NERI v.

AKUTIN
GR No.L-47799, May 21, 1943
74 PHIL 185

FACTS: This is a case where the testator Agripino Neri in his will left all his
property by universal title to the children by his second marriage, the herein
respondents, with omission of the children by his first marriage, the herein
petitioner. The omission of the heirs in the will was contemplated by the testator
with the belief that he had already given each of the children portion of the
inheritance, particularly a land he had abandoned was occupied by the
respondents over which registration was denied for it turned out to be a public
land, and an aggregate amount of money which the respondents were indebted
to their father.

ISSUE: Should there be cancellation of the will, in view of the omission of heirs?
Is there disinheritance in this case?

HELD: Yes. The Court annulled the institution of heirs and declared a total
intestacy on the ground that testator left all his property by universal title to the
children by his second marriage, without expressly disinheriting the children by
his first marriage but upon the erroneous belief that he had given them already
more shares in his property than those given to the children by his second
marriage. Disinheritance made without a statement of the cause, if contested,
shall annul the institution of heirs in so far as it is prejudicial to the disinherited
person. This is but a case of preterition which annuls the institution of heirs.

NERI, ET AL, vs. AKUTIN

ELEUTERIO NERI, ET AL, vs. IGNACIA AKUTIN AND HER CHILDREN

G.R. No. L-47799 June 13, 1941

MORAN, J.:

Facts:

Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children
named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage
with Ignacia Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma.
Getulia, daughter in the first marriage, died on October 2, 1923, that is, a little less than eight
years before the death of said Agripino Neri y Chavez, and was survived by seven children named
Remedios, Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament,
which was admitted to probate on March 21, 1932, he willed that his children by the first
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marriage shall have no longer any participation in his estate, as they had already received their
corresponding shares during his lifetime. At the hearing for the declaration of heirs, the trial
court found, contrary to what the testator had declared in his will, that all his children by the first
and second marriages intestate heirs of the deceased without prejudice to one-half of the
improvements introduced in the properties during the existence of the last conjugal partnership,
which should belong to Ignacia Akutin.

Issue:

Whether, upon the foregoing facts, the omission of the children of the first marriage annuls the
institution of the children of the first marriage as sole heirs of the testator

Ruling:

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.

In the instant case, while the children of the first marriage were mentioned in the will, they were
not accorded any share in the heriditary property, without expressly being disinherited. It is,
therefore, a clear case of preterition as contended by appellants. The omission of the forced heirs
or anyone of them, whether voluntary or involuntary, is a preterition if the purpose to disinherit
is not expressly made or is not at least manifest. Except as to "legacies and betterments" which
"shall be valid in so far as they are not inofficious, preterition avoids the institution of heirs and
gives rise to intestate succession.

In the instant case, no such legacies or betterments have been made by the testator. "Mejoras" or
betterments must be expressly provided, according to articles 825 and 828 of the Civil Code, and
where no express provision therefor is made in the will, the law would presume that the testator
had no intention to that effect. In the will here in question, no express betterment is made in favor
of the children by the second marriage; neither is there any legacy expressly made in their behalf
consisting of the third available for free disposal. The whole inheritance is accorded the heirs by
the second marriage upon the mistaken belief that the heirs by the first marriage have already
received their shares. Were it not for this mistake, the testator's intention, as may be clearly
inferred from his will, would have been to divide his property equally among all his children.

Adjudication:

Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without
prejudice to the widow's legal usufruct, with costs against respondents.
Reyes v. Barretto-Datu
19 SCRA 85

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FACTS:
Bibiano Barretto was married to Maria Gerardo. When Bibiano Barretto died he left his share
in a will to Salud Barretto and Lucia Milagros Barretto and a small portion as legacies to his
two sisters Rosa Barretto and Felisa Barretto and his nephew and nieces. The usufruct of
a fishpond was reserved for his widow, Maria Gerardo. Maria Gerardo, as administratrix
prepared a project of partition. It was approved and the estate was distributed and the shares
delivered.
Later on, Maria Gerardo died. Upon her death, it was discovered that she executed two wills,
in the first, 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. 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 LC held that Salud
was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This
ruling was appealed to the SC, which affirmed the same.
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.
ISSUE:
W/N the partition from which Salud acquired the fishpond is void ab initio and Salud did not
acquire valid title to it.
HELD:
NO. Salud Barretto admittedly had been instituted heir in the late Bibiano Barrettos 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. 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 fathers 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.

