XII.

PRETERITION. Arts. 854, 906, 855, 918

Heirs of Policronio Ureta, Sr. v. Heirs of Liberato Ureta, G.R. No. 165748 and
165930, September 14, 2011

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION
HEIRS OF POLICRONIO M.
URETA, SR., namely: CONRADO
B. URETA, MACARIO B. URETA,
GLORIA URETA-GONZALES,
ROMEO B. URETA, RITA URETASOLANO, NENA URETATONGCUA, VENANCIO B.
URETA, LILIA URETA-TAYCO,
and HEIRS OF POLICRONIO B.
URETA, JR., namely: MIGUEL T.
URETA, RAMON POLICRONIO
T. URETA, EMMANUEL T.
URETA, and BERNADETTE T.
URETA,
Petitioners,
- versus HEIRS OF LIBERATO M. URETA,
namely: TERESA F. URETA,
AMPARO URETA-CASTILLO,
IGNACIO F. URETA, SR.,
EMIRITO F. URETA, WILKIE F.
URETA, LIBERATO F. URETA,

G.R. No. 165748

JR., RAY F. URETA, ZALDY F.

URETA, and MILA JEAN URETA
CIPRIANO;
HEIRS OF PRUDENCIA URETA
PARADERO, namely: WILLIAM
U. PARADERO, WARLITO U.
PARADERO, CARMENCITA P.
PERLAS, CRISTINA P.
CORDOVA, EDNA P. GALLARDO,
LETICIA P. REYES; NARCISO M.
URETA;
VICENTE M. URETA;
HEIRS OF FRANCISCO M.
URETA, namely: EDITA T.
URETA-REYES and LOLLIE T.
URETA-VILLARUEL; ROQUE M.
URETA; ADELA URETAGONZALES; HEIRS OF
INOCENCIO M. URETA, namely:
BENILDA V. URETA, ALFONSO V.
URETA II, DICK RICARDO V.
URETA, and ENRIQUE V. URETA;
MERLINDA U. RIVERA; JORGE
URETA; ANDRES URETA,
WENEFREDA U. TARAN; and
BENEDICT URETA,
Respondents.
x--------------------------------------------------x
HEIRS OF LIBERATO M. URETA, G.R. No. 165930
namely: TERESA F. URETA,
AMPARO URETA-CASTILLO,
IGNACIO F. URETA, SR.,
EMIRITO F. URETA, WILKIE F.
URETA, LIBERATO F. URETA,
JR., RAY F. URETA, ZALDY F.
URETA, and MILA JEAN URETA
CIPRIANO;
HEIRS OF PRUDENCIA URETA
PARADERO, namely: WILLIAM
U. PARADERO, WARLITO U.

PARADERO, CARMENCITA P.
PERLAS, CRISTINA P.
CORDOVA, EDNA P. GALLARDO,
LETICIA P. REYES; NARCISO M.
URETA;
VICENTE M. URETA;
HEIRS OF FRANCISCO M.
URETA, namely: EDITA T.
URETA-REYES and LOLLIE T.
URETA-VILLARUEL; ROQUE M.
URETA; ADELA URETAGONZALES; HEIRS OF
INOCENCIO M. URETA, namely:
BENILDA V. URETA, ALFONSO V.
URETA II, DICK RICARDO V.
URETA, and ENRIQUE V. URETA;
MERLINDA U. RIVERA; JORGE
URETA; ANDRES URETA,
WENEFREDA U. TARAN; and
BENEDICT URETA,
Petitioners,
- versus
HEIRS OF POLICRONIO M.
URETA, SR., namely: CONRADO
B. URETA, MACARIO B. URETA,
GLORIA URETA-GONZALES,
ROMEO B. URETA, RITA URETASOLANO, NENA URETATONGCUA, VENANCIO B.
URETA, LILIA URETA-TAYCO,
and HEIRS OF POLICRONIO B.
URETA, JR., namely: MIGUEL T.
URETA, RAMON POLICRONIO
T. URETA, EMMANUEL T.
URETA, and BERNADETTE T.
URETA,

Present:
VELASCO, JR., J., Chairperson,
PERALTA,
ABAD,
MENDOZA, and
SERENO, JJ.

Promulgated:

Respondents.

September 14, 2011

x--------------------------------------------------x

DECISION
MENDOZA, J.:
These consolidated petitions for review on certiorari under Rule 45 of
the 1997 Revised Rules of Civil Procedure assail the April 20, 2004
Decision[1] of the Court of Appeals (CA), and its October 14, 2004
Resolution[2] in C.A.-G.R. CV No. 71399, which affirmed with modification
the April 26, 2001 Decision[3] of the Regional Trial Court, Branch 9, Kalibo,
Aklan (RTC) in Civil Case No. 5026.
The Facts
In his lifetime, Alfonso Ureta (Alfonso) begot 14 children, namely,
Policronio, Liberato, Narciso, Prudencia, Vicente, Francisco, Inocensio,
Roque, Adela, Wenefreda, Merlinda, Benedicto, Jorge, and Andres. The
children of Policronio (Heirs of Policronio), are opposed to the rest of
Alfonsos children and their descendants (Heirs of Alfonso).
Alfonso was financially well-off during his lifetime. He owned several
fishpens, a fishpond, a sari-sari store, a passenger jeep, and was engaged in
the buying and selling of copra. Policronio, the eldest, was the only child of
Alfonso who failed to finish schooling and instead worked on his fathers
lands.
Sometime in October 1969, Alfonso and four of his children, namely,
Policronio, Liberato, Prudencia, and Francisco, met at the house of Liberato.
Francisco, who was then a municipal judge, suggested that in order to reduce
the inheritance taxes, their father should make it appear that he had sold
some of his lands to his children. Accordingly, Alfonso executed four
(4) Deeds of Sale covering several parcels of land in favor of Policronio,
[4]
Liberato,[5]Prudencia,[6] and his common-law wife, Valeriana Dela Cruz.
[7]
The Deed of Sale executed on October 25, 1969, in favor of Policronio,
covered six parcels of land, which are the properties in dispute in this case.

Since the sales were only made for taxation purposes and no monetary
consideration was given, Alfonso continued to own, possess and enjoy the
lands and their produce.
When Alfonso died on October 11, 1972, Liberato acted as the administrator
of his fathers estate. He was later succeeded by his sister Prudencia, and then
by her daughter, Carmencita Perlas. Except for a portion of parcel 5, the rest
of the parcels transferred to Policronio were tenanted by the Fernandez
Family. These tenants never turned over the produce of the lands to
Policronio or any of his heirs, but to Alfonso and, later, to the administrators
of his estate.
Policronio died on November 22, 1974. Except for the said portion of
parcel 5, neither Policronio nor his heirs ever took possession of the subject
lands.
On April 19, 1989, Alfonsos heirs executed a Deed of Extra-Judicial
Partition,[8] which included all the lands that were covered by the four (4)
deeds of sale that were previously executed by Alfonso for taxation purposes.
Conrado, Policronios eldest son, representing the Heirs of Policronio, signed
the Deed of Extra-Judicial Partition in behalf of his co-heirs.
After their fathers death, the Heirs of Policronio found tax declarations in his
name covering the six parcels of land. On June 15, 1995, they obtained a
copy of the Deed of Sale executed on October 25, 1969 by Alfonso in favor
of Policronio.
Not long after, on July 30, 1995, the Heirs of Policronio allegedly learned
about the Deed of Extra-Judicial Partition involving Alfonsos estate when it
was published in the July 19, 1995 issue of the Aklan Reporter.
Believing that the six parcels of land belonged to their late father, and
as such, excluded from the Deed of Extra-Judicial Partition, the Heirs of
Policronio sought to amicably settle the matter with the Heirs of Alfonso.
Earnest efforts proving futile, the Heirs of Policronio filed a Complaint for
Declaration of Ownership, Recovery of Possession, Annulment of
Documents, Partition, and Damages[9] against the Heirs of Alfonso before the
RTC on November 17, 1995 where the following issues were submitted: (1)

whether or not the Deed of Sale was valid; (2) whether or not the Deed of
Extra-Judicial Partition was valid; and (3) who between the parties was
entitled to damages.
The Ruling of the RTC
On April 26, 2001, the RTC dismissed the Complaint of the Heirs of
Policronio and ruled in favor of the Heirs of Alfonso in a decision, the
dispositive portion of which reads:
WHEREFORE, the Court finds that the preponderance of
evidence tilts in favor of the defendants, hence the instant case is
hereby DISMISSED.
The counterclaims are likewise DISMISSED.
With costs against plaintiffs.
SO ORDERED.

The RTC found that the Heirs of Alfonso clearly established that the
Deed of Sale was null and void. It held that the Heirs of Policronio failed to
rebut the evidence of the Heirs of Alfonso, which proved that the Deed of
Sale in the possession of the former was one of the four (4) Deeds of Sale
executed by Alfonso in favor of his 3 children and second wife for taxation
purposes; that although tax declarations were issued in the name of
Policronio, he or his heirs never took possession of the subject lands except a
portion of parcel 5; and that all the produce were turned over by the tenants
to Alfonso and the administrators of his estate and never to Policronio or his
heirs.
The RTC further found that there was no money involved in the sale.
Even granting that there was, as claimed by the Heirs of Policronio,
2,000.00 for six parcels of land, the amount was grossly inadequate. It was
also noted that the aggregate area of the subject lands was more than double
the average share adjudicated to each of the other children in the Deed of
Extra-Judicial Partition; that the siblings of Policronio were the ones who
shared in the produce of the land; and that the Heirs of Policronio only paid
real estate taxes in 1996 and 1997. The RTC opined that Policronio must
have been aware that the transfer was merely for taxation purposes because

he did not subsequently take possession of the properties even after the death
of his father.
The Deed of Extra-Judicial Partition, on the other hand, was
declared valid by the RTC as all the heirs of Alfonso were represented and
received equal shares and all the requirements of a valid extra-judicial
partition were met. The RTC considered Conrados claim that he did not
understand the full significance of his signature when he signed in behalf of
his co-heirs, as a gratutitous assertion. The RTC was of the view that when
he admitted to have signed all the pages and personally appeared before the
notary public, he was presumed to have understood their contents.
Lastly, neither party was entitled to damages. The Heirs of Alfonso
failed to present testimony to serve as factual basis for moral damages, no
document was presented to prove actual damages, and the Heirs of
Policronio were found to have filed the case in good faith.
The Ruling of the CA
Aggrieved, the Heirs of Policronio appealed before the CA, which
rendered a decision on April 20, 2004, the dispositive portion of which reads
as follows:
WHEREFORE, the appeal is PARTIALLY GRANTED. The
appealed Decision, dated 26 April 2001, rendered by Hon. Judge
Dean R. Telan of the Regional Trial Court of Kalibo, Aklan, Branch
9, is hereby AFFIRMED with MODIFICATION:
1.) The Deed of Sale in favor of Policronio Ureta, Sr.,
dated 25 October 1969, covering six (6) parcels of land is hereby
declared VOID for beingABSOLUTELY SIMULATED;
2.) The Deed of Extra-Judicial Partition, dated 19 April 1989,
is ANNULLED;
3.) The claim for actual and exemplary
are DISMISSED for lack of factual and legal basis.

damages

The case is hereby REMANDED to the court of origin for the

proper partition of ALFONSO URETAS Estate in accordance with
Rule 69 of the 1997 Rules of Civil Procedure. No costs at this
instance.

SO ORDERED.

The CA affirmed the finding of the RTC that the Deed of Sale was void. It
found the Deed of Sale to be absolutely simulated as the parties did not
intend to be legally bound by it. As such, it produced no legal effects and did
not alter the juridical situation of the parties. The CA also noted that Alfonso
continued to exercise all the rights of an owner even after the execution of
the Deed of Sale, as it was undisputed that he remained in possession of the
subject parcels of land and enjoyed their produce until his death.
Policronio, on the other hand, never exercised any rights pertaining to
an owner over the subject lands from the time they were sold to him up until
his death. He never took or attempted to take possession of the land even
after his fathers death, never demanded delivery of the produce from the
tenants, and never paid realty taxes on the properties. It was also noted that
Policronio never disclosed the existence of the Deed of Sale to his children,
as they were, in fact, surprised to discover its existence. The CA, thus,
concluded that Policronio must have been aware that the transfer was only
made for taxation purposes.
The testimony of Amparo Castillo, as to the circumstances
surrounding the actual arrangement and agreement between the parties prior
to the execution of the four (4) Deeds of Sale, was found by the CA to be
unrebutted. The RTCs assessment of the credibility of her testimony was
accorded respect, and the intention of the parties was given the primary
consideration in determining the true nature of the contract.
Contrary to the finding of the RTC though, the CA annulled the Deed
of Extra-Judicial Partition due to the incapacity of one of the parties to give
his consent to the contract. It held that before Conrado could validly bind his
co-heirs to the Deed of Extra-Judicial Partition, it was necessary that he be
clothed with the proper authority. The CA ruled that a special power of
attorney was required under Article 1878 (5) and (15) of the Civil
Code. Without a special power of attorney, it was held that Conrado lacked
the legal capactiy to give the consent of his co-heirs, thus, rendering the
Deed of Extra-Judicial Partition voidable under Article 1390 (1) of the Civil
Code.

As a consequence, the CA ordered the remand of the case to the RTC for the
proper partition of the estate, with the option that the parties may still
voluntarily effect the partition by executing another agreement or by
adopting the assailed Deed of Partition with the RTCs approval in either
case. Otherwise, the RTC may proceed with the compulsory partition of the
estate in accordance with the Rules.
With regard to the claim for damages, the CA agreed with the RTC
and dismissed the claim for actual and compensatory damages for lack of
factual and legal basis.
Both parties filed their respective Motions for Reconsideration, which
were denied by the CA for lack of merit in a Resolution dated October 14,
2004.
In their Motion for Reconsideration, the Heirs of Policronio argued that the
RTC violated the best evidence rule in giving credence to the testimony of
Amparo Castillo with regard to the simulation of the Deed of Sale, and that
prescription had set in precluding any question on the validity of the
contract.
The CA held that the oral testimony was admissible under Rule 130,
Section 9 (b) and (c), which provides that evidence aliunde may be allowed
to explain the terms of the written agreement if the same failed to express the
true intent and agreement of the parties thereto, or when the validity of the
written agreement was put in issue. Furthermore, the CA found that the Heirs
of Policronio waived their right to object to evidence aliunde having failed to
do so during trial and for raising such only for the first time on appeal. With
regard to prescription, the CA ruled that the action or defense for the
declaration of the inexistence of a contract did not prescribe under Article
1410 of the Civil Code.
On the other hand, the Heirs of Alfonso argued that the Deed of ExtraJudicial Partition should not have been annulled, and instead the preterited
heirs should be given their share. The CA reiterated that Conrados lack of
capacity to give his co-heirs consent to the extra-judicial settlement rendered
the same voidable.

Hence, the present Petitions for Review on Certiorari.

