al. solely because she believed that the law
commanded her to do so, on the false assumption
that her adoption of these respondents was valid, still
such institution must stand.
Article 850 of the Civil Code, quoted above, is a
positive injunction to ignore whatever false cause the
testator may have written in his will for the institution
of heirs. Such institution may be annulled only when
one is satisfied, after an examination of the will, that
the testator clearly would not have made the
institution if he had known the cause for it to be false.
Now, would the late Basilia have caused the
revocation of the institution of heirs if she had known
that she was mistaken in treating these heirs as her
legally adopted children? Or would she have
instituted them nonetheless?
The decedent's will, which alone should provide the
answer, is mute on this point or at best is vague and
uncertain. The phrases, "mga sapilitang
tagapagmana" and "sapilitang mana," were borrowed
from the language of the law on succession and were
used, respectively, to describe the class of heirs
instituted and the abstract object of the inheritance.
They offer no absolute indication that the decedent
would have willed her estate other than the way she
did if she had known that she was not bound by law
to make allowance for legitimes. Her disposition of
the free portion of her estate (libre disposicion) which
largely favored the respondent Perfecto Cruz, the
latter's children, and the children of the respondent
Benita Cruz, shows a perceptible inclination on her
part to give to the respondents more than what she
thought the law enjoined her to give to them.
Compare this with the relatively small devise of land
which the decedent had left for her blood relatives,
including the petitioners Consuelo Austria-Benta and
Lauro Mozo and the children of the petitioner Ruben
Austria. Were we to exclude the respondents
Perfecto Cruz, et al. from the inheritance, then the
petitioners and the other nephews and nieces would
succeed to the bulk of the testate by intestacy a
result which would subvert the clear wishes of the
decedent.
Whatever doubts one entertains in his mind should
be swept away by these explicit injunctions in the
Civil Code: "The words of a will are to receive an
interpretation which will give to every expression
some effect, rather than one which will render any of
the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will
prevent intestacy."
1

Testacy is favored and doubts are resolved on its
side, especially where the will evinces an intention on
the part of the testator to dispose of practically his
whole estate,
2
as was done in this case. Moreover,
so compelling is the principle that intestacy should be
avoided and the wishes of the testator allowed to
prevail, that we could even vary the language of the
will for the purpose of giving it effect.
3
A probate court
has found, by final judgment, that the late Basilia
Austria Vda. de Cruz was possessed of testamentary
capacity and her last will executed free from
falsification, fraud, trickery or undue influence. In this
situation, it becomes our duty to give full expression
to her will.
4

At all events, the legality of the adoption of the
respondents by the testatrix can be assailed only in a
separate action brought for that purpose, and cannot
be the subject of a collateral attack.
5

To the petitioners' charge that the lower court had no
power to reverse its order of December 22, 1959,
suffice it to state that, as borne by the records, the
subsequent orders complained of served merely to
clarify the first an act which the court could legally
do. Every court has the inherent power to amend and
control its processes and orders so as to make them
conformable to law and justices.
6
That the court a
quo has limited the extent of the petitioners'
intervention is also within its powers as articulated by
the Rules of Court.
7

ACCORDINGLY, the present petition is denied, at
petitioners cost.

