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FIRST DIVISION

[G.R. No. 113725. June 29, 2000.]

JOHNNY S. RABADILLA, 1, Petitioner, v. COURT OF APPEALS AND MARIA MARLENA 2 COSCOLUELLA Y BELLEZA
VILLACARLOS, Respondents.

DECISION

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CA-G.R. No. CV-35555,
which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendants-appellees
(including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.

The antecedent facts are as follows: cha nro b1es vi rtua l 1aw lib ra ry

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of
the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,855 square meters of that parcel of land
surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special
Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained the following provisions: jgc:cha nro bles. com.ph

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay
City:
chanro b1es vi rtua l 1aw li bra ry

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in
my name according to the records of the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth
hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

x x x

FOURTH

(a) It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the
ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942),
and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the
obligation until he dies, every year to give Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies. c hanro bles vi rt ua| |aw |ibrary

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth
paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the
obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each
month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall
die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter’s heirs,
and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED
(100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs
of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate
with others than my near descendants and my sister." 4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of
Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and
Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588,
1
before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to
enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the
Codicil, in that: chanrob1es vi rt ual 1aw li bra ry

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix’s
specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export sugar
and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of
the complaint as mandated by the Codicil, despite repeated demands for compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or
mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar
per crop year to herein private Respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return Lot No. 1392 to the
surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla,
and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted,
with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.

During the pre-trial, the parties admitted that: chanro b1es vi rtua l 1aw lib ra ry

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who
was lessee of the property and acting as attorney-in-fact of defendant heirs, arrived at an amicable settlement and entered
into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect: jgc:chan roble s.com.p h

"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than
January of 1989, more specifically, to wit: chan rob 1es vi rtual 1aw lib rary

75 piculs of ‘A’ sugar, and 25 piculs of ‘B’ sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan
Azurin, during December of each sugar crop year; in Azucar Sugar Central; and, this is considered compliance of the annuity
as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the
number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of
sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of
December of every sugar crop year, to wit: chanro b1es vi rtua l 1aw li bra ry

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop
year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop
year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop
year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop
year 1991-92." 5

However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs
of sugar corresponding to sugar crop year 1988-1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows: jgc:c han robles. com.ph

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action
against the defendants has as yet arose in favor of plaintiff. While there maybe the non-performance of the command as
mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in
question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the
category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the
heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice. cha nrob les.co m : virtual law lib rary

SO ORDERED." 6

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and
ordering thus: jgc:c hanro bles. com.ph

"Therefore, the evidence on record having established plaintiff-appellant’s right to receive 100 piculs of sugar annually out of
the produce of Lot No. 1392; defendants-appellee’s obligation under Aleja Belleza’s codicil, as heirs of the modal heir, Jorge
Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee’s admitted non-compliance with said
obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No.
1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the
reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-
appellant must institute separate proceedings to re-open Aleja Belleza’s estate, secure the appointment of an administrator,
and distribute Lot No. 1392 to Aleja Belleza’s legal heirs in order to enforce her right, reserved to her by the codicil, to
2
receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of
Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED." 7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present
petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja
Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a
modal institution within the purview of Article 882 of the New Civil Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil
Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of
action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix
intended a mere simple substitution — i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix’s
"near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since
the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be
given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not
definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as to
who are the "near descendants" and therefore, under Articles 843 8 and 845 9 of the New Civil Code, the substitution should
be deemed as not written.

The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue
posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action,
there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the
petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally
demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance
with law.