The Issues
The issues presented for resolution by the Heirs of Policronio in G.R.
No. 165748 are as follows:
I.
Whether the Court of Appeals is correct in ruling that the
Deed of Absolute Sale of 25 October 1969 is void for being
absolutely fictitious and in relation therewith, may parol
evidence be entertained to thwart its binding effect after the
parties have both died?
Assuming that indeed the said document is simulated,
whether or not the parties thereto including their successors
in interest are estopped to question its validity, they being
bound by Articles 1412 and 1421 of the Civil Code?
II.
Whether prescription applies to bar any question respecting
the validity of the Deed of Absolute Sale dated 25 October
1969? Whether prescription applies to bar any collateral
attack on the validity of the deed of absolute sale executed
21 years earlier?
III.
Whether the Court of Appeals correctly ruled in nullifying
the Deed of Extrajudicial Partition because Conrado Ureta
signed the same without the written authority from his
siblings in contravention of Article 1878 in relation to
Article 1390 of the Civil Code and in relation therewith,
whether the defense of ratification and/or preterition raised
for the first time on appeal may be entertained?
The issues presented for resolution by the Heirs of Alfonso in G.R.
No. 165930 are as follows:
I.

Whether or not grave error was committed by the Trial

Court and Court of Appeals in declaring the Deed of Sale of
subject properties as absolutely simulated and null and void
thru parol evidence based on their factual findings as to its
fictitious nature, and there being waiver of any objection
based on violation of the parol evidence rule.
II.
Whether or not the Court of Appeals was correct in holding
that Conrado Uretas lack of capacity to give his co-heirs
consent to the Extra-Judicial Partition rendered the same
voidable.
III.
Granting arguendo that Conrado Ureta was not authorized
to represent his co-heirs and there was no ratification,
whether or not the Court of Appeals was correct in ordering
the remand of the case to the Regional Trial Court for
partition of the estate of Alfonso Ureta.
IV.
Since the sale in favor of Policronio Ureta Sr. was null and
void ab initio, the properties covered therein formed part of
the estate of the late Alfonso Ureta and was correctly
included in the Deed of Extrajudicial Partition even if no
prior action for nullification of the sale was filed by the
heirs of Liberato Ureta.
V.
Whether or not the heirs of Policronio Ureta Sr. can claim
that estoppel based on Article 1412 of the Civil Code as well
as the issue of prescription can still be raised on appeal.
These various contentions revolve around two major issues, to wit: (1)
whether the Deed of Sale is valid, and (2) whether the Deed of Extra-Judicial

Partition is valid. Thus, the assigned errors shall be discussed jointly and
in seriatim.
The Ruling of the Court
Validity of the Deed of Sale
Two veritable legal presumptions bear on the validity of the Deed of
Sale: (1) that there was sufficient consideration for the contract; and (2) that
it was the result of a fair and regular private transaction. If shown to hold,
these presumptions infer prima facie the transactions validity, except that it
must yield to the evidence adduced.[10]
As will be discussed below, the evidence overcomes these two
presumptions.
Absolute Simulation
First, the Deed of Sale was not the result of a fair and regular private
transaction because it was absolutely simulated.
The Heirs of Policronio argued that the land had been validly sold to
Policronio as the Deed of Sale contained all the essential elements of a valid
contract of sale, by virtue of which, the subject properties were transferred in
his name as evidenced by the tax declaration. There being no invalidation
prior to the execution of the Deed of Extra-Judicial Partition, the probity and
integrity of the Deed of Sale should remain undiminished and accorded
respect as it was a duly notarized public instrument.
The Heirs of Policronio posited that his loyal services to his father and his
being the eldest among Alfonsos children, might have prompted the old man
to sell the subject lands to him at a very low price as an advance inheritance.
They explained that Policronios failure to take possession of the subject
lands and to claim their produce manifests a Filipino family practice wherein
a child would take possession and enjoy the fruits of the land sold by a
parent only after the latters death. Policronio simply treated the lands the
same way his father Alfonso treated them - where his children enjoyed
usufructuary rights over the properties, as opposed to appropriating them
exclusively to himself. They contended that Policronios failure to take actual

possession of the lands did not prove that he was not the owner as he was
merely exercising his right to dispose of them. They argue that it was an
error on the part of the CA to conclude that ownership by Policronio was not
established by his failure to possess the properties sold. Instead, emphasis
should be made on the fact that the tax declarations, being indicia of
possession, were in Policronios name.
They further argued that the Heirs of Alfonso failed to appreciate that
the Deed of Sale was clear enough to convey the subject parcels of land.
Citing jurisprudence, they contend that there is a presumption that an
instrument sets out the true agreement of the parties thereto and that it was
executed for valuable consideration,[11] and where there is no doubt as to the
intention of the parties to a contract, the literal meaning of the stipulation
shall control.[12]Nowhere in the Deed of Sale is it indicated that the transfer
was only for taxation purposes. On the contrary, the document clearly
indicates that the lands were sold. Therefore, they averred that the literal
meaning of the stipulation should control.
The Court disagrees.
The Court finds no cogent reason to deviate from the finding of the
CA that the Deed of Sale is null and void for being absolutely simulated. The
Civil Code provides:
Art. 1345. Simulation of a contract may be absolute or relative. The
former takes place when the parties do not intend to be bound at
all; the latter, when the parties conceal their true agreement.
Art. 1346. An absolutely simulated or fictitious contract is void. A
relative simulation, when it does not prejudice a third person and is
not intended for any purpose contrary to law, morals, good
customs, public order or public policy binds the parties to their real
agreement.

Valerio v. Refresca[13] is instructive on the matter of simulation of

contracts:
In absolute simulation, there is a colorable contract but it has
no substance as the parties have no intention to be bound by it. The
main characteristic of an absolute simulation is that the apparent
contract is not really desired or intended to produce legal effect or

in any way alter the juridical situation of the parties. As a result, an

absolutely simulated or fictitious contract is void, and the parties
may recover from each other what they may have given under the
contract. However, if the parties state a false cause in the contract
to conceal their real agreement, the contract is relatively simulated
and the parties are still bound by their real agreement. Hence,
where the essential requisites of a contract are present and the
simulation refers only to the content or terms of the contract, the
agreement is absolutely binding and enforceable between the
parties and their successors in interest.

Lacking, therefore, in an absolutely simulated contract is consent

which is essential to a valid and enforceable contract.[14] Thus, where a
person, in order to place his property beyond the reach of his creditors,
simulates a transfer of it to another, he does not really intend to divest
himself of his title and control of the property; hence, the deed of transfer is
but a sham.[15] Similarly, in this case, Alfonso simulated a transfer to
Policronio purely for taxation purposes, without intending to transfer
ownership over the subject lands.
The primary consideration in determining the true nature of a contract
is the intention of the parties. If the words of a contract appear to contravene
the evident intention of the parties, the latter shall prevail. Such intention is
determined not only from the express terms of their agreement, but also from
the contemporaneous and subsequent acts of the parties.[16] The true intention
of the parties in this case was sufficiently proven by the Heirs of Alfonso.
The Heirs of Alfonso established by a preponderance of
evidence[17] that the Deed of Sale was one of the four (4) absolutely
simulated Deeds of Sale which involved no actual monetary consideration,
executed by Alfonso in favor of his children, Policronio, Liberato, and
Prudencia, and his second wife, Valeriana, for taxation purposes.
Amparo Castillo, the daughter of Liberato, testified, to wit:
Q: Now sometime in the year 1969 can you recall if your
grandfather and his children [met] in your house?
A: Yes sir, that was sometime in October 1969 when they [met] in
our house, my grandfather, my late uncle Policronio Ureta, my late
uncle Liberato Ureta, my uncle Francisco Ureta, and then my auntie
Prudencia Ureta they talk[ed] about, that idea came from my uncle

Francisco Ureta to [sell] some parcels of land to his children to

lessen the inheritance tax whatever happened to my grandfather,
actually no money involved in this sale.
Q: Now you said there was that agreement, verbal agreement.
[W]here were you when this Alfonso Ureta and his children
gather[ed] in your house?
A: I was near them in fact I heard everything they were talking
[about]
xxx
Q: Were there documents of sale executed by Alfonso Ureta in
furtherance of their verbal agreement?
A: Yes sir.
Q: To whom in particular did your grandfather Alfonso Ureta
execute this deed of sale without money consideration according to
you?
A: To my uncle Policronio Ureta and to Prudencia Ureta Panadero.
Q: And who else?
A: To Valeriana dela Cruz.
Q: How about your father?
A: He has.[18]

The other Deeds of Sale executed by Alfonso in favor of his children

Prudencia and Liberato, and second wife Valeriana, all bearing the same date
of execution, were duly presented in evidence by the Heirs of Alfonso, and
were uncontested by the Heirs of Policronio. The lands which were the
subject of these Deeds of Sale were in fact included in the Deed of ExtraJudicial Partition executed by all the heirs of Alfonso, where it was
expressly stipulated:
That the above-named Amparo U. Castillo, Prudencia U.
Paradero, Conrado B. Ureta and Merlinda U. Rivera do hereby
recognize and acknowledge as a fact that the properties presently
declared in their respective names or in the names of their
respective parents and are included in the foregoing instrument are

actually the properties of the deceased Alfonso Ureta and were

transferred only for the purpose of effective administration and
development and convenience in the payment of taxes and,
therefore, all instruments conveying or affecting the transfer of said
properties are null and void from the beginning.[19]

As found by the CA, Alfonso continued to exercise all the rights of an

owner even after the execution of the Deeds of Sale. It was undisputed that
Alfonso remained in possession of the subject lands and enjoyed their
produce until his death. No credence can be given to the contention of the
Heirs of Policrionio that their father did not take possession of the subject
lands or enjoyed the fruits thereof in deference to a Filipino family practice.
Had this been true, Policronio should have taken possession of the subject
lands after his father died. On the contrary, it was admitted that neither
Policronio nor his heirs ever took possession of the subject lands from the
time they were sold to him, and even after the death of both Alfonso and
Policronio.
It was also admitted by the Heirs of Policronio that the tenants of the
subject lands never turned over the produce of the properties to Policronio or
his heirs but only to Alfonso and the administrators of his estate. Neither was
there a demand for their delivery to Policronio or his heirs. Neither did
Policronio ever pay real estate taxes on the properties, the only payment on
record being those made by his heirs in 1996 and 1997 ten years after his
death. In sum, Policronio never exercised any rights pertaining to an owner
over the subject lands.
The most protuberant index of simulation of contract is the complete
absence of an attempt in any manner on the part of the ostensible buyer to
assert rights of ownership over the subject properties. Policronios failure to
take exclusive possession of the subject properties or, in the alternative, to
collect rentals, is contrary to the principle of ownership. Such failure is a
clear badge of simulation that renders the whole transaction void. [20]
It is further telling that Policronio never disclosed the existence of the
Deed of Sale to his children. This, coupled with Policronios failure to
exercise any rights pertaining to an owner of the subject lands, leads to the
conclusion that he was aware that the transfer was only made for taxation
purposes and never intended to bind the parties thereto.

As the above factual circumstances remain unrebutted by the Heirs of

Policronio, the factual findings of the RTC, which were affirmed by the CA,
remain binding and conclusive upon this Court.[21]
It is clear that the parties did not intend to be bound at all, and as such,
the Deed of Sale produced no legal effects and did not alter the juridical
situation of the parties. The Deed of Sale is, therefore, void for being
absolutely simulated pursuant to Article 1409 (2) of the Civil Code which
provides:
Art. 1409. The following contracts are inexistent and void from the
beginning:
xxx
(2) Those which are absolutely simulated or fictitious;
xxx

For guidance, the following are the most fundamental characteristics

of void or inexistent contracts:
1) As a general rule, they produce no legal effects whatsoever in
accordance with the principle "quod nullum est nullum
producit effectum."
2) They are not susceptible of ratification.
3) The right to set up the defense of inexistence or absolute
nullity cannot be waived or renounced.
4) The action or defense for the declaration of their inexistence
or absolute nullity is imprescriptible.
5) The inexistence or absolute nullity of a contract cannot be
invoked by a person whose interests are not directly
affected.[22]
Since the Deed of Sale is void, the subject properties were properly
included in the Deed of Extra-Judicial Partition of the estate of Alfonso.

Absence and Inadequacy of Consideration

The second presumption is rebutted by the lack of consideration for
the Deed of Sale.
In their Answer,[23] the Heirs of Alfonso initially argued that the Deed
of Sale was void for lack of consideration, and even granting that there was
consideration, such was inadequate. The Heirs of Policronio counter that the
defenses of absence or inadequacy of consideration are not grounds to render
a contract void.
The Heirs of Policronio contended that under Article 1470 of the Civil
Code, gross inadequacy of the price does not affect a contract of sale, except
as it may indicate a defect in the consent, or that the parties really intended a
donation or some other act or contract. Citing jurisprudence, they argued that
inadequacy of monetary consideration does not render a conveyance
inexistent as liberality may be sufficient cause for a valid contract, whereas
fraud or bad faith may render it either rescissible or voidable, although valid
until annulled.[24] Thus, they argued that if the contract suffers from
inadequate consideration, it remains valid until annulled, and the remedy of
rescission calls for judicial intervention, which remedy the Heirs of Alfonso
failed to take.
It is further argued that even granting that the sale of the subject lands
for a consideration of 2,000.00 was inadequate, absent any evidence of the
fair market value of the land at the time of its sale, it cannot be concluded
that the price at which it was sold was inadequate. [25] As there is nothing in
the records to show that the Heirs of Alfonso supplied the true value of the
land in 1969, the amount of 2,000.00 must thus stand as its saleable value.
On this issue, the Court finds for the Heirs of Alfonso.
For lack of consideration, the Deed of Sale is once again found to be
void. It states that Policronio paid, and Alfonso received, the 2,000.00
purchase price on the date of the signing of the contract:
That I, ALFONSO F. URETA, x x x for and in consideration
of the sum of TWO THOUSAND (2,000.00) PESOS, Philippine

Currency, to me in hand paid by POLICRONIO M. URETA, x x x, do

hereby CEDE, TRANSFER, and CONVEY, by way of absolute sale, x
x x six (6) parcels of land x x x.[26] [Emphasis ours]

Although, on its face, the Deed of Sale appears to be supported by valuable

consideration, the RTC found that there was no money involved in the sale.
[27]
This finding was affirmed by the CA in ruling that the sale is void for
being absolutely simulated. Considering that there is no cogent reason to
deviate from such factual findings, they are binding on this Court.
It is well-settled in a long line of cases that where a deed of sale states that
the purchase price has been paid but in fact has never been paid, the deed of
sale is null and void for lack of consideration.[28] Thus, although the contract
states that the purchase price of 2,000.00 was paid by Policronio to Alfonso
for the subject properties, it has been proven that such was never in fact paid
as there was no money involved. It must, therefore, follow that the Deed of
Sale is void for lack of consideration.
Given that the Deed of Sale is void, it is unnecessary to discuss the
issue on the inadequacy of consideration.
Parol Evidence and Hearsay
The Heirs of Policronio aver that the rules on parol evidence and
hearsay were violated by the CA in ruling that the Deed of Sale was void.
They argued that based on the parol evidence rule, the Heirs of
Alfonso and, specifically, Amparo Castillo, were not in a position to prove
the terms outside of the contract because they were not parties nor
successors-in-interest in the Deed of Sale in question. Thus, it is argued that
the testimony of Amparo Castillo violates the parol evidence rule.
Stemming from the presumption that the Heirs of Alfonso were not
parties to the contract, it is also argued that the parol evidence rule may not
be properly invoked by either party in the litigation against the other, where
at least one of the parties to the suit is not a party or a privy of a party to the
written instrument in question and does not base a claim on the instrument

or assert a right originating in the instrument or the relation established

thereby.[29]
Their arguments are untenable.
The objection against the admission of any evidence must be made at
the proper time, as soon as the grounds therefor become reasonably
apparent, and if not so made, it will be understood to have been waived. In
the case of testimonial evidence, the objection must be made when the
objectionable question is asked or after the answer is given if the
objectionable features become apparent only by reason of such answer.[30] In
this case, the Heirs of Policronio failed to timely object to the testimony of
Amparo Castillo and they are, thus, deemed to have waived the benefit of
the parol evidence rule.
Granting that the Heirs of Policronio timely objected to the testimony
of Amparo Castillo, their argument would still fail.
Section 9 of Rule 130 of the Rules of Court provides:

Section 9. Evidence of written agreements. When the terms of an

agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the
parties and their successors in interest, no evidence of such terms
other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to
the terms of written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true intent
and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
The term "agreement" includes wills.
[Emphasis ours]

Paragraphs (b) and (c) are applicable in the case at bench.