Nuguid vs Nuguid, No. L-23445, June 23, 1966; 17 SCRA 449, digested

Posted by Pius Morados on January 4, 2012

(Special Proceedings Difference between Preterition and Disinheritance)

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Facts: Rosario died without descendants, legitimate or illegitimate. Surviving her were her
legitimate parents Felix and Paz, and 6 brothers and sisters.

Remedios, one of the sister filed in court a holographic will allegedly executed by Rosario
instituting the former as the sole, universal heir of all her properties. She prayed that said will be
admitted to probate and that letter of administration be issued to her.

Felix and Paz opposed to the probate of the will on the ground that by the institution of Remedios
as universal heir of the deceased, oppositors who are compulsory heirs in the direct ascending
line were illegally preterited and that in consequence, the institution is void.

Article 854 provides that preterition 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.

Petitioners contention is that the present is a case of ineffective disinheritance rather than one of
preterition drawing the conclusion that Article 854 does not apply in the case at bar.

Issue: WON the institution of one of the sister of the deceased as the sole, universal heir
preterited the compulsory heirs.

Held: Yes. Where the deceased left no descendants, legitimate or illegitimate, but she left forced
heirs in the direct ascending line her parents, and her holographic will does not explicitly
disinherit them but simply omits their names altogether, the case is one of preterition of the
parents, not a case of ineffective disinheritance.

Preterition consists in the omission in the testators will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, through mentioned, they are neither instituted
as heirs nor are expressly disinherited. Disinheritance, in turn, is a testamentary disposition
depriving any compulsory heir of his share in the legitime for a cause authorized by law.

Where the one sentence will institutes the petitioner as the sole, universal heir and preterits the
parents of the testatrix, and it contains no specific legacies or bequests, such universal institution
of petitioner, by itself, is void. And intestate succession ensues.

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 Nuguid v. Nuguid
GR L-23445, June 23, 1966
FACTS:
Rosario died single, without descendants, legitimate or illegitimate. Surviving were her
legitimate parents, Felix and Paz, and 6 brothers and sisters. One of the siblings filed a
holographic will allegedly executed by Rosario 11 years before her death and prayed that she
be admitted to the probate and be appointed administrator. The parents opposed saying that
they are the compulsory heirs of the decedent in the direct ascending line and that the will
should be void on the ground of absolute preterition.
ISSUE:
Is the will void on the ground of preterition?
RULING:
YES. The decedent left no descendants, legitimate or illegitimate. But she left forced heirs in
the direct ascending line her parents. And, the will completely omits both of them; thus
receiving nothing by the testament, depriving them of their legitime; neither were they
expressly disinherited. This is a clear case of preterition. Note that A. 854 of the NCC merely
nullifies the institution of heir. Considering that the will presented solely provides for the
institution of the petitioner as universal heir and nothing more, the result is the same. The will
is null and void.
NUGUID vs. NUGUID

REMEDIOS NUGUID vs. FELIX NUGUID and PAZ SALONGA NUGUID

G.R. No. L-23445 June 23, 1966

SANCHEZ, J.:

Facts:

Rosario Nuguid 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. 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.

Issue:

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Whether or not the omission of parents of the deceased in the will constitute preterition

Ruling:

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. 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. 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.
Solano vs. CA, Bienvenido/Emeteria Garcia
GR L 41971 November 29, 1983
FACTS:
Bienvenido and Emeteria filed an action for recognition against Melita Solano Meliton died
during the pendency of the petition and his daughter substituted him while asking for the
probate of the will of the decedent. RTC specified the legal issues as 1) the recognition of
Garcias, 2) correct status of Zonia, 3) the hereditary share of each of them in view of the
probated will. In deciding, RTC declared Garcias as illegitimate children of late Meliton.; the
institution of Sonia as sole heir declared null and void, the 3 children shall share equally the
estate CA affirmed.
ISSUE:
Whether or not total intestacy resulted from the declaration that the institution of sole heir from
decedents will.
RULING:
That being compulsory heirs, the Garcias were preterited from Melitons will, and as a result,
Sonias institution as sole heir is null and void pursuant to 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
The intention of the decedent is to favor Sonia with certain portions of his property which the
testator had the right to such so that it should be upheld as to the one-half portion of the
property that the testator could freely dispose of Sonias share is hereby declared to be 4/6 of
the estate and Garcias 1/6 each. The usufruct in favor of will should not be invalidated all
together.
CONSTANTINO C. ACAIN vs. HON. INTERMEDIATE APPELLATE COURT, VIRGINIA A. FERNANDEZ
and ROSA DIONGSON