It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the
decedent 10 and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in
relation to their legitimate parents, and the widow or widower, are compulsory heirs. 11 Thus, the petitioner, his mother and
sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need
of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr.
Jorge Rabadilla.chanro bles. com.ph : re d

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not
extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted
to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of
the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise
transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the
usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his
compulsory heirs succeeded to his rights and title over said property, and they also assumed his (decedent’s) obligation to
deliver the fruits of the lot involved to herein private Respondent. Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being
demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against
petitioner and the trial court erred in dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the
testatrix intended was a substitution — Dr. Jorge Rabadilla was to be substituted by the testatrix’s near descendants should
there be non-compliance with the obligation to deliver the piculs of sugar to private Respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted.
Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property
shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a
simple substitution, 12 or (2) leave his/her property to one person with the express charge that it be transmitted
subsequently to another or others, as in a fideicommissary substitution. 13 The Codicil sued upon contemplates neither of
the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease
or renunciation. 14 In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge
Rabadilla default due to predecease, incapacity or renunciation, the testatrix’s near descendants would substitute him. What
the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned over to the testatrix’s near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution,
the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. 15 In the case
under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is
with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is
lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second
heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution."
16 Also, the near descendants’ right to inherit from the testatrix is not definite. The property will only pass to them should
3
Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private Respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the
fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A
fideicommissary substitution is therefore, void if the first heir is not related by first degree to the-second heir. 17 In the case
under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a
modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the
New Civil Code provide: chan rob 1es vi rtual 1aw lib rary

ARTICLE 882. The statement of the object of the institution or the application of the property left by the testator, or the
charge imposed on him, shall not be considered as a condition unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation.

ARTICLE 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the
exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his
wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion
sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose
or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. 18 A "mode"
imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. 19 On the
other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be
entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend.
20 To some extent, it is similar to a resolutory condition. 21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that the subject
property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said
instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena
Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla’s inheritance
and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though,
that should the obligation be not complied with, the property shall be turned over to the testatrix’s near descendants. The
manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge
upon the instituted heir without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be
considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of
doubt, the institution should be considered as modal and not conditional. 22

Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not
the right to seize the property itself from the instituted heir because the right to seize was expressly limited to violations by
the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions,
the testator’s intention is to be ascertained from the words of the Will, taking into consideration the circumstances under
which it was made. 23 Such construction as will sustain and uphold the Will in all its parts must be adopted. 24

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to
Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer,
lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further
provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix’s near descendants. The non-performance of the said obligation is thus with the
sanction of seizure of the property and reversion thereof to the testatrix’s near descendants. Since the said obligation is
clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed
by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-
interest.

Similarly unsustainable is petitioner’s submission that by virtue of the amicable settlement, the said obligation imposed by
the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that
petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated
settlement between the lessee and the private respondent, and having consummated a settlement with the petitioner, the
recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of
subject property.

Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take
effect after his death. 25 Since the Will expresses the manner in which a person intends how his properties be disposed, the
wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement
which would thereby defeat the very purpose of making a Will.

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-
G.R. No. CV-35555 AFFIRMED. No Pronouncement as to costs. chanroble s virtual lawlib rary

SO ORDERED.

Melo, J., I concur as well in the separate opinion of Justice Vitug.

Gonzaga-Reyes, J., took no part.


4
Separate Opinions

VITUG, J., concurring: chan rob1e s virtual 1aw lib rary

By virtue of a codicil appended to her will, Aleja Belleza devised a 511,856-square meter parcel of land in Bacolod City,
denominated Lot No. 1392 of the Bacolod Cadastral Survey, to Jorge Ravadilla (predecessor-in-interest of petitioner), 1
carrying with it an obligation to deliver to private respondent, Maria Marlena Coscolluela y Belleza, one hundred piculs of
sugar per crop year during her lifetime. The portions of the codicil, pertinent to the instant controversy, read: jgc:chanrobles. com.ph

"FIRST

"I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla, resident of 141 P. Villanueva, Pasay
City:
jgc:chan robles. com.ph

"(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), which is registered in
my name according to the records of the Register of Deeds of Negros Occidental.

b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth
hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla.

x x x

FOURTH

"(a) It is also my command, in this my addition (codicil), that should I die and Jorge Rabadilla shall have already received the
ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), and
also at the time that the lease of Balbinito Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until
he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five
(25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

"FIFTH

"(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10942), shall have the obligation to still give yearly, the sugar as specified in the Fourth
paragraph of this testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.