The failure of the Deed of Sale to express the true intent and
agreement of the parties was clearly put in issue in the Answer [31] of the
Heirs of Alfonso to the Complaint. It was alleged that the Deed of Sale was
only made to lessen the payment of estate and inheritance taxes and not
meant to transfer ownership. The exception in paragraph (b) is allowed to
enable the court to ascertain the true intent of the parties, and once the intent
is clear, it shall prevail over what the document appears to be on its face.
[32]
As the true intent of the parties was duly proven in the present case, it
now prevails over what appears on the Deed of Sale.
The validity of the Deed of Sale was also put in issue in the Answer,
and was precisely one of the issues submitted to the RTC for resolution.
[33]
The operation of the parol evidence rule requires the existence of a valid
written agreement. It is, thus, not applicable in a proceeding where the
validity of such agreement is the fact in dispute, such as when a contract
may be void for lack of consideration.[34] Considering that the Deed of Sale
has been shown to be void for being absolutely simulated and for lack of
consideration, the Heirs of Alfonso are not precluded from presenting
evidence to modify, explain or add to the terms of the written agreement.
The Heirs of Policronio must be in a state of confusion in arguing that
the Heirs of Alfonso may not question the Deed of Sale for not being parties
or successors-in-interest therein on the basis that the parol evidence rule may
not be properly invoked in a proceeding or litigation where at least one of
the parties to the suit is not a party or a privy of a party to the written
instrument in question and does not base a claim on the instrument or assert
a right originating in the instrument or the relation established thereby. If
their argument was to be accepted, then the Heirs of Policronio would
themselves be precluded from invoking the parol evidence rule to exclude
the evidence of the Heirs of Alfonso.
Indeed, the applicability of the parol evidence rule requires that the
case be between parties and their successors-in-interest. [35] In this case, both
the Heirs of Alfonso and the Heirs of Policronio are successors-in-interest of
the parties to the Deed of Sale as they claim rights under Alfonso and
Policronio,
respectively. The
parol
evidence
rule
excluding
evidence aliunde, however, still cannot apply because the present case falls
under two exceptions to the rule, as discussed above.

With respect to hearsay, the Heirs of Policronio contended that the

rule on hearsay was violated when the testimony of Amparo Castillo was
given weight in proving that the subject lands were only sold for taxation
purposes as she was a person alien to the contract. Even granting that they
did not object to her testimony during trial, they argued that it should not
have been appreciated by the CA because it had no probative value
whatsoever.[36]
The Court disagrees.
It has indeed been held that hearsay evidence whether objected to or
not cannot be given credence for having no probative value. [37] This
principle, however, has been relaxed in cases where, in addition to the
failure to object to the admissibility of the subject evidence, there were other
pieces of evidence presented or there were other circumstances prevailing to
support the fact in issue. In Top-Weld Manufacturing, Inc. v. ECED S.A.,
[38]
this Court held:
Hearsay evidence alone may be insufficient to establish a fact
in an injunction suit (Parker v. Furlong, 62 P. 490) but, when no
objection is made thereto, it is, like any other evidence, to be
considered and given the importance it deserves. (Smith v.
Delaware & Atlantic Telegraph & Telephone Co., 51 A 464).
Although we should warn of the undesirability of issuing judgments
solely on the basis of the affidavits submitted, where as here, said
affidavits are overwhelming, uncontroverted by competent evidence
and not inherently improbable, we are constrained to uphold the
allegations of the respondents regarding the multifarious violations
of the contracts made by the petitioner.

In the case at bench, there were other prevailing circumstances which

corroborate the testimony of Amparo Castillo. First, the other Deeds of Sale
which were executed in favor of Liberato, Prudencia, and Valeriana on the
same day as that of Policronios were all presented in evidence. Second, all
the properties subject therein were included in the Deed of Extra-Judicial
Partition of the estate of Alfonso. Third, Policronio, during his lifetime,
never exercised acts of ownership over the subject properties (as he never
demanded or took possession of them, never demanded or received the

produce thereof, and never paid real estate taxes thereon). Fourth, Policronio
never informed his children of the sale.
As the Heirs of Policronio failed to controvert the evidence presented,
and to timely object to the testimony of Amparo Castillo, both the RTC and
the CA correctly accorded probative weight to her testimony.
Prior Action Unnecessary
The Heirs of Policronio averred that the Heirs of Alfonso should have
filed an action to declare the sale void prior to executing the Deed of ExtraJudicial Partition. They argued that the sale should enjoy the presumption of
regularity, and until overturned by a court, the Heirs of Alfonso had no
authority to include the land in the inventory of properties of Alfonsos
estate. By doing so, they arrogated upon themselves the power of
invalidating the Deed of Sale which is exclusively vested in a court of law
which, in turn, can rule only upon the observance of due process. Thus, they
contended that prescription, laches, or estoppel have set in to militate against
assailing the validity of the sale.
The Heirs of Policronio are mistaken.
A simulated contract of sale is without any cause or consideration, and
is, therefore, null and void; in such case, no independent action to rescind or
annul the contract is necessary, and it may be treated as non-existent for all
purposes.[39] A void or inexistent contract is one which has no force and
effect from the beginning, as if it has never been entered into, and which
cannot be validated either by time or ratification. A void contract produces
no effect whatsoever either against or in favor of anyone; it does not create,
modify or extinguish the juridical relation to which it refers. [40] Therefore, it
was not necessary for the Heirs of Alfonso to first file an action to declare
the nullity of the Deed of Sale prior to executing the Deed of Extra-Judicial
Partition.
Personality to Question Sale
The Heirs of Policronio contended that the Heirs of Alfonso are not
parties, heirs, or successors-in-interest under the contemplation of law to
clothe them with the personality to question the Deed of Sale. They argued
that under Article 1311 of the Civil Code, contracts take effect only between

the parties, their assigns and heirs. Thus, the genuine character of a contract
which personally binds the parties cannot be put in issue by a person who is
not a party thereto. They posited that the Heirs of Alfonso were not parties to
the contract; neither did they appear to be beneficiaries by way of
assignment or inheritance. Unlike themselves who are direct heirs of
Policronio, the Heirs of Alfonso are not Alfonsos direct heirs. For the Heirs
of Alfonso to qualify as parties, under Article 1311 of the Civil Code, they
must first prove that they are either heirs or assignees. Being neither, they
have no legal standing to question the Deed of Sale.
They further argued that the sale cannot be assailed for being barred
under Article 1421 of the Civil Code which provides that the defense of
illegality of a contract is not available to third persons whose interests are
not directly affected.
Again, the Court disagrees.
Article 1311 and Article 1421 of the Civil Code provide:
Art. 1311. Contracts take effect only between the parties, their
assigns and heirs, x x x
Art. 1421. The defense of illegality of contracts is not available to
third persons whose interests are not directly affected.

The right to set up the nullity of a void or non-existent contract is not

limited to the parties, as in the case of annullable or voidable contracts; it is
extended to third persons who are directly affected by the contract. Thus,
where a contract is absolutely simulated, even third persons who may be
prejudiced thereby may set up its inexistence. [41] The Heirs of Alfonso are
the children of Alfonso, with his deceased children represented by their
children (Alfonsos grandchildren). The Heirs of Alfonso are clearly his heirs
and successors-in-interest and, as such, their interests are directly affected,
thereby giving them the right to question the legality of the Deed of Sale.
Inapplicability of Article 842
The Heirs of Policronio further argued that even assuming that the
Heirs of Alfonso have an interest in the Deed of Sale, they would still be
precluded from questioning its validity. They posited that the Heirs of

Alfonso must first prove that the sale of Alfonsos properties to Policronio
substantially diminished their successional rights or that their legitimes
would be unduly prejudiced, considering that under Article 842 of the Civil
Code, one who has compulsory heirs may dispose of his estate provided that
he does not contravene the provisions of the Civil Code with regard to the
legitime of said heirs. Having failed to do so, they argued that the Heirs of
Alfonso should be precluded from questioning the validity of the Deed of
Sale.
Still, the Court disagrees.
Article 842 of the Civil Code provides:
Art. 842. One who has no compulsory heirs may dispose by will of
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.

This article refers to the principle of freedom of disposition by will.

What is involved in the case at bench is not a disposition by will but by
Deed of Sale. Hence, the Heirs of Alfonso need not first prove that the
disposition substantially diminished their successional rights or unduly
prejudiced their legitimes.
Inapplicability of Article 1412
The Heirs of Policronio contended that even assuming that the
contract was simulated, the Heirs of Alfonso would still be barred from
recovering the properties by reason of Article 1412 of the Civil Code, which
provides that if the act in which the unlawful or forbidden cause does not
constitute a criminal offense, and the fault is both on the contracting parties,
neither may recover what he has given by virtue of the contract or demand
the performance of the others undertaking. As the Heirs of Alfonso alleged
that the purpose of the sale was to avoid the payment of inheritance taxes,
they cannot take from the Heirs of Policronio what had been given to their
father.

On this point, the Court again disagrees.

Article 1412 of the Civil Code is as follows:
Art. 1412. If the act in which the unlawful or forbidden cause
consists does not constitute a criminal offense, the following rules
shall be observed:
(1) When the fault is on the part of both contracting parties, neither
may recover what he has given by virtue of the contract, or
demand the performance of the others undertaking;
(2) When only one of the contracting parties is at fault, he cannot
recover what he has given by reason of the contract, or ask for
the fulfillment of what has been promised him. The other, who
is not at fault, may demand the return of what he has given
without any obligation to comply with his promise.

Article 1412 is not applicable to fictitious or simulated contracts,

because they refer to contracts with an illegal cause or subject-matter.[42] This
article presupposes the existence of a cause, it cannot refer to fictitious or
simulated contracts which are in reality non-existent. [43] As it has been
determined that the Deed of Sale is a simulated contract, the provision
cannot apply to it.
Granting that the Deed of Sale was not simulated, the provision would
still not apply. Since the subject properties were included as properties of
Alfonso in the Deed of Extra-Judicial Partition, they are covered by
corresponding inheritance and estate taxes. Therefore, tax evasion, if at all
present, would not arise, and Article 1412 would again be inapplicable.
Prescription
From the position that the Deed of Sale is valid and not void, the
Heirs of Policronio argued that any question regarding its validity should
have been initiated through judicial process within 10 years from its
notarization in accordance with Article 1144 of the Civil Code. Since 21
years had already elapsed when the Heirs of Alfonso assailed the validity of
the Deed of Sale in 1996, prescription had set in. Furthermore, since the
Heirs of Alfonso did not seek to nullify the tax declarations of Policronio,
they had impliedly acquiesced and given due recognition to the Heirs of

Policronio as the rightful inheritors and should, thus, be barred from laying
claim on the land.
The Heirs of Policronio are mistaken.
Article 1410 of the Civil Code provides:
Art. 1410. The action for the declaration of the inexistence of a
contract does not prescribe.

This is one of the most fundamental characteristics of void or

inexistent contracts.[44]
As the Deed of Sale is a void contract, the action for the declaration of its
nullity, even if filed 21 years after its execution, cannot be barred by
prescription for it is imprescriptible. Furthermore, the right to set up the
defense of inexistence or absolute nullity cannot be waived or renounced.
[45]
Therefore, the Heirs of Alfonso cannot be precluded from setting up the
defense of its inexistence.
Validity of the Deed of Extra-Judicial Partition
The Court now resolves the issue of the validity of the Deed of ExtraJudicial Partition.
Unenforceability
The Heirs of Alfonso argued that the CA was mistaken in annulling the Deed
of Extra-Judicial Partition due to the incapacity of Conrado to give the
consent of his co-heirs for lack of a special power of attorney. They
contended that what was involved was not the capacity to give consent in
behalf of the co-heirs but the authority to represent them. They argue that the
Deed of Extra-Judicial Partition is not a voidable or an annullable contract
under Article 1390 of the Civil Code, but rather, it is an unenforceable or,
more specifically, an unauthorized contract under Articles 1403 (1) and 1317
of the Civil Code. As such, the Deed of Extra-Judicial Partition should not
be annulled but only be rendered unenforceable against the siblings of
Conrado.

They further argued that under Article 1317 of the Civil Code, when
the persons represented without authority have ratified the unauthorized acts,
the contract becomes enforceable and binding. They contended that the
Heirs of Policronio ratified the Deed of Extra-Judicial Partition when
Conrado took possession of one of the parcels of land adjudicated to him
and his siblings, and when another parcel was used as collateral for a loan
entered into by some of the Heirs of Policronio. The Deed of Extra-Judicial
Partition having been ratified and its benefits accepted, the same thus
became enforceable and binding upon them.
The Heirs of Alfonso averred that granting arguendo that Conrado was
not authorized to represent his co-heirs and there was no ratification, the CA
should not have remanded the case to the RTC for partition of Alfonsos
estate. They argued that the CA should not have applied the Civil Code
general provision on contracts, but the special provisions dealing with
succession and partition. They contended that contrary to the ruling of the
CA, the extra-judicial parition was not an act of strict dominion, as it has
been ruled that partition of inherited land is not a conveyance but a
confirmation or ratification of title or right to the land. [46] Therefore, the law
requiring a special power of attorney should not be applied to partitions.
On the other hand, the Heirs of Policronio insisted that the CA
pronouncement on the invalidity of the Deed of Extra-Judicial Partition
should not be disturbed because the subject properties should not have been
included in the estate of Alfonso, and because Conrado lacked the written
authority to represent his siblings. They argued with the CA in ruling that a
special power of attorney was required before Conrado could sign in behalf
of his co-heirs.
The Heirs of Policronio denied that they ratified the Deed of ExtraJudicial Partition. They claimed that there is nothing on record that
establishes that they ratified the partition. Far from doing so, they precisely
questioned its execution by filing a complaint. They further argued that
under Article 1409 (3) of the Civil Code, ratification cannot be invoked to
validate the illegal act of including in the partition those properties which do
not belong to the estate as it provides another mode of acquiring ownership
not sanctioned by law.