Page 9 of 24
3. AZNAR vs. DUNCAN
G.R. No. L-24365 J une 30, 1966

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.
x x x x x x x x x
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.
x x x x x x x x x
12. I hereby give, devise and bequeath, unto my well-
beloved daughter, the said MARIA LUCY
CHRISTENSEN DANEY (Mrs. Bernard Daney) now
residing, as aforesaid, at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of my
property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever
situated, of which I may be possessed at my death
and which may have come to me from any source
whatsoever, during her lifetime; Provided, however,
that should the said MARIA LUCY CHRISTENSEN
DANEY at anytime prior to her decease having living
issue, then and in that event, the life interest herein
given shall terminate, and if so terminated, then I
give, devise, and bequeath to my daughter, the said
MARIA LUCY CHRISTENSEN DANEY the rest,
remainder and residue of my property with the same
force and effect as if I had originally so given, devised
and bequeathed it to her; and provided, further, that
should the said MARIA LUCY CHRISTENSEN
DANEY die without living issue, then, and in that
event, I give, devise and bequeath all the rest,
remainder and residue of my property one-half (1/2)
to my well-beloved sister, Mrs. CARRIE LOUISE C.
Page 10 of 24
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
Trevio, 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
sealada 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
extraos o en favor de otros legitimarios por via de
legado donacion o mejora mayor cantidad de la que
la ley de consentia disponer. El heredero forzoso no
puede perder su legitima, pero tampoco puede pedir
mas que la misma. De aqui su derecho a reclamar
solamente lo que le falta; al complemento de la
porcion que forzosamente la corresponde.
... Dejar el testador por cualquier titulo, equivale a
disponer en testamento por titulo de herencia legado
o mejora, y en favor de legitimarios, de alguna
cantidad o porcion de bienes menos que la legitima o
igual a la misma. Tal sentido, que es el mas proprio
en al articulo 815, no pugna tampoco con la doctrina
de la ley. Cuando en el testamento se deja algo al
heredero forzoso, la pretericion es incompleta: es
mas formularia que real. Cuando en el testamento
nada se deja el legitimario, hay verdadera
pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)
On the difference between preterition of a
compulsory heir and the right to ask for completion of
his legitime, Sanchez Roman says:
La desheredacion, como expresa, es siempre
voluntaria; la pretericion puede serlo pero se
presume involuntaria la omision en que consiste en
cuanto olvida o no atiende el testador en su
testamento a la satisfaccion del derecho a la legitima
del heredero forzoso preterido, prescindiendo
absoluta y totalmente de el y no mencionandole en
ninguna de sus disposiciones testamentarias, o no
instituyendole en parte alguna de la herencia, ni por
titulo de heredero ni por el de legatar o aunque le
mencionara o nombrara sin dejarle mas o menos
bienes. Si le dejara algunos, por pocos que sean e
insuficientes para cubrir su legitima, ya no seria caso
de pretericion, sino de complemento de aquella. El
primer supuesto o de pretericion se regula por el
articulo 814, y produce accion de nulidad de la
institucion de heredero; y el segundo, o de
complemento de legitima por el 815 y solo original la
Page 11 of 24
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.1wph1.t
x x x x x x x x x
B. Que la omision sea completa Esta condicion se
deduce del mismo Articulo 814 y resulta con
evidencia al relacionar este articulo con el 815. El
heredero forzoso a quien el testador deja algo por
cualquier titulo en su testamento, no se halla
propiamente omitido pues se le nombra y se le
reconoce participacion en los bienes hereditarios.
Podria discutirse en el Articulo 814 si era o no
necesario que se reconociese el derecho del
heredero como tal heredero, pero el articulo 815
desvanece esta duda. Aquel se ocupa de privacion
completa o total, tacita este, de la privacion parcial.
Los efectos deben ser y son, como veremos