"SIXTH

"I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the
obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each
month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall
die, lastly should the buyer, lessee, or the mortgagee of this lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter’s heirs,
and shall turn it over to my near descendants, 2 and the latter shall then have the obligation to give the ONE HUNDRED
(100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs
of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate
with others than my near descendants and my sister." 3

Pursuant to the above provisions of the codicil, ownership of Lot No. 1392 was transferred to Jorge Rabadilla and Transfer
Certificate of Title No. T-44498 was issued in his name. chanrobles. c om : virtual law lib rary

Sometime in 1983, Jorge Rabadilla died, survived by his wife, Rufina, and their children Johnny, Aurora, Ofelia and Zenaida.

On 21 August 1989, on account of the failure of the heirs of Jorge Rabadilla to comply with the obligation under the codicil,
private respondent filed an action, docketed Civil Case No. 5588, against the Rabadilla heirs before the Regional Trial Court,
Branch 52, of Bacolod City for the reconveyance of Lot 1392 to the heirs of Aleja Belleza and the cancellation of Transfer
Certificate of Title No. 44498 covering the property in the name of Jorge Rabadilla.

The trial court dismissed the complaint "without prejudice." 4 On appeal taken by private respondent to the Court of Appeals,
the appellate court set aside the appealed decision and held: jgc:c hanro bles. com.ph

"Therefore, the evidence on record having established plaintiff-appellant’s right to receive 100 piculs of sugar annually out of
the produce of Lot No. 1392; defendants-appellees’ obligation under Aleja Belleza’s codicil, as heirs of the modal heir, Jorge
Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellees’ admitted non-compliance with said
obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No.
1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the
reconveyance of title over Lot No. 1392 from the estate of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-
appellant must institute separate proceedings to re-open Aleja Belleza’s estate, secure the appointment of an administrator,
and distribute Lot No. 1392 to Aleja Belleza’s legal heirs in order to enforce her right, reserved to her by the codicil, to
receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

"Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of
Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED." 5

Petitioner, in the instant petition for review, submits that the appellate court has erred in: (1) ordering the reversion of Lot

5
1392 to the estate of Aleja Belleza on the basis of paragraph six of the codicil, and (2) in ruling that the testamentary
institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the Civil Code. Additionally, he
avers that respondent court has improvidently deviated from the sole issue raised which is the prematurity of the action
before the court a quo. Upon the other hand, respondent would have this Court sustain the assailed decision of the Court of
Appeals contending that the appellate court is completely justified in delving into the nature of the institution in the codicil,
the same having a direct significance on the issue of whether or not the complaint before the trial court has been
prematurely filed. Private respondent adds that the institution in question is modal within the context of Article 882 of the
Civil Code which gives her the right to seize the subject property.

I agree with my colleagues that "substitution" is not here apropos. Substitution is the appointment of another heir so that he
may enter into the inheritance in default of the heir originally instituted. 6 Substitution is simple when the testator
designates one or more persons to substitute the heir or heirs instituted in case the latter should die before him, or should
not wish, or should be incapacitated to accept the inheritance, and a substitution without a statement of the cases to which it
refers shall comprise all said three cases. 7 There is no simple substitution that takes place where the heir originally
instituted is able to succeed. 8 Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. 9
Every fideicommissary substitution should be expressly made in order that it may be valid. 10 The term "fideicommissary
substitution" need not, however, be used in the will; It is enough that there is a clear and unequivocal statement that one
shall enjoy usufructuary or other rights, short of naked ownership or title, over certain property of the testator with the
obligation to preserve the property and to transmit it to a second heir. 11 It is essential for the validity of a fideicommissary
substitution that both heirs are living and qualified to succeed at the time of death by the testator and that the substitute
does not go beyond one degree from the heir originally instituted. The term "one degree" has been the subject of varied
interpretation. One view is to the effect that the term means one transfer, citing the Supreme Tribunal of Spain and as
advocated by eminent civilists as Justices J.B.L. Reyes, R. Puno, E. Caguioa, and D. Jurado. In Ramirez v. Ramirez, 12
decided on 15 February 1982, the Court, however, adopted the literal view that "one decree" means relationship or
generation as so advanced by equally eminent writers Dr. A. Padilla, Justice E. Paras and Dr. A. Tolentino. In the subsequent
case of the Testate Estate case of Fr. Aranas, 13 however, the Court upheld the usufructuary right of the Roman Catholic
Church under a legacy that now renders doubtful the continued validity of the Ramirez doctrine. cha nrob les.co m.ph : red