Furthermore, the Heirs of Policronio contended that the defenses of

unenforceability, ratification, and preterition are being raised for the first
time on appeal by the Heirs of Alfonso. For having failed to raise them
during the trial, the Heirs of Alfonso should be deemed to have waived their
right to do so.
The Court agrees in part with the Heirs of Alfonso.
To begin, although the defenses of unenforceability, ratification and
preterition were raised by the Heirs of Alfonso for the first time on appeal,
they are concomitant matters which may be taken up. As long as the
questioned items bear relevance and close relation to those specifically
raised, the interest of justice would dictate that they, too, must be considered
and resolved. The rule that only theories raised in the initial proceedings
may be taken up by a party thereto on appeal should refer to independent,
not concomitant matters, to support or oppose the cause of action.[47]
In the RTC, the Heirs of Policronio alleged that Conrados consent was
vitiated by mistake and undue influence, and that he signed the Deed of
Extra-Judicial Partition without the authority or consent of his co-heirs.
The RTC found that Conrados credibility had faltered, and his claims
were rejected by the RTC as gratuitous assertions. On the basis of such, the
RTC ruled that Conrado duly represented his siblings in the Deed of ExtraJudicial Partition.
On the other hand, the CA annulled the Deed of Extra-Judicial
Partition under Article 1390 (1) of the Civil Code, holding that a special
power of attorney was lacking as required under Article 1878 (5) and (15) of
the Civil Code. These articles are as follows:
Art. 1878. Special powers of attorney are necessary in the following
cases:
xxx
(5) To enter into any contract by which the ownership of an
immovable is transmitted or acquired either gratuitously or for a
valuable consideration;
xxx
(15) Any other act of strict dominion.

Art. 1390. The following contracts are voidable or annullable, even

though there may have been no damage to the contracting parties:
(1) Those where one of the parties is incapable of giving consent to a
contract;
(2) Those where the consent is vitiated by mistake, violence,
intimidation, undue influence or fraud.
These contracts are binding, unless they are annulled by a proper
action in court. They are susceptible of ratification.

This Court finds that Article 1878 (5) and (15) is inapplicable to the
case at bench. It has been held in several cases[48] that partition among heirs
is not legally deemed a conveyance of real property resulting in change of
ownership. It is not a transfer of property from one to the other, but rather, it
is a confirmation or ratification of title or right of property that an heir is
renouncing in favor of another heir who accepts and receives the
inheritance. It is merely a designation and segregation of that part which
belongs to each heir. The Deed of Extra-Judicial Partition cannot, therefore,
be considered as an act of strict dominion. Hence, a special power of
attorney is not necessary.
In fact, as between the parties, even an oral partition by the heirs is
valid if no creditors are affected. The requirement of a written memorandum
under the statute of frauds does not apply to partitions effected by the heirs
where no creditors are involved considering that such transaction is not a
conveyance of property resulting in change of ownership but merely a
designation and segregation of that part which belongs to each heir.[49]
Neither is Article 1390 (1) applicable. Article 1390 (1) contemplates
the incapacity of a party to give consent to a contract. What is involved in the
case at bench though is not Conrados incapacity to give consent to the
contract, but rather his lack of authority to do so. Instead, Articles 1403 (1),
1404, and 1317 of the Civil Code find application to the circumstances
prevailing in this case. They are as follows:
Art. 1403. The following contracts are unenforceable, unless they
are ratified:

(1) Those entered into in the name of another person by one who
has been given no authority or legal representation, or who has
acted beyond his powers;
Art. 1404. Unauthorized contracts are governed by Article 1317 and
the principles of agency in Title X of this Book.
Art. 1317. No one may contract in the name of another without
being authorized by the latter, or unless he has by law a right to
represent him.
A contract entered into in the name of another by one who has no
authority or legal representation, or who has acted beyond his
powers, shall be unenforceable, unless it is ratified, expressly or
impliedly, by the person on whose behalf it has been executed,
before it is revoked by the other contracting party.

Such was similarly held in the case of Badillo v. Ferrer:

The Deed of Extrajudicial Partition and Sale is not a voidable
or an annullable contract under Article 1390 of the New Civil Code.
Article 1390 renders a contract voidable if one of the parties is
incapable of giving consent to the contract or if the contracting
partys consent is vitiated by mistake, violence, intimidation, undue
influence or fraud. x x x
The deed of extrajudicial parition and sale is an
unenforceable or, more specifically, an unauthorized contract under
Articles 1403(1) and 1317 of the New Civil Code.[50]

Therefore, Conrados failure to obtain authority from his co-heirs to

sign the Deed of Extra-Judicial Partition in their behalf did not result in his
incapacity to give consent so as to render the contract voidable, but rather, it
rendered the contract valid but unenforceable against Conrados co-heirs for
having been entered into without their authority.
A closer review of the evidence on record, however, will show that the
Deed of Extra-Judicial Partition is not unenforceable but, in fact, valid,
binding and enforceable against all the Heirs of Policronio for having given
their consent to the contract. Their consent to the Deed of Extra-Judicial
Partition has been proven by a preponderance of evidence.

Regarding his alleged vitiated consent due to mistake and undue

influence to the Deed of Extra-Judicial Partition, Conrado testified, to wit:
Q: Mr. Ureta you remember having signed a document entitled
deed of extra judicial partition consisting of 11 pages and which
have previously [been] marked as Exhibit I for the plaintiffs?
A: Yes sir.
Q: Can you recall where did you sign this document?
A: The way I remember I signed that in our house.
Q: And who requested or required you to sign this document?
A: My aunties.
Q: Who in particular if you can recall?
A: Nay Pruding Panadero.
Q: You mean that this document that you signed was brought to
your house by your Auntie Pruding Pa[r]adero [who] requested you
to sign that document?
A: When she first brought that document I did not sign that said
document because I [did] no[t] know the contents of that
document.
Q: How many times did she bring this document to you [until] you
finally signed the document?
A: Perhaps 3 times.
Q: Can you tell the court why you finally signed it?
A: Because the way she explained it to me that the land of my
grandfather will be partitioned.
Q: When you signed this document were your brothers and sisters
who are your co-plaintiffs in this case aware of your act to sign this
document?
A: They do not know.
xxx

Q: After you have signed this document did you inform your
brothers and sisters that you have signed this document?
A: No I did not. [51]
xxx
Q: Now you read the document when it was allegedly brought to
your house by your aunt Pruding Pa[r]adero?
A: I did not read it because as I told her I still want to ask the advise
of my brothers and sisters.
Q: So do I get from you that you have never read the document
itself or any part thereof?
A: I have read the heading.
xxx
Q: And why is it that you did not read all the pages of this document
because I understand that you know also how to read in English?
A: Because the way Nay Pruding explained to me is that the
property of my grandfather will be partitioned that is why I am so
happy.
xxx
Q: You mean to say that after you signed this deed of extra judicial
partition up to the present you never informed them?
A: Perhaps they know already that I have signed and they read
already the document and they have read the document.
Q: My question is different, did you inform them?
A: The document sir? I did not tell them.
Q: Even until now?
A: Until now I did not inform them.[52]

This Court finds no cogent reason to reverse the finding of the RTC
that Conrados explanations were mere gratuitous assertions not entitled to
any probative weight. The RTC found Conrados credibility to have faltered
when he testified that perhaps his siblings were already aware of the Deed of
Extra-Judicial Partition. The RTC was in the best position to judge the
credibility of the witness testimony. The CA also recognized that Conrados
consent was not vitiated by mistake and undue influence as it required a
special power of attorney in order to bind his co-heirs and, as such, the CA
thereby recognized that his signature was binding to him but not with respect
to his co-heirs. Findings of fact of the trial court, particularly when affirmed
by the CA, are binding to this Court.[53]
Furthermore, this Court notes other peculiarities in Conrados
testimony. Despite claims of undue influence, there is no indication that
Conrado was forced to sign by his aunt, Prudencia Paradero. In fact, he
testified that he was happy to sign because his grandfathers estate would be
partitioned. Conrado, thus, clearly understood the document he signed. It is
also worth noting that despite the document being brought to him on three
separate occasions and indicating his intention to inform his siblings about
it, Conrado failed to do so, and still neglected to inform them even after he
had signed the partition. All these circumstances negate his claim of vitiated
consent. Having duly signed the Deed of Extra-Judicial Partition, Conrado is
bound to it. Thus, it is enforceable against him.
Although Conrados co-heirs claimed that they did not authorize Conrado to
sign the Deed of Extra-Judicial Partition in their behalf, several
circumstances militate against their contention.
First, the Deed of Extra-Judicial Partition was executed on April 19, 1989,
and the Heirs of Policronio claim that they only came to know of its
existence onJuly 30, 1995 through an issue of the Aklan Reporter. It is
difficult to believe that Conrado did not inform his siblings about the Deed
of Extra-Judicial Partition or at least broach its subject with them for more
than five years from the time he signed it, especially after indicating in his
testimony that he had intended to do so.
Second, Conrado retained possession of one of the parcels of land
adjudicated to him and his co-heirs in the Deed of Extra-Judicial Partition.

Third, after the execution of the partition on April 19, 1989 and more
than a year before they claimed to have discovered the existence of the Deed
of Extra-Judicial Partition on July 30, 1995, some of the Heirs of Policronio,
namely, Rita Solano, Macario Ureta, Lilia Tayco, and Venancio Ureta
executed on June 1, 1994, a Special Power of Attorney [54] in favor of their
sister Gloria Gonzales, authorizing her to obtain a loan from a bank and to
mortgage one of the parcels of land adjudicated to them in the Deed of ExtraJudicial Partition to secure payment of the loan. They were able to obtain the
loan using the land as collateral, over which a Real Estate Mortgage [55] was
constituted. Both the Special Power of Attorney and the Real Estate
Mortgage were presented in evidence in the RTC, and were not controverted
or denied by the Heirs of Policronio.
Fourth, in the letter dated August 15, 1995, sent by the counsel of the
Heirs of Policronio to the Heirs of Alfonso requesting for amicable
settlement, there was no mention that Conrados consent to the Deed of
Extra-Judicial Partition was vitiated by mistake and undue influence or that
they had never authorized Conrado to represent them or sign the document
on their behalf. It is questionable for such a pertinent detail to have been
omitted. The body of said letter is reproduced hereunder as follows:
Greetings:
Your nephews and nieces, children of your deceased brother
Policronio Ureta, has referred to me for appropriate legal action the
property they inherited from their father consisting of six (6)
parcels of land which is covered by a Deed of Absolute Sale dated
October 25, 1969. These properties ha[ve] already been transferred
to the name of their deceased father immediately after the sale,
machine copy of the said Deed of Sale is hereto attached for your
ready reference.
Lately, however, there was published an Extra-judicial Partition of
the estate of Alfonso Ureta, which to the surprise of my clients
included the properties already sold to their father before the death
of said Alfonso Ureta. This inclusion of their property is erroneous
and illegal because these properties were covered by the Deed of
Absolute Sale in favor of their father Policronio Ureta no longer
form part of the estate of Alfonso Ureta. Since Policronio Ureta has
[sic] died in 1974 yet, these properties have passed by hereditary
succession to his children who are now the true and lawful owners
of the said properties.

My clients are still entitled to a share in the estate of Alfonso Ureta

who is also their grandfather as they have stepped into the shoes of
their deceased father Policronio Ureta. But this estate of Alfonso
Ureta should already exclude the six (6) parcels of land covered by
the Deed of Absolute Sale in favor of Policronio Ureta.
My clients cannot understand why the properties of their late
father [should] be included in the estate of their grandfather and be
divided among his brothers and sisters when said properties should
only be divided among themselves as children of Policronio Ureta.
Since this matter involves very close members of the same family, I
have counseled my clients that an earnest effort towards a
compromise or amicable settlement be first explored before resort
to judicial remedy is pursued. And a compromise or amicable
settlement can only be reached if all the parties meet and discuss
the problem with an open mind. To this end, I am suggesting a
meeting of the parties on September 16, 1995 at 2:00 P.M. at B
Place Restaurant at C. Laserna St., Kalibo, Aklan. It would be best if
the parties can come or be represented by their duly designated
attorney-in-fact together with their lawyers if they so desire so that
the problem can be discussed unemotionally and intelligently.
I would, however, interpret the failure to come to the said meeting
as an indication that the parties are not willing to or interested in
amicable settlement of this matter and as a go signal for me to
resort to legal and/or judicial remedies to protest the rights of my
clients.
Thank you very much.[56]

Based on the foregoing, this Court concludes that the allegation of

Conrados vitiated consent and lack of authority to sign in behalf of his coheirs was a mere afterthought on the part of the Heirs of Policronio. It
appears that the Heirs of Policronio were not only aware of the existence of
the Deed of Extra-Judicial Partition prior to June 30, 1995 but had, in fact,
given Conrado authority to sign in their behalf. They are now estopped from
questioning its legality, and the Deed of Extra-Judicial Partition is valid,
binding, and enforceable against them.
In view of the foregoing, there is no longer a need to discuss the issue
of ratification.
Preterition

The Heirs of Alfonso were of the position that the absence of the
Heirs of Policronio in the partition or the lack of authority of their
representative results, at the very least, in their preterition and not in the
invalidity of the entire deed of partition. Assuming there was actual
preterition, it did not render the Deed of Extra-Judicial Partition
voidable. Citing Article 1104 of the Civil Code, they aver that a partition
made with preterition of any of the compulsory heirs shall not be rescinded,
but the heirs shall be proportionately obliged to pay the share of the person
omitted. Thus, the Deed of Extra-Judicial Partition should not have been
annulled by the CA. Instead, it should have ordered the share of the heirs
omitted to be given to them.
The Heirs of Alfonso also argued that all that remains to be adjudged
is the right of the preterited heirs to represent their father, Policronio, and be
declared entitled to his share. They contend that remand to the RTC is no
longer necessary as the issue is purely legal and can be resolved by the
provisions of the Civil Code for there is no dispute that each of Alfonsos
heirs received their rightful share. Conrado, who received Policronios share,
should then fully account for what he had received to his other co-heirs and
be directed to deliver their share in the inheritance.
These arguments cannot be given credence.
Their posited theory on preterition is no longer viable. It has already
been determined that the Heirs of Policronio gave their consent to the Deed
of Extra-Judicial Partition and they have not been excluded from it.
Nonetheless, even granting that the Heirs of Policronio were denied their
lawful participation in the partition, the argument of the Heirs of Alfonso
would still fail.
Preterition under Article 854 of the Civil Code is as follows:

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.
If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation.