completamente distintos (6 Manresa, p. 428.)
La privacion de la legitima puede ser total o parcial.
Privar totalmente de la legitima es negarla en
absoluto al legitimario, despojarle de ella por
completo. A este caso se refiere el articulo 814.
Privar parcialmente de la legitima, es menguarla o
reducirla dejar al legitimario una porcion, menor que
la que le corresponde. A este caso se refiere el
articulo 815. El 813 sienta, pues, una regla general, y
las consecuencias del que brantamiento de esta
regla se determina en los articulos 814 y 815. (6
Manresa p. 418.)
Again Sanchez Roman:
QUE LA OMISSION SEA TOTAL. Aunque el
articulo 814 no consigna de modo expreso esta
circunstancia de que la pretericion o falta de mencion
e institucion o disposicion testamentaria a su favor,
sea total, completa y absoluta, asi se deduce de no
hacer distincion o salvedad alguna empleandola en
terminos generales; pero sirve a confirmarlo de un
modo indudable el siguiente articulo 815, al decir que
el heredero forzoso a quien el testador haya dejado
por cualquier titulo, menos de la legitima que la
corresponda, podria pedir el complemento de la
misma, lo cual ya no son el caso ni los efectos de la
pretericion, que anula la institucion, sino simplemente
los del suplemento necesario para cubrir su legitima.
(Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.)
The question may be posed: In order that the right of
a forced heir may be limited only to the completion of
his legitime (instead of the annulment of the
institution of heirs) is it necessary that what has been
left to him in the will "by any title," as by legacy, be
granted to him in his capacity as heir, that is, a titulo
de heredero? In other words, should he be
recognized or referred to in the will as heir? This
question is pertinent because in the will of the
deceased Edward E. Christensen Helen Garcia is not
mentioned as an heir indeed her status as such is
denied but is given a legacy of P3,600.00.
While the classical view, pursuant to the Roman law,
gave an affirmative answer to the question, according
to both Manresa (6 Manresa 7th 3rd. 436) and
Sanchez Roman (Tomo VI, Vol. 2.0 p. 937), that
view was changed by Article 645 of the "Proyecto de
Codigo de 1851," later on copied in Article 906 of our
own Code. Sanchez Roman, in the citation given
above, comments as follows:
RESPECTO DEL COMPLEMENTO DE LA
LEGITIMA. Se inspira el Codigo en esta materia
en la doctrina clasica del Derecho romano y patrio
(2); pero con alguna racional modificacion.
Concedian aquellos precedentes legales al heredero
forzoso, a quien no se le dejaba por titulo de tal el
completo de su legitima, la accion para invalidar la
institucion hecha en el testamento y reclamar y
obtener aquella mediante el ejercicio de la querella
de inoficioso, y aun cuando resultara favorecido
como donotario, por otro titulo que no fuera el de
heredero, sino al honor de que se le privaba no
dandole este caracter, y solo cuando era instituido
heredero en parte o cantidad inferior a lo que le
correspondiera por legitima, era cuando bastaba el
ejercicio de la accion ad suplementum para
completarla, sin necesidad de anular las otras
instituciones de heredero o demas disposiciones
contenidas en el testamento.
El Articulo 851 se aparta de este criterio estricto y se
ajusta a la unica necesidad que le inspira cual es la
de que se complete la legitima del heredero forzoso,
a quien por cualquier titulo se haya dejado menos de
lo que le corresponda, y se le otorga tan solo el
derecho de pedir el complemento de la misma sin
necesidad de que se anulen las disposiciones
testamentarias, que se reduciran en lo que sean
inoficiosas conforme al articulo 817, cuya
interpretacion y sentido tienen ya en su apoyo la
sancion de la jurisprudencia (3); siendo condicion
precisa que lo que se hubiere dejado de menos de la
legitima al heredero forzoso, lo haya sido en el
testamento, o sea por disposicion del testador, segun
lo revela el texto del articulo, "el heredero forzoso a
quien el testador haya dejado, etc., esto es por titulo
de legado o donacion mortis causa en el testamento
Page 12 of 24
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.