The institution of Jorge Rabadilla in the Belleza codicil partook the nature of an institution sub modo, rather than one of
substitution, governed by the provisions of Article 882 of the Civil Code. This law provides: jgc:c hanro bles. com.ph

"ARTICLE 882. The statement of the object of the institution, or the application of the property left by the testator, or the
charge imposed by him, shall not be considered as a condition unless it appears that such was his intention.

"That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security
for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits
and interests, if he or they should disregard this obligation." (Emphasis supplied)

A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy,
either in a suspensive or resolutory manner, of a testamentary disposition while the former obligates the instituted heir to
comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance provided
he gives security to ensure compliance with the will of the testator and the return of the thing received together with its
fruits and interests, "should (the heir) disregard this obligation." The obligation imposed upon the heir or legatee is deemed
not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case
of doubt, the institution is considered modal, rather than conditional. Much of the variance in the legal effects of the two
classes, 14 however, is now practically theoretical and merely conceptual. Under the Old Civil Code 15 an institucion sub
modo could be said to be more akin to an institution sub demonstratione, or an expression of a wish or suggestion of the
testator that did not have any real obligatory force, that matter being left instead to the discretion of the heir, i.e., whether
to abide by it or not. The amendatory provisions of the New Civil Code now hardly differentiates between the principal effect
of the non-compliance with the mode and that of the occurence of a resolutory condition expressed in the will. In both
instances, the property must be returned to the estate of the decedent to then pass on under the rules of intestacy.

ACCORDINGLY, I also vote for the dismissal of the instant petition.

Panganiban, J., concurs.

Endnotes:

1. Was spelled interchangeably in Rollo as Ravadilla.

2. Was spelled interchangeably in Rollo as Marlina.

3. Penned by Justice Santiago M. Kapunan (Chairman) and concurred in by Justices Minerva P. Gonzaga-Reyes and Eduardo
G. Montenegro, (Members).

4. Annex "C", Rollo, pp. 34-35.

5. Rollo, pp. 65-66.

6. RTC Decision, pp. 8-9.

7. CA Decision, p. 14.

8. Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the
same names, he shall indicate some circumstance by which the instituted heir may be known.

Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be
6
no doubt as to who has been instituted, the institution shall be valid.

9. Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity
becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid.

10. Article 777, New Civil Code.

11. Ibid., Article 887.

12. Ibid., Article 859.

13. Ibid., Article 863.

14. Ibid., Article 859.

15. Arturo Tolentino, Commentaries and Jurisprudence on the Civil Code, Volume III, p. 212.

16. Ibid., p. 212.

17. Ramirez v. Vda. De Ramos, 111 SCRA 704.

18. Tolentino, supra, pp. 241-242.

19. Ibid., p. 242.

20. Ibid.

21. Jottings and Jurisprudence in Civil Law, Ruben Balane, p. 249.

22. Tolentino, supra, p. 242.

23. Article 789, NCC.

24. Tolentino, supra, p. 34.

25. Art. 783, NCC and Tolentino, p. 28-29.

VITUG, J., concurring: chan rob1e s virtual 1aw lib rary

1. The will, along with the codicil, was probated and admitted in Special Proceedings No. 4046 before the then Court of First
Instance of Negros Occidental.

2. Relative to the intimation that the term "near descendants" of the testatrix is too indefinite and opposed to the
requirement of Article 843 of the Code, attention might be invited to the provisions of Article 845, in relation to Article 959,
of the Code that can permit proper identification by some means other than the given name and surname of the intended
testate heirs enough to render the institution valid and effective. The ponencia, in any case, states that the testatrix "died
single and without issue." cralaw virtua1aw l ibra ry

3. Rollo, pp. 34-35.

4. The trial court opined that the action was premature since no cause of action had as yet arisen in favor of private
respondent and noted that the banking institutions, mortgagees, of the property, were not privies to the obligation of Jorge
Rabadilla under the Belleza codicil.