Preterition has been defined as the total omission of a compulsory heir

from the inheritance. It consists in the silence of the testator with regard to a
compulsory heir, omitting him in the testament, either by not mentioning
him at all, or by not giving him anything in the hereditary property but
without expressly disinheriting him, even if he is mentioned in the will in the
latter case.[57] Preterition is thus a concept of testamentary succession and
requires a will. In the case at bench, there is no will involved. Therefore,
preterition cannot apply.
Remand Unnecessary
The Deed of Extra-Judicial Partition is in itself valid for complying
with all the legal requisites, as found by the RTC, to wit:
A persual of the Deed of Extra-judicial Partition would reveal
that all the heirs and children of Alfonso Ureta were represented
therein; that nobody was left out; that all of them received as much
as the others as their shares; that it distributed all the properties of
Alfonso Ureta except a portion of parcel 29 containing an area of
14,000 square meters, more or less, which was expressly reserved;
that Alfonso Ureta, at the time of his death, left no debts; that the
heirs of Policronio Ureta, Sr. were represented by Conrado B.
Ureta; all the parties signed the document, was witnessed and duly
acknowledged before Notary Public Adolfo M. Iligan of Kalibo,
Aklan; that the document expressly stipulated that the heirs to
whom some of the properties were transferred before for taxation
purposes or their children, expressly recognize and acknowledge as
a fact that the properties were transferred only for the purpose of
effective administration and development convenience in the
payment of taxes and, therefore, all instruments conveying or
effecting the transfer of said properties are null and void from the
beginning (Exhs. 1-4, 7-d).[58]

Considering that the Deed of Sale has been found void and the Deed
of Extra-Judicial Partition valid, with the consent of all the Heirs of
Policronio duly given, there is no need to remand the case to the court of
origin for partition.
WHEREFORE, the petition in G.R. No. 165748 is DENIED. The
petition in G.R. No. 165930 is GRANTED. The assailed April 20,

2004 Decision and October 14, 2004 Resolution of the Court of Appeals in
CA-G.R. CV No. 71399, are hereby MODIFIED in this wise:
(1) The Deed of Extra-Judicial Partition, dated April 19, 1989, is
VALID, and
(2) The order to remand the case to the court of origin is
hereby DELETED.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairpersons Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

Designated as additional member of the Third Division per Special Order No. 1028 dated June

21, 2011.
[1]

Penned by Associate Justice Perlita J. Tria Tirona with Associate Justice B.A. Adefuin-De La
Cruz and Associate Justice Arturo D. Brion (now a member of this Court), concurring.
[2]
Penned by Associate Justice Perlita J. Tria Tirona with Associate Justice Ruben T. Reyes and
Associate Justice Arturo D. Brion (now a member of this Court), concurring.
[3]
Rollo (G.R. No. 165748), pp. 75-81.
[4]
Exhibit G, records, p. 349.
[5]
Exhibit 5, id. at 526.
[6]
Exhibit 11, id. at 528.
[7]
Exhibit 6, id. at 527.
[8]
Exhibit 7, id. at 529-539.
[9]
Rollo (G.R. No. 165748), pp. 51-65.
[10]
Manila Banking Corporation v. Silverio, 504 Phil. 17, 25-26 (2005), citing Suntay v. Court of
Appeals, 321 Phil. 809 (1995) and RULES OF COURT, Rule 131, Sec. 3 (r) and (p).
[11]
Gatmaitan v. Court of Appeals, G.R. No. 76500, August 2, 1991, 200 SCRA 38.
[12]
Ascalon v. Court of Appeals, 242 Phil. 265 (1988).
[13]
G.R. No. 163687, March 28, 2006, 485 SCRA 494, 500-501; citing Loyola v. Court of Appeals,
383 Phil. 171 (2000), and Balite v. Lim, 487 Phil. 281 (2004).
[14]
Manila Banking Corporation v. Silverio, supra note 10 at 27, citing Peoples Aircargo and
Warehousing Co., Inc. v. Court of Appeals, 357 Phil. 850 (1998).
[15]
Tongoy v. Court of Appeals, 208 Phil. 95, 113 (1983); citing Rodriguez v. Rodriguez, 127 Phil.
294, 301-302 (1967).
[16]
Lopez v. Lopez, G.R. No. 161925, November 25, 2009, 605 SCRA 358, 367.

[17]

RULES OF COURT, Rule 133, Sec. 1. Preponderance of evidence, how determined. In civil cases, the
party having the burden of proof must establish his case by a preponderance of evidence. In determining
where the preponderance or superior weight of evidence on the issues involved lies, the court may consider
all the facts and circumstance of the case, the witnesses manner of testifying, their intelligence, their means
and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they
testify, the probability of their testimony, their interest or want of interest, and also their personal credibility
so far as the same may legitimately appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the greater number.
[18]
TSN, April 6, 1998, pp. 9-10.
[19]
Exhibit 7-d, records, p. 533.
[20]
Manila Banking Corporation v. Silverio, supra note 10 at 31, citing Suntay v. Court of Appeals,
321 Phil. 809 (1995); Santiago v. Court of Appeals, 343 Phil. 612 (1997); Cruz v. Bancom Finance
Corporation, 429 Phil. 225 (2002); and Ramos v. Heirs of Ramos, 431 Phil. 337 (2002).
[21]
Samala v. Court of Appeals, 467 Phil. 563, 568 (2004).
[22]
Tongoy v. Court of Appeals, supra note 15; Manila Banking Corporation v. Silverio, 504 Phil. 17, 33
(2005).
[23]
Rollo (G.R. No. 165748), p. 69-70.
[24]
Morales Development Company, Inc. v. Court of Appeals, 137 Phil. 307 (1969).
[25]
Acabal v. Acabal, 494 Phil. 528 (2005).
[26]
Exhibit G, records, p. 349.
[27]
Rollo (G.R. No. 165748), p. 79; and TSN, April 6, 1998, p. 9.
[28]
Montecillo v. Reynes, 434 Phil. 456, 469 (2002); citing Ocejo Perez & Co. v. Flores, 40 Phil
921 (1920); Mapalo v. Mapalo, 123 Phil. 979 (1966); Vda. de Catindig v. Roque, 165 Phil. 707
(1976); Rongavilla v. Court of Appeals, 355 Phil. 721 (1998); and Yu Bu Guan v. Ong, 419 Phil. 845 (2001).
[29]
Lechugas v. Court of Appeals, 227 Phil. 310 (1986).
[30]
RULES OF COURT, Rule 132, Sec. 36.
[31]
Rollo (G.R. No. 165748), pp. 66-74.
[32]
Premier Insurance v. Intermediate Appellate Court, 225 Phil. 370, 381 (1986); citing Labasan
v. Lacuesta, 175 Phil. 216 (1978).
[33]
Rollo (G.R No. 165748), p. 77.
[34]
Herrera, Remedial Law, Vol. V, pp. 208-209, [1999].
[35]
Lechugas v. Court of Appeals, 227 Phil. 310, 319 (1986).
[36]
Eugenio v. Court of Appeals, G.R. No. 103737, December 15, 1994, 239 SCRA 207.
[37]
People v. Parungao, 332 Phil. 917, 924 (1996).
[38]
222 Phil. 424, 437 (1985).
[39]
Ocejo Perez & Co. v. Flores, 40 Phil. 921 (1920); De Belen v. Collector of Customs, 46 Phil.
241 (1924); Gallion v. Gayares, 53 Phil. 43 (1929); Escutin v. Escutin, 60 Phil. 922 (1934); Gonzales
v. Trinidad, 67 Phil. 682 (1939); Portugal v. IAC, 242 Phil. 709 (1988).
[40]
Tongoy v. Court of Appeals, supra note 15.
[41]
Arsenal v. Intermediate Appellate Court, 227 Phil. 36, 46-47 (1986); Tolentiono, Civil Code of
the Philippines, Vol. IV, p. 643, [2002].
[42]
Sta. Romana v. Imperio, 122 Phil. 1001, 1007 (1965); Tolentino, Civil Code of the Philippines,
Vol. IV, p. 634, (2002).
[43]
Gonzales v. Trinidad, 67 Phil. 682, 683-684 (1939); Castro v. Escutin, 179 Phil. 277, 284
(1979).
[44]
Tongoy v. Court of Appeals, supra note 15; Manila Banking Corporation v. Silverio, 504 Phil. 17, 33
(2005).
[45]
Id.
[46]
Barcelona v. Barcelona, 100 Phil 251, 255 (1956).
[47]
Borbon II v. Servicewide Specialists, Inc., 328 Phil. 150, 160 (1996).
[48]
Barcelona v. Barcelona, 100 Phil. 251, 255 (1956); Maestrado v. Court of Appeals, 384 Phil.
418, 432 (2000); Castro v. Miat, 445 Phil. 282 297-298 (2003), citing Pada-Kilario v. Court of Appeals,
379 Phil. 515 (2000).
[49]
Maestrado v. Court of Appeals, 384 Phil. 418, 432 (2000).
[50]
236 Phil. 438, 447-448 (1987).
[51]
TSN, October 1, 1997, pp. 4-6.

[52]

Id. at 8-11.
Philippine Rabbit Bus Lines Inc. v. Macalinao, 491 Phil. 249, 255 (2005).
[54]
Exhibit 2, records, p. 524.
[55]
Exhibit 3, id. at 525.
[56]
Exhibit A, id. at 335-336.
[57]
Neri v. Akutin, 72 Phil. 322, 325 (1914); Maninang v. Court of Appeals, 199 Phil. 640, 647
[53]

(1982).
[58]

Rollo (G.R. No. 165748), p. 80.

Aznar v. Duncan, 17 SCRA 590

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24365

June 30, 1966

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

deceased.
ADOLFO C. AZNAR, executor and appellee,
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.
MARIA HELEN CHRISTENSEN, oppositor and appellee.
J. Salonga and L. M. Abellera for oppositor and appellee.
Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.
MAKALINTAL, J.:
Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a
will executed on March 5, 1951. The will was admitted to probate by the Court of First
Instance of Davao in its decision of February 28, 1954. In that same decision the court
declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was
a natural child of the deceased. The declaration was appealed to this Court, and was
affirmed in its decision of February 14, 1958 (G.R. No. L-11484).
In another incident relative to the partition of the deceased's estate, the trial court approved
the project submitted by the executor in accordance with the provisions of the will, which said
court found to be valid under the law of California. Helen Garcia appealed from the order of
approval, and this Court, on January 31, 1963, reversed the same on the ground that the
validity of the provisions of the will should be governed by Philippine law, and returned the
case to the lower court with instructions that the partition be made as provided by said law
(G.R. No. L-16749).
On October 29, 1964, the Court of First Instance of Davao issued an order approving the
project of partition submitted by the executor, dated June 30, 1964, wherein the properties of
the estate were divided equally between Maria Lucy Christensen Duncan (named in the will
as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan),

whom the testator had expressly recognized in his will as his daughter (natural) and Helen
Garcia, who had been judicially declared as such after his death. The said order was based
on the proposition that since Helen Garcia had been preterited in the will the institution of
Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the
deceased had died intestate, saving only the legacies left in favor of certain other persons,
which legacies have been duly approved by the lower court and distributed to the legatees.
The case is once more before us on appeal, this time by Lucy Duncan, on the sole question
of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia
in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be
merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to
1/4 of the entire estate.
The will of Edward E. Christensen contains, among others, the following clauses which are
pertinent to the issue in this case:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN
(Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years
ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California,
U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except
my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx

xxx

xxx

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

xxx

xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as
aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character, and wheresoever situated,
of which I may be possessed at my death and which may have come to me from any
source whatsoever, during her lifetime; Provided, however, that should the said
MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living
issue, then and in that event, the life interest herein given shall terminate, and if so
terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY
CHRISTENSEN DANEY the rest, remainder and residue of my property with the
same force and effect as if I had originally so given, devised and bequeathed it to
her; and provided, further, that should the said MARIA LUCY CHRISTENSEN

DANEY die without living issue, then, and in that event, I give, devise and bequeath
all the rest, remainder and residue of my property one-half (1/2) to my well-beloved
sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth
Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my
deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of
Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan
Beach, California, U.S.A., share and share alike, the share of any of the three above
named who may predecease me, to go in equal parts to the descendants of the
deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton
die before my own decease, then, and in that event, the share of my estate devised
to her herein I give, devise and bequeath to her children, Elizabeth Borton de
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
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

xxx

xxx

xxx

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

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de
ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la
legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la que
le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla
general, y las consecuencias del que brantamiento de esta regla se determina en los
articulos 814 y 815. (6 Manresa p. 418.)
Again Sanchez Roman:
QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no consigna de modo
expreso esta circunstancia de que la pretericion o falta de mencion e institucion o
disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce
de no hacer distincion o salvedad alguna empleandola en terminos generales; pero
sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el
heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la
legitima que la corresponda, podria pedir el complemento de la misma, lo cual ya no
son el caso ni los efectos de la pretericion, que anula la institucion, sino
simplemente los del suplemento necesario para cubrir su legitima. (Sanchez Roman
Tomo VI, Vol. 2.0 p. 1133.)
The question may be posed: In order that the right of a forced heir may be limited only to the
completion of his legitime (instead of the annulment of the institution of heirs) is it necessary
that what has been left to him in the will "by any title," as by legacy, be granted to him in his
capacity as heir, that is, a titulo de heredero? In other words, should he be recognized or
referred to in the will as heir? This question is pertinent because in the will of the deceased
Edward E. Christensen Helen Garcia is not mentioned as an heir indeed her status as
such is denied but is given a legacy of P3,600.00.
While the classical view, pursuant to the Roman law, gave an affirmative answer to the
question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo
VI, Vol. 2.0 p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de
1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given
above, comments as follows:
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo en
esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna
racional modificacion. Concedian aquellos precedentes legales al heredero forzoso,
a quien no se le dejaba por titulo de tal el completo de su legitima, la accion para
invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante
el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como
donotario, por otro titulo que no fuera el de heredero, sino al honor de que se le
privaba no dandole este caracter, y solo cuando era instituido heredero en parte o
cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el
ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las
otras instituciones de heredero o demas disposiciones contenidas en el testamento.
El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que
le inspira cual es la de que se complete la legitima del heredero forzoso, a quien por
cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan
solo el derecho de pedir el complemento de la misma sin necesidad de que se

anulen las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas

conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la
sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere
dejado de menos de la legitima al heredero forzoso, lo haya sido en el testamento, o
sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero
forzoso a quien el testador haya dejado, etc., esto es por titulo de legado o
donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo
VI, Vol. 2.0 p. 937.)
Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16,
1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator
left to one who was a forced heir a legacy worth less than the legitime, but without referring
to the legatee as an heir or even as a relative, and willed the rest of the estate to other
persons. It was held that Article 815 applied, and the heir could not ask that the institution of
heirs be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.)
The foregoing solution is indeed more in consonance with the expressed wishes of the
testator in the present case as may be gathered very clearly from the provisions of his will.
He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a
legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such
status is no reason to assume that had the judicial declaration come during his lifetime his
subjective attitude towards her would have undergone any change and that he would have
willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by
him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in
support of their theory of preterition. That decision is not here applicable, because it referred
to a will where "the testator left all his property by universal title to the children by his second
marriage, and (that) without expressly disinheriting the children by his first marriage, he left
nothing to them or, at least, some of them." In the case at bar the testator did not entirely
omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.
The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in
the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said
estate descended to Helen Garcia as her legitime. Since she became the owner of her share
as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to
a corresponding portion of all the fruits or increments thereof subsequently accruing. These
include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all
such dividends pertain to her according to the terms of the will cannot be sustained, for it
would in effect impair the right of ownership of Helen Garcia with respect to her legitime.
One point deserves to be here mentioned, although no reference to it has been made in the
brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to
Lucy Duncan in the event she should die without living issue. This substitution results in
effect from the fact that under paragraph 12 of the will she is entitled only to the income from
said estate, unless prior to her decease she should have living issue, in which event she
would inherit in full ownership; otherwise the property will go to the other relatives of the
testator named in the will. Without deciding this, point, since it is not one of the issues raised
before us, we might call attention to the limitations imposed by law upon this kind of
substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil
Code), which means that the legitime must descend to the heir concerned in fee simple.