Page 13 of 24
4. REYES vs. BARRETTO-DATU
G.R. No. L-17818 J anuary 25, 1967
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 an nieces The
usufruct o the fishpon situate i barrio Sa
Roque Hagonoy, Bulacan, above-mentioned,
however, was reserved for his widow, Maria
Gerardo I the meantime Maria Gerardo was
appointe 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.
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
Page 14 of 24
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 () 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.
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
Page 15 of 24
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 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
Page 16 of 24
reliable evidence of the alleged promise, which rests
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.


Page 17 of 24
5. ACAIN vs. IAC
G.R. No. 72706 October 27, 1987

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 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;
Page 18 of 24
(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 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.
Page 19 of 24
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:
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.
In Cayetano v. Leonides, supra one of the issues
raised in the motion to dismiss the 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 appeared to have preterited
the petitioner the respondent judge should have
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
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
Page 20 of 24
appeal would not afford speedy and adequate relief.
(Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby
DENIED for lack of merit and the questioned decision
of respondent Court of Appeals promulgated on
August 30, 1985 and its Resolution dated October
23, 1985 are hereby AFFIRMED.
SO ORDERED.

Page 21 of 24
6. NUGUID vs. NUGUID
G.R. No. L-23445 J une 23, 1966
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.1wph1.t
The court's order of November 8, 1963, held that "the
will in question is a complete nullity and will perforce
create intestacy of the estate of the deceased
Rosario Nuguid" and dismissed the petition without
costs.
A motion to reconsider having been thwarted below,
petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has
engaged our attention. The case is for the probate of
a will. The court's area of inquiry is limited to an
examination of, and resolution on, the extrinsic
validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance
with the requisites or solemnities by law prescribed,
are the questions solely to be presented, and to be
acted upon, by the court. Said court at this stage of
the proceedings is not called upon to rule on the
intrinsic validity or efficacy of the provisions of the
will, the legality of any devise or legacy therein.
1

A peculiar situation is here thrust upon us. The
parties shunted aside the question of whether or not
the will should be allowed probate. For them, the
meat of the case is the intrinsic validity of the will.
Normally, this comes only after the court has
declared that the will has been duly authenticated.
2

But petitioner and oppositors, in the court below and
here on appeal, travelled on the issue of law, to wit:
Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded
for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for
aught that appears in the record, in the event of
probate or if the court rejects the will, probability
exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity
of the will. Result: waste of time, effort, expense, plus
added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet
head-on the issue of the validity of the provisions of
the will in question.
3
After all, there exists a justiciable
controversy crying for solution.
2. Petitioner's sole assignment of error challenges the
correctness of the conclusion below that the will is a
complete nullity. This exacts from us a study of the
disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
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
Page 22 of 24
testator, shall void the institution of heir; but the
legacies and betterments
4
shall be valid, in so far as
they are not inofficious. ...
A comprehensive understanding of the term
preterition employed in the law becomes a necessity.
On this point Manresa comments:
La pretericion consiste en omitar al heredero en el
testamento. O no se le nombra siquiera o aun
nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le
asigna parte alguna de los bienes, resultando privado
de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo
814, basta que en el testamento omita el testador a
uno cualquiera de aquellos a quienes por su muerte
corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un
heredero forzoso. b) Que la omision sea completa;
que el heredero forzoso nada reciba en el
testamento.
It may now appear trite bat nonetheless helpful in
giving us a clear perspective of the problem before
us, to have on hand a clear-cut definition of the word
annul:
To "annul" means to abrogate, to make void ... In re
Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.
6

The word "annul" as used in statute requiring court to
annul alimony provisions of divorce decree upon
wife's remarriage means to reduce to nothing; to
annihilate; obliterate; blot out; to make void or of no
effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now
N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611,
614, 136 N..J Eq. 132.
7

ANNUL. To reduce to nothing; annihilate; obliterate;
to make void or of no effect; to nullify; to abolish; to
do away with. Ex parte Mitchell, 123 W. Va. 283, 14
S.E. 2d. 771, 774.
8

And now, back to the facts and the law. The
deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in
the direct ascending line her parents, now oppositors
Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received
nothing by the testament; tacitly, they were deprived
of their legitime; neither were they expressly
disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre
la institucion de heredero, dando caracter absoluto a
este ordenamiento referring to the mandate of Article
814, now 854 of the Civil Code.
9
The one-sentence
will here institutes petitioner as the sole, universal
heir nothing more. No specific legacies or
bequests are therein provided for. It is in this posture
that we say that the nullity is complete. Perforce,
Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo
que se anula deja de existir, en todo o en parte? No
se aade 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
Page 23 of 24
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

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
Page 24 of 24
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 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.