5. Rollo, p. 73.

6. Article 857, New Civil Code.

7. Article 859, New Civil Code.

8. The Codicil indicates that the testatrix clearly intended Jorge Rabadilla to have the ownership of the lot in question pass on
to him upon her death.

9. Article 863, New Civil Code.

10. Article 864, New Civil Code.

11. See Crisologo v. Singson, 4 SCRA 491.

12. 111 SCRA 704.

13. 29 May 1987.

14. Morente v. De la Santa, 9 Phil. 387; Chiong v. Vaño, 8 Phil. 119.

15. See Article 797.

7
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

8
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.

9
The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator
results in totally abrogating the will because the nullification of such institution of universal heirs-without any other
testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in
clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No
legacies nor devises having been provided in the will the whole property of the deceased has been left by universal
title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the
opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as
already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he
must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a
claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one
who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not
the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any
gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the
outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person
called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted
from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir
of the testator. He has no legal standing to petition for the probate of the will left by the deceased and Special
Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive
exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. 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
10
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

11
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.

12
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, v. 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.

SYNOPSIS

Leodegaria Julian, in her will, partitioned her paraphernal as well as all the conjugal properties as if they were all owned by
her, disposing of her husband’s one-half share, and providing that the properties should not be divided during her husband’s
lifetime but should remain intact and that the legitimes should be paid in cash to be satisfied out of the fruits of the
properties. Felix Balanay, Jr. filed a petition for the approval of his mother’s will which was opposed by the husband and
some of her children. During the pendency of the probate proceedings petitioner submitted to the court a document showing
his father’s conformity to the testamentary distribution, renouncing his hereditary rights in favor of his children in deference
to the memory of his wife. The Court denied the opposition, set for hearing the probate of the will and gave effect to the
affidavit and conformity of the surviving spouse.

Meanwhile, a certain Atty. David Montaña, Sr. allegedly, in behalf of the petitioner, moved to dismiss the probate
proceedings and requested authority to proceed by intestate proceedings on the ground that the will was void, which motion
was granted by the probate court. The Court, however, did not abrogate its prior orders to proceed with the probate
proceedings. Subsequently, the court appointed the branch clerk as special administrator, and notice to creditors was issued
and published in the Davao Star.

Petitioner impugned the order of dismissal claiming that Atty. Montaña had no authority to ask for the dismissal of the
petition for allowance of will and that the court erred in declaring the will void before resolving the question of its formal
validity.

The Supreme Court set aside the order dismissing the petition for probate of the will directed the lower court to proceed with
the hearing of the case with costs against private respondents.

SYLLABUS

1. WILLS; PROBATE; COURTS MAY PASS UPON THE INTRINSIC VALIDITY BEFORE ALLOWANCE OF WILL. — Where the will
contains unusual provisions which are of dubious legality and a motion to withdrew the petition for probate presumably with
petitioner’s authorization has been filed, the trial court can pass upon the will’s intrinsic validity even before its formal
validity had been established. When practical considerations demand that intrinsic validity be passed upon even before the
will is probated, the court should do so, since the probate of a will probated, the court should do so, since the probate of a
will might become an idle ceremony if on its face the will is intrinsically void.

2. ID.; ID.; PROBATE MANDATORY; EXCEPTION. — Generally, the probate of a will is mandatory and it is the duty of the
court to pass first upon its formal validity except in extreme cases where the will is on its face intrinsically void.

3. ID.; ID.; ID.; EFFECT OF ILLEGAL PROVISIONS IN A WILL. — A will is not rendered null and void by reason of the
existence of some illegal or void provisions since 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; and where some provisions are valid and others invalid, the
valid provisions shall be upheld if they can be separated from the invalid provisions without defeating the intention of the
testator or interfering with the general testamentary scheme or doing injustice to the beneficiaries.