Wherefore, the order of the trial court dated October 29, 1964, approving the project of
partition as submitted by the executor-appellee, is hereby set aside; and the case is
remanded with instructions to partition the hereditary estate anew as indicated in this
decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more
than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the
hereditary estate, after deducting all debts and charges, which shall not include those
imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs
against appellees in this instance.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and
Sanchez, JJ., concur.
RESOLUTION
July 30, 1967
MAKALINTAL, J.:
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to
an alleged oversight and asking for the corresponding correction, in the last paragraph
before the dispositive part of our decision, which reads as follows:
One point deserves to be here mentioned, although no reference to it has been made in the
brief for oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed
to Lucy Duncan in the event she should die without living issue. This substitution results in
effect from the fact that under paragraph 12 of the will she is entitled only to the income from
said estate, unless prior to her decease she should have living issue, in which event she
would inherit in full ownership; otherwise the property will go to the other relatives of the
testator named in the will. Without deciding this point, since it is not one of the issues raised
before us, we might call attention to the limitations imposed by law upon this kind of
substitution, particularly that which says that it can never burden the legitime (Art. 864, Civil
Code), which means that the legitime must descend to the heir concerned in fee simple.
(Decision, June 30, 1966, pages 14-15; emphasis ours).
Oppositor-appellant points out that the matter of substitution of heirs was taken up and
discussed in her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but
the reference to and discussion of the rights of the substitute heirs (called American heirs in
the brief) appears to be merely for the purpose of refuting the theory advanced by appellees
and not for the purpose of having the rights of said heirs defined in so far as, under the terms
of the will, they may affect the legitime of oppositor-appellant. This point of course was not
and could hardly have been squarely raised as an issue inasmuch as the substitute heirs are
not parties in this case. We have nevertheless called attention "to the limitations imposed by
law upon this kind of substitution," because in the brief for oppositor-appellant, at page 45,
she makes the conclusion "that the Last Will and Testament of Edward E. Christensen are
valid under Philippine Law and must be given full force and effect;" and to give them full
force and effect would precisely affect the legitime of oppositor-appellant.
Wherefore, the last paragraph before the dispositive part of our decision quoted above is
amended by eliminating the following phrase in the first sentence: "although no reference to
it has been made in the brief for oppositor-appellant."

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ.,
concur.
Regala and Castro, JJ., took no part.

Nuguid v. Nuguid, 17 SCRA 449

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico,
Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be admitted to probate and that
letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father
and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as
universal heir of the deceased, oppositors who are compulsory heirs of the deceased in
the direct ascending line were illegally preterited and that in consequence the institution is
void.
On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.

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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 38B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November,
nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of
the Civil Code of Spain of 1889, which is similarly herein copied, thus

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator,
shall void the institution of heir; but the legacies and betterments 4 shall be valid, in so
far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra
siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se
le deshereda expresamente ni se le asigna parte alguna de los bienes, resultando
privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento
omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda
la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la
omision sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343,
204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50
38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq.
132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to
nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d.
771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents,
now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of
them: They thus received nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre la institucion de heredero, dando
caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of
the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir
nothing more. No specific legacies or bequests are therein provided for. It is in this posture
that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says
Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en
todo o en parte? No se 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 no
aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y
eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho
positivo, reputar como legatario a un heredero cuya institucion fuese anulada con
pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del
Derecho constituyente, hay razon para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el legislador quiere
establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious".
Legacies and devises merit consideration only when they are so expressly given as such in
a will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will
void because of preterition would give the heir so instituted a share in the inheritance. As
to him, the will is inexistent. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the nullified institution

of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854,
states that preterition annuls the institution of the heir "totalmente por la pretericion"; but
added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras
disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire inheritance including "la porcion
libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than
one of preterition". 15From this, petitioner draws the conclusion that Article 854 "does not
apply to the case at bar". This argument fails to appreciate the distinction between pretention
and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited."16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in the legitime for a
cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima
constituye ladesheredacion. 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 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.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and
Zaldivar, JJ., concur.
Footnotes
Castaeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc., et al., 5 Phil.
436, 440-441; Limjuco vs. Ganara, 11 Phil. 393, 394-395; Montaano vs. Suesa, 14
Phil. 676, 679; Riera vs. Palmorali, et al., 40 Phil. 105, 116; In re Estate of Johnson,
39 Phil. 156, 174; Palacios vs. Palacios, 58 O.G. No. 2, 220, 221; Teotico vs. Del Val,
etc., L-18753, March 26, 1965.
1

Section 13, Rule 76 of the Rules of Court.

Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil. 517, 522.

Betterments are eliminated in the present Civil Code. II Padilla, Civil Code
Annotated, p. 1077.
4

VI Manresa, Commentarios al Codigo Civil Espaol, 7th Edition, (1951), p. 424.

Words & Phrases, Vol. 3A, Permanent Ed., p. 3.

Id., p. 4.

Black's Law Dictionary, 4th ed., p. 117.

Manresa, id., p. 426.

10

Manresa, id., pp. 431-432.

VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o, p. 1140.

11

VI Sanchez Roman, id., p. 1138. This is also cited in the Neri case, 74 Phil. 192193.
12

Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled "An Outline
of Philippine Civil Law", 1956 ed., Vol. III, p. 8; citing Gil vs. Murciano, L3362, March 1, 1951, likewise opined that "the right to make a will is
statutory, not a natural right, and must be subordinate to law and public
policy".
13

Sanchez Roman, id., p. 1141.

14

Manresa, id., p. 434.

15

Petitioner's brief, p. 15.

16

Neri, et al. vs. Akutin, et al., supra, 72 Phil., at p. 325.

17

Justice J.B.L. Reyes and Judge R.C. Puno, id., p. 106.

Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107, speaking of the
requisites of a valid disinheritance, confirm the theory that disinheritance "must
be express (not implied) (Art. 918 ; otherwise there is preterition".
18

19

Sanchez Roman, id., p. 1131.

20

Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-752.

21

III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172.

22

Now one-half, Articles 888 and 889, Civil Code.

23

Manresa, id., p. 430.

24

Petitioner's brief, p. 13.

25

Neri, et al. vs. Akutin, et al., 74 Phil. pp. 191-192.

Arts. 817 and 851, Civil Code of Spain of 1889, referred to in the opinion
above, are now Arts. 907 and 918 of the present Civil Code.

Reyes v. Barreto-Datu, 19 SCRA 85

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17818

January 25, 1967

TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all
surnamed Reyes y Barretto,plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No.
1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver
to the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his
deceasea wife under the terms of the will of the late Bibiano Barretto, consisting of lots in
Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the barrio of
San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734
of the Land Records of this Province, being the share of plaintiff's wards as minor
heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said
minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they
acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan,
covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285,
6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of
these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros
Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto
and his nephew 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 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 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 fouryear period of limitation started to run, to expire in 1948 (Section 43, Act. 190). In fact,
conceding that Milagros only became aware of the true facts in 1946 (Appellee's Brief, p.
27), her action still became extinct in 1950. Clearly, therefore, the action was already barred
when in August 31, 1956 she filed her counterclaim in this case contesting the decree of
distribution of Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced evidence that
appellant Tirso Reyes had induced her to delay filing action by verbally promising to
reconvey the properties received by his deceased wife, Salud. There is no reliable evidence
of the alleged promise, which rests 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.
Footnotes
1

Reyes vs. Barretto, G.R. No. L-5831, Jan. 31, 1956.

Escuin v. Escuin, 11 Phil. 332

EN BANC
[G.R. No. 4359. September 24, 1908. ]
EMILIO ESCUIN Y BATAC, Plaintiff-Appellee, v. FRANCISCO ESCUIN, ET AL., Defendants.
JULIA BATAC, Appellant.
Rosado, Sanz & Opiso for Appellant.
Kincaid & Hurd for Appellee.
SYLLABUS
1. ESTATES; APPEAL FROM COMMISSIONERS REPORT; PARTITION. While the appeal interposed
against the report and opinion of the commissioners for the appraisal of an estate is still pending in
the lower court, the partition of the hereditary funds can not be ordered, notwithstanding the fact
that the same consist of ready money, because the amount of the estate to be divided, in order to
comply with the law and the will of the testator, is not yet determined. Only after payment of all the
obligations of the estate can the net amount divisible among the heirs be known.
2. ID.; ID.; TRIAL IN FIRST INSTANCE COURT; APPEAL. The claim presented by an appeal
interpossed against the opinion of the commissioners for the appraisal of an estate, must be tried in
the same manner as any other action in the Court of First Instance, from whose judgment appeal
may be taken to this court by means of the corresponding bill of exceptions. (Secs. 776, 777, Code
of Civil Procedure.)
3. ID.; RIGHTS OF NATURAL CHILD DULY ACKNOWLEDGED. If a natural father dies under a duly

executed will, his recognized natural son who survives him, being his general heir, is only entitled to
one-third of his estate, which amount constitutes his legal portion, but, if the natural father dies
intestate, his natural recognized son is entitled to the entire estate. (Arts. 807, 842, 939, Civil
Code.)
4. ID.; TESTATE AND INTESTATE SUCCESSION. A person may die partly testate and partly
intestate.
5. ID.; NATURAL FATHERS RIGHTS; RIGHTS OF NATURAL CHILD. The natural father has the right
to freely dispose by will of two-thirds of his estate, and in case he exceeds this right by dispossing
of the legal portion pertaining to his natural recognized son, or by overlooking the right of the latter
under the will, the designation of heirs or the testamentary provision relative to the legal portion of
the general heir, shall be held void; nevertheless, the other testamentary provisions referring to
legacies and gifts shall be considered valid, in so far as they are not illegal and do not impair the
legal portion of the recognized natural son, who is the general heir of the testator.

DECISION

TORRES, J. :

On the 19th of January, 1899, Emilio Antonio Escuin de los Santos executed a will before a notary
public of Sevilla, Spain, stating therein that he was a native of Cavite, the son of Francisco Escuin
and Eugenia de los Santos, the latter being deceased; that he was married about six months
previously to Maria Teresa Ponce de Leon, and that he had no lawful descendants; the testator,
however, stated in clause three of his will, that in case he had a duly registered successor, his child
would be his sole and universal heir; but that if, as would probably be the case, there should be no
such heir, then in clause four he named his said father Francisco Escuin, and his wife Maria Teresa
Ponce de Leon his universal heirs, they to divide the estate in equal shares between them.
The testator died on the 20th of January, 1899, as certified to by the municipal court of Magdalena,
Sevilla, on the 20th of March, 1900.
Upon the will having been admitted to probate, commissioners were appointed to consider claims
against the estate, and, according to a report presented to the Court of First Instance on the 20th of
June, 1907, one claim was allowed amounting to 3,696.50 pesetas.
On the 10th and 12th of July, 1907, the attorney for the widow, Ponce de Leon, and the attorneys
who represented the guardian of the minor, Emilio Escuin y Batac appealed to the Court of First
Instance from the findings of the aforesaid commissioners. Matters stood thus, and without there
appearing any decision of the court as to the appeals, the attorney for the administrator, by a
writing dated the 3d of September, following, moved for the approval of the proposed partition of
the estate provided for by the court; by the first additional request (otrosi) he asked that the
remuneration for the services of the administrator of the estate be fixed, and that he be authorized
to draw such amount from the funds of the estate; and by a second additional request he asked
that the accounts made up on the 31st of August, previous, be approved.
It appears in the proposed partition of the 3d of September, 1906, that, according to the opinion of
the administrator by whom it was signed and the result of the proceedings, the property left by the
testator, in accordance with the accounts passed upon by the court, amounted to P8,268.02
From said sum the following must be
deducted:

chanrob1es virtual 1aw library

The credit above alluded to admitted

by the commissioners P1,321.40

10 per cent remuneration due to

the administrator P826.80
All legal expenses paid and
approved P1,105.01
________
P3,253.21
_________
Deducting this amount from the funds
of the estate, there remains a balance
of 5,014.81
That the said credit of P1,321.40, equivalent to 3,696.50 pesetas, allowed by the commissioners, is
the only claim presented within the legal term against the estate; that Francisco Escuin, the father
of the testator, his wife or widow, Teresa Ponce de Leon, and his natural child, the minor Emilio
Escuin y Batac, represented by his mother and guardian Julia Batac, are entitled to the succession;
that, by setting aside one-third of the estate in favor of the natural son recognized in accordance
with article 842 of the Civil Code, there only remains the question as to how the remaining twothirds of the inheritance shall be bestowed, taking into account the directions of the testator in his
will; that the same does not disclose that he had left any child by his wife; that the latter, as the
widow of the testator, besides being a designated heir entitled to one-half of the hereditary funds, is
entitled to the usufruct of the portion fixed by the law, and that the funds to be apportioned are
composed wholly of cash or ready money.
On these grounds the partition and adjudication was proceeded with of the sum of P5,014.81 into
three shares of P1,671.60 to each one of the parties in interest, that is, the natural son, Emilio
Escuin y Batac, in full control as general heir; the widow, Teresa Ponce de Leon, as legatee of onehalf of the two-thirds of the funds of free disposition; and the said widow the usufruct of the other
half of the aforesaid two-thirds of free disposition, the bare ownership of the last third held in
usufruct by the widow being adjudicated to Francisco Escuin, as legatee taking into account the
provisions of article 817 of the Civil Code upon making the division.
On the 12th of September, 1906, the representative of the minor natural child of the testator
objected in writing to the partition proposed by the administrator, and for the reasons he set forth
asked that the same be disapproved, and that in lieu thereof the entire estate be adjudicated to
Emilio Escuin y Batac, the said minor.
Upon a hearing for the approval of the said proposed partition, the representative of the minor
presented as evidence a certified copy of the complaint, the answer, and the final judgment
rendered in civil case No. 3210 of the Court of First Instance.
It appears from the said certified proceedings that the representative of the minor, as plaintiff
therein, asked on the 12th of January, 1905, that an allowance be granted to him for subsistence for
account of the estate of the late testator, Emilio Escuin de los Santos, and that the same be paid
him monthly in advance; that judgment be entered declaring that the minor, Emilio Escuin y Batac,
is a natural child of the testator; that the said minor, as the only natural son of the same is his
general heir; that it be held that the said testator had died without either lawful ascendants or
descendants; that the designation of heirs made under his above-mentioned will be declared null
and void; and that the defendants be sentenced to pay the costs in case they did not conform to the
complaint, with any further remedy that the court might consider just and equitable.
The administrator, Ricardo Summers, in answer to the complaint denied all and every one of the
facts alleged in all and every one of its paragraphs.