G.R. No. 72706 October 27, 1987

PARAS, J.:

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Facts:

Constantino Acain filed on the RTC, a petition for the probate of the will of the late Nemesio Acain
and for the issuance to the same petitioner of letters testamentary, 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 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. The oppositors 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.

Issue:

Whether or not private respondents have been preterated

Ruling:

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. 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. 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.

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Adjudication:

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit

ACAIN vs. IAC

October 27, 1987

FACTS:

Constantino filed a petition for the probate of the will of the late Nemesio. The will
provided that all his shares from properties he earned with his wife shall be given to his
brother Segundo (father of Constantino). In case Segundo dies, all such property shall be
given to Segundos children. Segundo pre-deceased Nemesio.

The oppositors Virginia, a legally adopted daughter of the deceased, and the latter's
widow Rosa filed a motion to dismiss on the following grounds:

(1) 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 preterited.

ISSUE:

Was there preterition?

HELD:

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. Insofar as the widow is concerned, Article
854 may not apply as she does not ascend or descend from the testator, although she is a
compulsory heir. 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.

The same thing cannot be said of the other respondent Virginia, whose legal adoption
by the testator has not been questioned by petitioner. Adoption gives to the adopted
person the same rights and duties as if he were a legitimate child of the adopter
and makes the adopted person a legal heir of the adopter. It cannot be denied that
she was totally omitted and preterited in the will of the testator and that both adopted child
8
and the widow were deprived of at least their legitime. Neither can it be denied that they were
not expressly disinherited. This is a clear case of preterition of the legally adopted child.

Preterition annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance. The only provisions which do not result in intestacy are the
legacies and devises made in the will for they should stand valid and respected, except insofar
as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the
entire inheritance of the testator results in totally abrogating the will because the nullification
of such institution of universal heirs - without any other testamentary disposition in the will -
amounts to a declaration that nothing at all was written.

In order that a person may be allowed to intervene in a probate proceeding he must

have an interest in the estate, or in the will, or in the property to be affected by it. 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. At the outset, he appears to have an interest in the will as an heir.
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.
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO vs.

HON. AMOR A. REYES, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS,

VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS
and JAMES D. SEANGIO

G.R. Nos. 140371-72 November 27, 2006

AZCUNA, J.:

Facts:

On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio. Petitioners Dy Yieng, Barbara and Virginia, all
surnamed Seangio, opposed the petition. They contended that: 1) Dy Yieng is still very healthy
and in full command of her faculties; 2) the deceased Segundo executed a general power of
attorney in favor of Virginia giving her the power to manage and exercise control and supervision
over his business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant; and, 4)
Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private
respondents, Alfredo Seangio, for cause. In view of the purported holographic will, petitioners
averred that in the event the decedent is found to have left a will, the intestate proceedings are to
be automatically suspended and replaced by the proceedings for the probate of the will. On April
7, 1999, a petition for the probate of the holographic will of Segundo, was filed by petitioners
before the RTC.
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The document that petitioners refer to as Segundos holographic will is entitled as: Kasulatan sa
pag-aalis ng mana

Issue:

Whether or not there is preterition in the case at bar

Ruling:

The Court believes that the compulsory heirs in the direct line were not preterited in the
will. It was, in the Courts opinion, Segundos last expression to bequeath his estate to all his
compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir to the
exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners,
Virginia, in the document did not operate to institute her as the universal heir. Her name was
included plainly as a witness to the altercation between Segundo and his son, Alfredo.
Considering that the questioned document is Segundos holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil
Code provides that no will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a
person to dispose of his property may be rendered nugatory.

Adjudication:

WHEREFORE, the petition is GRANTED

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