4. ID.; ID.; ILLEGAL DECLARATION MAY BE DISREGARDED. — The statement of the testatrix in her will that she owned the
"southern half" of the conjugal lands is contrary to the law, because although she was a co-owner thereof, her share was
inchoate and pro indiviso; but the illegal declaration does not nullify the entire will, and said statement may be disregarded.

5. ID.; ID.; ESTATE MAY REMAIN UNDIVIDED ONLY FOR A PERIOD OF 20 YEARS. — Under Article ‘083 of the Civil Code, the
estate may remain undivided only for a period of twenty years; so that the provision in the testatrix’s will that the estate
should not be divided during her husband’s lifetime would at most be effective only for 20 years from the date of her death
unless there are compelling reasons for terminating the co-ownership.

6. ID.; ID.; TESTATRIX MAY NOT REQUIRE PAYMENT OF LEGITIMATES TO BE PAID IN CASH IF WHOLE ESTATE IS NOT
ASSIGNED TO ONE OR MORE CHILDREN. — The testatrix has no right to require that the legitimes be paid in cash, contrary
to Article ‘080 of the Civil Code if in her will she partitioned the entire conjugal estate among her children (her husband had
renounced his hereditary rights and his one-half conjugal share, and did not assign the whole estate to one or more children
as envisaged in said article.

7. ID.; ID.; RENUNCIATION; EFFECT OF RENUNCIATION OF HEREDITARY RIGHTS. — The surviving spouse can validly

13
renounce his heredity rights; but insofar as such renunciation partakes of a donation of the hereditary rights and his share in
the conjugal properties, it should be subject to the limitations prescribed in Article 750 and 752 of the Civil Code on
inofficious donations; and a portion of the estate should be adjudicated for his maintenance or at least his legitime respected.

8. ID.; ID.; ID.; INVALID DISPOSITION BY WILL OF ENTIRE CONJUGAL PARTNERSHIP CURED BY SURVIVING SPOUSE’S
CONFORMITY THERETO. — Although under Article ‘70 of the Civil Code the testatrix could dispose of by will only her half of
the conjugal state, the conformity of the husband, made after the dissolution of the conjugal partnership by the death of the
testatrix, has the effect of validating the testamentary partition of the conjugal estate, without prejudice, of course, to the
rights of creditors and legitimes of the compulsory heirs.

9. ID.; FUTURE PROPERTIES; BEQUEST OF FUTURE PROPERTIES. — Under Article 793 of the Civil Code, property acquired
after the making of the will shall only pass thereby, as if the testator had possessed it at the time of making the will, should
it expressly appear by the will that such was his intention; while under Article 930 of said Code, the legacy or devise of a
thing belonging to another is void, if he erroneously believed that the 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.

10. ID; PRETERITION; OMISSION OF THE LEGAL HEIRS INVALIDATES THE WILL.—Under Article 854 of the Civil Code, the
preterition of the compulsory heir 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. Thus, the preterition of the parents annuls the institution of the sister of the testatrix, and renders the will
intrinsically void; and if there are no legacies and devices, total intestacy results. But the preterition of the surviving spouse
does not produce intestacy nor render the will intrinsically void, especially if the preterited spouse signified his conformity to
his wife’s will and renounced his hereditary rights.

11. ID.; INTENTIONS; COURTS SHOULD STRIVE TO GIVE EFFECT TO THE WISHES OF THE TESTATOR. — To give effect to
the intention and wishes of the testatrix is the first and principal law on the matter of the testaments, and such desires
should be given effect independently of the attitude of the parties affected thereby and an interpretation that will render a
testamentary disposition operative takes precedence over a construction that will nullify it.

12. ID.; ID.; ID.; TESTACY; DOUBTS SHOULD BE RESOLVED IN FAVOR OF TESTACY. — Doubts are resolved in favor of
testacy especially where the will evinces an intention on the part of the testator to dispose of practically the 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, because whatever disposition therein made is better
than what the law can make.