On the 30th of September, 1905, the court below found that Emilio Escuin y Batac was the
recognized natural child of the late Emilio Escuin de los Santos, had by Julia Batac; that the testator
was also the natural son of the defendant Francisco Escuin and Eugenia de los Santos, and was
recognized by his father; and that the plaintiff minor, Emilio Escuin y Batac, is one of the heirs of
the late testator.
By an order of the lower court dated the 30th of October, 1906, in view of the accounts and
proposal of partition presented by the administrator of the estate, the judge below expressed an
opinion that a natural child is only entitled to one-fourth of the hereditary property, the clause in the
will being annulled only in so far as the amount to be divided should be reduced, taking into account
the share due to the natural son and the right of the father and the widow of the testator, each to
one-half of the remainder of the property of the estate. The court approved the account presented,
but disapproved the project of partition of the hereditary property that was objected to by one of
the parties in interest. Counsel for the minor Emilio Escuin y Batac excepted to the above
resolution; a copy of the proceedings was submitted to this court together with the appeal that was
interposed.
On the 10th of July, 1907, the representatives of the administrator, and of the minor, Emilio Escuin y
Batac, respectively, stated in writing to the lower court that, in view of the fact that the order of
October 30, 1906, did not constitute a final judgment of partition (since the said proposal having
been rejected, another partition should be effected by commissioners) the court was requested to
appoint commissioners to present a new project of partition in substitution for the one presented by
the administrator, the new proposal to be submitted to the court for approval.
On the 22d of August, the attorney for the administrator filed a written request for the appointment
of said commissioners as stated above, and further requested that the remuneration of the
petitioner for his services as administrator be fixed by the court, and that he be authorized to draw
from the funds of the estate such sum as might thus be assigned to him.
On the 24th day of the said month of August, the court below issued an order with respect to the
foregoing requests and held that, for the reasons stated in the order, the appointment of
commissioners for the mere propose of determining what each one of the heirs should receive in
accordance with the order of the 30th of October, 1906, was not necessary, inasmuch as the
property of the estate consisted of ready money, and the administrator was thereby authorized to
distribute the funds among the heirs in the amount stated in the said order. From this decision the
representative of the minor Emilio Escuin y Batac took exception, and to this effect presented a bill
of errors together with a copy of the proceedings for review on appeal.
While the appeal s interposed against the report and resolution of the commissioners were still
pending in the lower court, the partition of the hereditary funds could not be ordered,
notwithstanding the fact that the same consisted of ready money, because the amount of the estate
subject to division had not yet been determined in order to comply with the law and the will of the
testator.
Until all the known creditors and the legatees have been paid, it shall be understood that the estate
is under administration, says article 1026 of the Civil Code, and in conformity with this legal
provision the supreme tribunal has established the doctrine that "only after payment of all the
obligations of the estate can the net amount divisible among the heirs be known." (Decision of
March 2, 1896.)
Section 753 of the Code of Civil Procedure confirms the provision of the Civil Code and the legal
doctrine mentioned above, inasmuch as it provides that, after payment of the debts, funeral
charges, and expenses of administration, and the allowances for the expense of maintenance of the
family of the deceased, the court shall assign the residue of the estate to the persons entitled to the
same, naming the persons and proportions or parts to which each is entitled, etc.
As to the aforesaid appeals from the resolution of the commissioners, section 776 of the Code of
Civil Procedure provides that:
jgc:chanrobles.com .ph

"Upon the lodging of such appeal with the clerk, the disputed claim shall stand for trial in the same
manner as any other action in the Court of First Instance, the creditor being deemed to be the
plaintiff, and the estate the defendant, and pleadings as in other actions shall be filed."
cralaw virtua1aw library

So that by reason of the claims made by the creditor of the estate of Emilio Escuin de los Santos
and by her natural son, duly recognized by his father, an ordinary action should have been brought
before the Court of First Instance, from whose judgment appeal may be taken to this court by
means of the corresponding bill of exceptions under the provisions of section 777 of the Code of
Civil Procedure; and while the ultimate decision in the matter of the said claims against the
resolution of the commissioners has not become final, and until all the obligations of the estate have
been paid, there can really be no inheritance, nor can it be distributed among the persons
interested therein according to the will of the testator, or under the provisions of the law.
The foregoing refers to the first error assigned in the certified copy of the proceedings and in the
brief of the representative of the minor Escuin y Batac, and also to the questions of the form of
procedure.
With respect to the questions which form the basis of this litigation and refer to the second
assignment of errors, it should be noted that the late testator did not leave any legitimate
descendants or ascendants, but did leave a recognized natural child, the appellant minor, and a
widow; that the said minor, Emilio Escuin y Batac, is the general heir of his natural father, the said
testator, who recognized him while living (art. 807, Civil Code), and in the present case is entitled to
one-third of his estate, which amount constitutes the legal portion of a natural child (art. 842 of the
said code); and for the reason that the minor was ignored by his natural father in his will, the
designation of heirs made therein was, as a matter of fact annulled by force of law, in so far as the
legal portion of the said minor was thereby impaired. Legacies and betterments shall be valid, in so
far as they are not illegal, for the reason that a testator can not deprive the heirs of their legal
portions, except in the cases expressly indicated by law. (Arts. 763, 813, 814, Civil Code.)
As has been seen, the testator wished to dispose of his property in his will, designating as heirs his
natural father, Francisco Escuin, and his wife, Maria Teresa Ponce de Leon, altogether ignoring his
recognized natural child who is his general heir. In view thereof, and for the reason that he
exceeded his rights, the said designation of heirs became void in so far as it impaired the right of
his general heir and deprived him of his legal portion; the will, however, is valid with respect to the
two-thirds of the property which the testator could freely dispose of. (Arts. 763, 764, 806, 813, 842,
Civil Code.)
Notwithstanding the fact that the designation of heirs is annulled and that the law recognizes the
title of the minor, Escuin y Batac, to one-third of the property of his natural father, as his lawful and
general heir, it is not proper to assert that the late Emilio Escuin de los Santos died intestate in
order to establish the conclusion that his said natural recognized child is entitled to succeed to the
entire estate under the provisions of article 939 of the Civil Code, inasmuch as in accordance with
the law a citizen may die partly testate and partly intestate (art. 764, Civil Code). It is clear and
unquestionable that it was the wish of the testator to favor his natural father and his wife with
certain portions of his property which, under the law, he had a right to dispose of by will, as he has
done, provided the legal portion of his general heir was not thereby impaired, the two former
persons being considered as legatees under the will.
The above-mentioned will is neither null, void, nor illegal in so far as the testator leaves two-thirds
of his property to his father and wife; testamentary provisions impairing the legal portion of a
general heir shall be reduced in so far as they are illegal or excessive. (Art. 817, Civil Code.) The
partition of the property of the said testator shall be proceeded with in accordance with the
foregoing legal bases.
The record does not show that the decision of the commissioners became final or was consented to
by the parties in interest, or that this point was alleged and discussed in the first instance;
therefore, such circumstance as alleged by the appellee can not now be considered.
By virtue of the foregoing considerations it is our opinion that the orders of the court below, of
October 30, 1906, and August 24, 1907, should be reversed, and upon receipt of a certified copy of
this decision the court below shall take action in accordance with the law and the terms herein
contained with respect to the claims and appeals from the resolutions of the commissioners pending
judicial decision. So ordered.
Arellano, C.J., Mapa, Carson, Willard and Tracey, JJ., concur.

Balanay v. Martinez, 64 SCRA 452

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY,
JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch
VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.

AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of
Davao dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria
Julian, converting the testate proceeding into an intestate proceeding and ordering the
issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents
of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao
City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by
their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo,
Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate
of his mother's notarial will dated September 5, 1970 which is written in English. In that will
Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal
lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited
from her father (par. III), and (c) that it was her desire that her properties should not be
divided among her heirs during her husband's lifetime and that their legitimes should be
satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two
years old in 1973) her paraphernal lands and all the conjugal lands (which she described as
"my properties") should be divided and distributed in the manner set forth in that part of her
will. She devised and partitioned the conjugal lands as if they were all owned by her. She
disposed of in the will her husband's one half share of the conjugal assets. *

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of
lack of testamentary capacity, undue influence, preterition of the husband and alleged
improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr.
should collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay,
Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and
affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an
instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights"
wherein he manifested that out of respect for his wife's will he "waived and renounced' his
hereditary rights in her estate in favor of their six children. In that same instrument he
confirmed the agreement, which he and his wife had perfected before her death, that their
conjugal properties would be partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973
"denied" the opposition and reset for hearing the probate of the will. It gave effect to the
affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed
its branch clerk of court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the
grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of
the conjugal lots and (b) that she could not partition the conjugal estate by allocating portions
of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo
Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to
be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed
a motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of
Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In
that motion Montaa claimed to be the lawyer not only of the petitioner but also of Felix
Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the conjugal assets
or allegedly effected a compromise of future legitimes. He prayed that the probate of the will
be withdrawn and that the proceeding be converted into an intestate proceeding. In another
motion of the same date he asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments
dated October 15, 1973 manifested their conformity with the motion for the issuance of a
notice to creditors. They prayed that the will be declared void for being contrary to law and
that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a
notice to creditors was in order since the parties had agreed on that point. It adopted the
view of Attys. Montaa and Guyo that the will was void. So, in its order of February 28, 1974
it dismissed the petition for the probate, converted the testate proceeding into an intestate
proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for
hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18
and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on
May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its
publication be held in abeyance.

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated
April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974
on the ground that Atty. Montaa had no authority to withdraw the petition for the allowance
of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to
Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and
Emilia B. Pabaonon, wherein they terminated Montaa's services and informed him that his
withdrawal of the petition for the probate of the will was without their consent and was
contrary to their repeated reminder to him that their mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower
court denied the motion in its order of June 29, 1974. It clarified that it declared the will void
on the basis of its own independent assessment of its provisions and not because of Atty.
Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the
will, before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which the
lower court assumed to have been filed with the petitioner's authorization), the trial court
acted correctly in passing upon the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the
issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs.
Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April
30, 1965, 13 SCRA 693).
1wph1.t

But the probate court erred in declaring, in its order of February 28, 1974 that the will was
void and in converting the testate proceeding into an intestate proceeding notwithstanding
the fact that in its order of June 18, 1973 , it gave effect to the surviving husband's conformity
to the will and to his renunciation of his hereditary rights which presumably included his onehalf share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not result
in the invalidity of the other dispositions, unless it is to be presumed that the testator would
not have made such other dispositions if the first invalid disposition had not been made" (Art.
792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the
valid parts will be upheld if they can be separated from the invalid without defeating the
intention of the testator or interfering with the general testamentary scheme, or doing
injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is
contrary to law because, although she was a coowner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her
heirs during her husband's lifetime but should be kept intact and that the legitimes should be
paid in cash is contrary to article 1080 of the Civil Code which reads:

ART. 1080. Should a person make a partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, to keep any agricultural,
industrial, or manufacturing enterprise intact, may avail himself of the right
granted him in this article, by ordering that the legitime of the other children to
whom the property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six children
(her husband had renounced his hereditary rights and his one-half conjugal share). She did
not assign the whole estate to one or more children as envisaged in article 1080. Hence, she
had no right to require that the legitimes be paid in cash. On the other hand, her estate may
remain undivided only for a period of twenty years. So, the provision that the estate should
not be divided during her husband's lifetime would at most be effective only for twenty years
from the date of her death unless there are compelling reasons for terminating the
coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the
conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation
partakes of a donation of his hereditary rights and his one-half share in the conjugal estate
(Art. 1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and
752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his
support and maintenance. Or at least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically valid
and the partition therein may be given effect if it does not prejudice the creditors and impair
the legitimes. The distribution and partition would become effective upon the death of Felix
Balanay, Sr. In the meantime, the net income should be equitably divided among the children
and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's will
and his renunciation of his hereditary rights, his one-half conjugal share became a part of his
deceased wife's estate. His conformity had the effect of validating the partition made in
paragraph V of the will without prejudice, of course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will shall
only pass thereby, as if the testator had it at the time of making the will, should it expressly
appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy
or devise of a thing belonging to another person is void, if the testator erroneously believed
that the thing pertained to him. But if the thing bequeathed, though not belonging to the
testator when he made the will, afterwards becomes his, by whatever title, the disposition
shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition
the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could
dispose of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the
husband, after the dissolution of the conjugal partnership, had assented to her testamentary
partition of the conjugal estate, such partition has become valid, assuming that the will may
be probated.

The instant case is different from the Nuguid case, supra, where the testatrix instituted as
heir her sister and preterited her parents. Her will was intrinsically void because it preterited
her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the
preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator, shall annul
the institution of heir; but the devises and legacies, shall be valid insofar as they are not
inofficious." Since the preterition of the parents annulled the institution of the sister of the
testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil
Code).
1wph1.t

In the instant case, the preterited heir was the surviving spouse. His preterition did not
produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his
hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the will as
contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where the
will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal
validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code;
Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638,
October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in
itself prima facie proof that the supposed testator has willed that his estate should be
distributed in the manner therein provided, and it is incumbent upon the state that, if legally
tenable, such desire be given effect independent of the attitude of the parties affected
thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538,
565).
To give effect to the intention and wishes of the testatrix is the first and principal law in the
matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition
operative takes precedence over a construction that will nullify a provision of the will (Arts.
788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces
an intention on the part of the testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided and that the wishes of the
testator should prevail that sometimes the language of the will can be varied for the purpose
of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be followed and the
dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573,
June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will because
any disposition therein is better than that which the law can make (Castro vs. Bustos, L25913, February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors
although no executor or regular administrator has been appointed. The record reveals that it
appointed a special administrator. A notice to creditors is not in order if only a special
administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that

"immediately after granting letters of testamentary or of administration, the court shall issue a
notice requiring all persons having money claims against the decedent to file them in the
office of the clerk of said court" clearly contemplates the appointment of an executor or
regular administrator and not that of a special administrator.
It is the executor or regular administrator who is supposed to oppose the claims against the
estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88,
Rules of Court).
We also take this occasion to point out that the probate court's appointment of its branch
clerk of court as special administrator (p. 30, Rollo) is not a salutary practice because it might
engender the suspicion that the probate Judge and his clerk of court are in cahoots in
milking the decedent's estate. Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate Judge might find it difficult to hold
him to a strict accountability. A court employee should devote his official time to his official
duties and should not have as a sideline the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and
its order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower
court is directed to conduct further proceedings in Special Case No. 1808 in consonance
with this opinion. Costs, against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

Footnotes
* The pertinent provisions of the will are as follows:
"II. That I am the absolute owner of the southern half of the following conjugal
properties which I acquired during my married life with my husband, Felix
Balanay, Sr., namely: (Here follows an enumeration of nine lots).
1wph1.t

"III. I am the absolute owner of the following paraphernal properties which I

inherited from my deceased father, Cecilio Julian, namely: (Here follows a
description of two lots).
"IV. It is my desire and I direct that in the interest of my family, my properties
shall not be divided among my heirs during the lifetime of my husband, Felix
Balanay, Sr. but should be kept intact. The respective legitimes of my
husband and my children should be paid in cash out of the proceeds of sale
of the produce and rents derived from said properties.
"V. After the death of my husband, Felix Balanay, Sr., my properties shall be
divided and distributed in the manner as follows:" (Here follows a partition of
the nine conjugal lots and the two paraphernal lots. The testatrix divided
among her six children not only her two paraphernal lots, one of which she
devised to Emilia Pabaonon and the other lot to Felix Balanay, Jr., but also

the nine conjugal lots. She did not restrict the partition to her one-half
conjugal share but included her husband's one-half share.).