13. ID.; EXECUTORS; NOTICE TO CREDITORS CANNOT BE ISSUED BEFORE REGULAR EXECUTOR IS APPOINTED; REASONS.
— The issuance of notice to creditors after a special executor or administrator had been appointed but before the
appointment of a regular executor or administrator is erroneous being contrary to the rules of court aside from the fact that
it is the regular executor or administrator who is supposed to oppose the claims against the estate or pay such claims if
allowed.

14. ID.; ID.; JUDICIAL OFFICERS SHOULD REFRAIN FROM BEING APPOINTED EXECUTORS. — The appointment of the
branch Clerk of Court as special administrator is not a salutary practice because it might engender the suspicion that the
probate court and his clerk are in cahoots in milking the decedent’s estate, and if he commits 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 duties and should not have as a sideline the administration of a decendent’s estate.

DECISION

AQUINO, J.:

Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, ‘974,
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.’808). The antecedents of the
appeal are as follows: chanro b1es vi rt ual 1aw li bra ry

Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February ‘2, ‘973 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, ‘973 for the probate of his mother’s notarial will
dated September 5, ‘970 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 ‘973) 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 ‘8, ‘973
14
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 ‘8, ‘973 "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, ‘973 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 ‘8, ‘973 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 ‘5, ‘973.

In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr., claiming to be the lawyer of petitioner Felix
Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, ‘973 for "leave of court to
withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In
that motion Montaña claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo,
Carolina B. Manguiob and Emilia B. Pabaonon.

Montaña in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a
compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted
into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be
issued.

Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October ‘5, ‘973 manifested
their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for being
contrary to law and that an intestacy be declared.

The lower court, acting on the motions of Atty. Montaña, assumed that the issuance of a notice to creditors was in order
since the parties had agreed on that point. It adopted the view of Attys. Montaña and Guyo that the will was void. So, in its
order of February 28, ‘974 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 ‘ and 2, ‘974.
The lower court did not abrogate its prior orders of June ‘8 and October ‘5, ‘973. The notice to creditors was issued on April ‘,
‘974 and published on May 2, 9 and ‘6 in the Davao Star in spite of petitioner’s motion of April ‘7, ‘974 that its publication be
held in abeyance.

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April ‘5, ‘974, asked for the
reconsideration of the lower court’s order of February 28, ‘974 on the ground that Atty. Montaña had no authority to
withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, ‘974
addressed to Atty. Montaña and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B.
Pabaonon, wherein they terminated Montana’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, ‘974. It clarified that it declared the will void on the basis of its own independent assessment of its
provisions and not because of Atty. Montaña’s arguments.

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

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the
motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner’s
authorization), the trial court acted correctly in passing upon the will’s intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court
should meet the issue (Nuguid v. Nuguid, 64 O.G.’527, ‘7 SCRA 449. Compare with Sumilang v. Ramagosa, L-23’35,
December 26, ‘967, 2’ SCRA ‘369; Cacho v. Udan, L-’9996, April 30, ‘965, ‘3 SCRA 693).

But the probate court erred in declaring in its order of February 28, ‘974 that the will was void and in converting the testate
proceeding into an intestate proceeding notwithstanding the fact that in its order of June ‘8, ‘973 it gave effect to the
surviving husband’s conformity to the will and to his renunciation of his hereditary rights which presumably included his one-
half share of the conjugal estate.

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

The statement of the testatrix that she owned the "southern half" of the conjugal lands is contrary to law because, although
she was a coowner thereof, her share was inchoate and proindiviso (Art.’43, Civil Code; Madrigal and Paterno v. Rafferty and
Concepcion, 38 Phil. 4’4). 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 ‘080 of the Civil Code
which reads: jgc:chan roble s.com.p h

15
"ART.’080. 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, desires 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. (’056a)"

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 ‘080. 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.’083, Civil Code).

Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts.’79[’]
and ‘04’, 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.’050[’] 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 be 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 possessed 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." cralaw virt ua1aw li bra ry

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.’70, 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).