Solano v. CA, 126 SCRA 122

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-41971 November 29, 1983
ZONIA ANA T. SOLANO, petitioner,
vs.
THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S.
GARCIA, respondents.
Benjamin H. Aquino for petitioner.
Alfredo Kallos for respondents.

MELENCIO HERRERA, J.:

+.wph!1

A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming the
judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil Case No.
3956, an action for Recognition.
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be
illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In his
Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of the suit,
SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as
the only surviving heir mentioned in his Last Will and Testament probated on March 10,
1969, or prior to his death, in Special Proceedings No. 842 of the same Court. ZONIA
entered her formal appearance as a "substitute defendant" on March 4, 1970 claiming
additionally that she was the sole heir of her father, SOLANO, and asking that she be
allowed to assume her duties as executrix of the probated Will with the least interference
from the GARCIAS who were "mere pretenders to be illegitimate children of SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental
Cause of Action" impugning the recognition of ZONIA as an acknowledged natural child with
the prayer that she be declared instead, like them, as an adulterous child of the DECEDENT.
ZONIA did not file any responsive pleading and the case proceeded to trial. The GARCIAS
further moved for the impleading of the SOLANO estate in addition to ZONIA, which was
opposed by the latter, but which the Trial Court granted in its Order dated April 15, 1970. 1

In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the
parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the
correct status of ZONIA, and 3) the hereditary share of each of them in view of the probated
Will. 2
On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered
judgment the dispositive portion of which decrees:
t.hqw

WHEREFORE, judgment is hereby rendered declaring the plaintiffs

Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia Ana
Tuagnon as the illegitimate children of the late Dr. Meliton Solano under the
class of ADULTEROUS CHILDREN, with all the rights granted them by law.
The institution of Sonia Ana Solano as sole and universal heir of the said
deceased in the will is hereby declared null and void and the three (3)
children shall share equally the estate or one- third (1/3) each, without
prejudice to the legacy given to Trinidad Tuagnon and the right of any
creditors of the estate. No pronouncement as to costs.
Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CAG.R. No. 49018).
ZONIA seeks a reversal of that affirmance in this petition, which was given due course.
At the outset, we should state that we are bound by the findings of fact of both the Trial Court
and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact,
illegitimate children of the DECEDENT. The oral testimony and the documentary evidence of
record inevitably point to that conclusion, as may be gleaned from the following background
facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world
tour he met a French woman, Lilly Gorand, who became his second wife in 1928. The union
was short-lived as she left him in 1929. In the early part of 1930, SOLANO started having
amorous relations with Juana Garcia, out of which affair was born Bienvenido Garcia on
March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935, Emeteria Garcia was born
(Exhibits "B " & "2"). Their birth certificates and baptismal certificates mention only the
mother's name without the father's name. The facts establish, however, that SOLANO during
his lifetime recognized the GARCIAS as his children by acts of support and provisions for
their education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this
relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her Birth
Certificate, her status was listed as "illegitimate"; her mother as Trinidad Tuagnon; her father
as "P.N.C. " (Exhibit "V"), or "padre no conocido".
During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on
November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and
Trinidad Tuagnon executed an "Escritura de Reconocimiento de Unit Hija Natural" (Exhibit
"Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the right to use the name
ZONIA Ana Solano y Tuagnon. The document was registered with the Local Civil Registrar
on the same date.
On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit "11"),
instituting ZONIA as his universal heir to all his personal and real properties in Camalig,
Tabaco and Malinao, all in the province of Albay, except for five parcels of land in Bantayan,

Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct Upon SOLANO's petition
(Exhibit "10"), the Will was duly probated on March 10, 1969 in Special Proceedings No. 842
of the Court of First Instance of Albay, Branch II, in a Decision also rendered by Judge
Ezequiel S. Grageda (Exhibit "12").
As above stated, these facts are not in question.
Petitioner maintains, however, that:

t.hqw

I
The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in declaring substitute defendant Zonia Ana Solano,
now petitioner, an illegitimate child of the late Dr. Meliton Solano in an action
where private respondents, as plaintiffs in the Court below, sought
recognition as natural children of Dr. Meliton Solano.
II
The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in ordering the division of the estate of Dr. Meliton
Solano between the petitioner and private respondents, when said estate is
under the jurisdiction and control of the probate Court in Special Proceedings
No. 842.
III
The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in declaring nun and void the institution of heir in the
last will and testament of Dr. Meliton Solano, which was duly probated in
special proceedings No. 842 of the Court of First Instance of Albay, and in
concluding that total intestacy resulted there from. 3
Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to
declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the
same action despite the pendency of Special Proceedings No. 842; and 3) to declare null
and void the institution of heir in the Last Win and Testament of SOLANO, which was duly
probated in the same Special Proceedings No. 842, and concluding that total intestacy
resulted.
It is true that the action below was basically one for recognition. However, upon notice of
SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving
heir ... as of as of now" 4 In her "Appearance of Substitute Defendant Zonia Ana T. Solano ...
Sole and Universal Heir", ZONIA specifically prayed that she be 6 allowed to assume her duties
as executrix and administratrix of the probated will and testament of the late Dr. Meliton Solano,
under Special Proceedings No. 842, which is already final and executory, with least interference
from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be
illegitimate children". In other words, ZONIA did not only rely upon SOLANO's Answer already of
record but asserted new rights in her capacity as sole and universal heir, "executrix and
administratrix, "and challenged the right of the GARCIAS to recognition. Thus, she was not
defending the case as a mere representative of the deceased but asserted rights and defenses in
her own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA ...

and Supplemental Cause of Action ... "vigorously denying that ZONIA was SOLANO's sole and
universal heir; that ZONIA could not legally be considered as SOLANO's acknowledged natural
child because of a legal impediment; that the admission to probate of SOLANO's Will was merely
conclusive as to its due execution; that the supposed recognition under a notarial instrument of
ZONIA as an acknowledged natural child was fraudulent and a product of misrepresentation; that
ZONIA's recognition in the Will as an acknowledged natural child is subject to nullification and
that at most ZONIA is, like them, an adulterous child of SOLANO with Trinidad Tuagnon.

During the trial, the GARCIAS presented evidence to prove their allegations not only in their
main complaint but also in their "Reply to Appearance and Supplemental Cause of Action".
ZONIA presented no objection to the presentation by the GARCIAS of their oral and
documentary evidence and even cross-examined their witnesses. ZONIA, for her part,
presented her own testimonial and documentary evidence, denied the relationship of the
GARCIAS' to SOLANO and presented the notarial recognition in her favor as an
acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised
by the parties in their own pleadings and pursuant to their respective evidence during the
trial, the litigation was converted into a contest between the GARCIAS and ZONIA precisely
as to their correct status as heirs and their respective rights as such. No error was committed
by either the Trial Court or the Appellate Court, therefore, in resolving the issue of ZONIA's
status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the
institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and
distributing the shares of the parties in SOLANO's estate when said estate was under the
jurisdiction and control of the Probate Court in Special Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar situation is thrust upon us here.
It should be recalled that SOLANO himself instituted the petition for probate of the Will during
his lifetime. That proceeding was not one to settle the estate of a deceased person that
would be deemed terminated only upon the final distribution of the residue of the hereditary
estate. With the Will allowed to probate, the case would have terminated except that it
appears that the parties, after SOLANO's death, continued to file pleadings therein.
Secondly, upon motion of the GARCIAS, and over the objection of ZONIA, the Trial Court
ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect,
therefore, the two cases were consolidated. The records further disclose that the action for
recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same
Branch of the Court and before the same presiding Judge. Thirdly, it is settled that the
allowance of a Will is conclusive only as to its due execution. 5 A probate decree is not
concerned with the intrinsic validity or legality of the provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the
facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that
ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO
and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth
in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained only in
1943, and, therefore, did not have the legal capacity to contract marriage at the time of
ZONIA's conception, 7 that being compulsory heirs, the GARCIAS were, in fact, pretended from
SOLANO's Last' Will and Testament; and that as a result of said preterition, the institution of
ZONIA as sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code.
t.hqw

The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after

the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ... 8
As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor
of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy,
recognized in Article 563 of the Civil Code, 9and should be respected in so far as it is not
inofficious. 10
So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of
the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding
that the entire Will is void and intestacy ensues, the pretention of the GARCIAS should annul
the institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired.
The Will, therefore, is valid subject to that limitation. 11 It is a plain that the intention of the
testator was to favor ZONIA with certain portions of his property, which, under the law, he had a
right to dispose of by Will, so that the disposition in her favor should be upheld as to the one-half
(1/2) portion of the property that the testator could freely dispose of. 12 Since the legitime of
illegitimate children consists of one half (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA
each have a right to participation therein in the proportion of one-third (1/3) each. ZONIA's
hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS will
respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate.
As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated
in the Will is valid and should be respected.
The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et
al., 15 which held that where the institution of a universal heir is null and void due to pretention, the
Will is a complete nullity and intestate succession ensues, is not applicable herein because in the
Nuguid case, only a one-sentence Will was involved with no other provision except the institution
of the sole and universal heir; there was no specification of individual property; there were no
specific legacies or bequests. It was upon that factual setting that this Court declared:
t.hqw

The disputed order, we observe, declares the will in question 'a complete
nullity. Article 854 of the Civil Code in turn merely nullifies 'the institution of
heir'. Considering, however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null." (at p. 459)
In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the
Civil Code, supra, applies merely annulling the "institution of heir".
Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court
was never questioned before either Court. ZONIA herself had gone, without objection, to trial
on the issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of
jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held
estopped to repudiate that jurisdiction to which she had voluntarily submitted, after she had
received an unfavorable judgment, The leading case of Tijam vs. Sibonghanoy, 16 on this
point, declared:
t.hqw

A party cannot invoke the jurisdiction of a court to secure affirmative relief

against his opponent and after failing to obtain such relief, repudiate or
question the same jurisdiction. The question whether the court has
jurisdiction either of the subject matter of the action or of the parties is not

because the judgment or order of the court is valid and conclusive as an

adjudication but for the reason that such practice cannot be tolerated
obviously for reasons of public policy. After voluntarily submitting a cause and
encountering an adverse decision on the merits, it is too late for the loser to
question the jurisdiction or power of the court.
WHEREFORE, the judgment under review is hereby modified in that the hereditary share in
the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 +
(1/3 of 1/2) or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and
Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of
Trinidad Tuagnon shall be respected. The judgment is affirmed in all other respects. No
costs.
SO ORDERED.

1wph1.t

Plana, Relova and Gutierrez, Jr., JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring:

The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for
settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton
Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code.
Such allowance was granted and this terminated the proceeding, although as noted in the
Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death.
But the issues between the parties as to their status and hereditary shares in view of the
probated will naming petitioner as sole heir were expressly delineated, tried and determined
in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their
father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate
under the probated will) after his death. In effect, therefore, the two cases (assuming that the
probate proceeding could be deemed as having continued notwithstanding its termination
with the allowance in vitam of Dr. Solano's will) which were pending before the same judge
and the same branch of the trial court could be correctly said to have been. consolidated.
Finally, petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly
the jurisdiction of the trial and appellate courts to which she had submitted without question
her cause.

Separate Opinions
TEEHANKEE, J., concurring:

The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for
settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton
Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code.
Such allowance was granted and this terminated the proceeding, although as noted in the
Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death.
But the issues between the parties as to their status and hereditary shares in view of the
probated will naming petitioner as sole heir were expressly delineated, tried and determined
in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their
father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate
under the probated will) after his death. In effect, therefore, the two cases (assuming that the
probate proceeding could be deemed as having continued notwithstanding its termination
with the allowance in vitam of Dr. Solano's will) which were pending before the same judge
and the same branch of the trial court could be correctly said to have been. consolidated.
Finally, petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly
the jurisdiction of the trial and appellate courts to which she had submitted without question
her cause.
Footnotes

t.hqw

1 Annex "H" Petition, p. 64, Rollo.

2 T.s.n., May 13, 1970, pp. 27-29, Decision, p. 18.
3 pp. A-C, Petitioner's Brief.
4 Annex "D", Petition, p. 55, Rollo.
5 Article 838, Civil Code; Rule 75, Sec. 1, Rules of Court.
6 Teotico vs. Del Val,. 13 SCRA 406 (1965); Fernandez vs. Dimagiba, 21
SCRA 428 (1967).
7 Article 277, Civil Code.
8 Article 854, Ibid.
9 Art. 563. usufruct is constituted by law, by the will of private persons
expressed in acts inter vivos or in a last will and testament, and by
prescription
10 Neri vs. Akutin, 74 Phil. 185 (1943).
11 Escuin vs. Escuin, 11 Phil. 332 (1908); Eleazar vs. Eleazar, 67 Phil. 497
(1939).
12 Ibid.
13 Art, 895, Civil Code.
14 17 SCRA 449 (1966)

15 74 Phil. 185 (1943).

16 23 SCRA 29 (1968).

Acain v. CA, 155 SCRA 100

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.

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;

(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 willamounts 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. 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
appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the
questioned decision of respondent Court of Appeals promulgated on August 30, 1985 and its
Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento and Cortes, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.
To my mind, an important distinction has to be made as to whether the omission of a forced
heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by
mistake or inadvertence, there is true preterirton and total intestacy results. The reason for
this is the "inability to determine how the testator would have distributed his estate if none of
the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing in the
will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225)
(Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is
not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated
otherwise. the nullity is partial unlike in true preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission; that is, that if the
testator had known of the existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir. On the other hand, if
the testator attempts to disinherit a compulsory heir, the presumption of the

law is that he wants such heir to receive as little as possible from his estate.
(III Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the omission of the
adopted daughter, hence, my concurrence in the result that total intestacy ensued.

Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.
To my mind, an important distinction has to be made as to whether the omission of a forced
heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by
mistake or inadvertence, there is true preterirton and total intestacy results. The reason for
this is the "inability to determine how the testator would have distributed his estate if none of
the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing in the
will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225)
(Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is
not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated
otherwise. the nullity is partial unlike in true preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission; that is, that if the
testator had known of the existence of the compulsory heir at the time of the
execution of the will, he would have instituted such heir. On the other hand, if
the testator attempts to disinherit a compulsory heir, the presumption of the
law is that he wants such heir to receive as little as possible from his estate.
(III Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the omission of the
adopted daughter, hence, my concurrence in the result that total intestacy ensued.
Footnotes

* Penned by Justice Jose A. R. Melo and concurred in by Justices Milagros

A. German and Nathanael P. De Pano, Jr.