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 ‘8, ‘97’3. 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 v.
Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez v. Dimagiba, L-23638, October ‘2, ‘967, 2’ 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 v. Narciso, L-27200, August ‘8, ‘972, 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 v. Dizon, L-2456’, June 30, ‘970, 33 SCRA 554, 56’). 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 79’, 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 v. Reyes, L-23079, February 27, ‘970, 3’ 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 v. Estorque, L-’9573, June 30, ‘970, 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 v. Bustos, L-259’3, February 28, ‘969, 27 SCRA 327, 34’).

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 ‘, Rule 86 of the Rules of Court, in providing that
16
"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 (Sec.’0, Rule 86 and sec.’, 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, ‘974 are set aside and its order of June ‘8, ‘973, setting
for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case
No.’808 in consonance with this opinion. Costs, against the private respondents.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

Endnotes:

* The pertinent provisions of the will are as follows:jgc:c han robles. com.ph

"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).

"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 hushand, 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 devided 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.)

17
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.: ñé+.£ª 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: têñ.£îhqwâ£

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

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

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

At the outset, we should state that we are bound by the findings of fact of both the Trial Court and the Appellate
Court, particularly, the finding that the GARCIAS and ZONIA are, in fact, illegitimate children of the DECEDENT.
The oral testimony and the documentary evidence of record inevitably point to that conclusion, as may be gleaned
from the following background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died. On
a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928. The union was short-lived
as she left him in 1929. In the early part of 1930, SOLANO started having amorous relations with Juana Garcia, out
of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935,
Emeteria Garcia was born (Exhibits "B " & "2"). Their birth certificates and baptismal certificates mention only the

18
mother's name without the father's name. The facts establish, however, that SOLANO during his lifetime recognized
the GARCIAS as his children by acts of support and provisions for their education.

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

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

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

As above stated, these facts are not in question.

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

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

II

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

III

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

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

It is true that the action below was basically one for recognition. However, upon notice of SOLANO's death, the Trial
Court ordered his substitution by ZONIA, "the only surviving heir ... as of as of now" 4 In her "Appearance of
Substitute Defendant Zonia Ana T. Solano ... Sole and Universal Heir", ZONIA specifically prayed that she be 6
allowed to assume her duties as executrix and administratrix of the probated will and testament of the late Dr.
Meliton Solano, under Special Proceedings No. 842, which is already final and executory, with least interference
from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to be illegitimate children".
In other words, ZONIA did not only rely upon SOLANO's Answer already of record but asserted new rights in her
capacity as sole and universal heir, "executrix and administratrix, "and challenged the right of the GARCIAS to
recognition. Thus, she was not defending the case as a mere representative of the deceased but asserted rights
and defenses in her own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA ...
and Supplemental Cause of Action ... "vigorously denying that ZONIA was SOLANO's sole and universal heir; that
ZONIA could not legally be considered as SOLANO's acknowledged natural child because of a legal impediment;
that the admission to probate of SOLANO's Will was merely conclusive as to its due execution; that the supposed
recognition under a notarial instrument of ZONIA as an acknowledged natural child was fraudulent and a product of
misrepresentation; that ZONIA's recognition in the Will as an acknowledged natural child is subject to nullification
and that at most ZONIA is, like them, an adulterous child of SOLANO with Trinidad Tuagnon.
19
During the trial, the GARCIAS presented evidence to prove their allegations not only in their main complaint but also
in their "Reply to Appearance and Supplemental Cause of Action". ZONIA presented no objection to the
presentation by the GARCIAS of their oral and documentary evidence and even cross-examined their witnesses.
ZONIA, for her part, presented her own testimonial and documentary evidence, denied the relationship of the
GARCIAS' to SOLANO and presented the notarial recognition in her favor as an acknowledged natural child by
SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised by the parties in their own pleadings and pursuant to
their respective evidence during the trial, the litigation was converted into a contest between the GARCIAS and
ZONIA precisely as to their correct status as heirs and their respective rights as such. No error was committed by
either the Trial Court or the Appellate Court, therefore, in resolving the issue of ZONIA's status.

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

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

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

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

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

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

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

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

The disputed order, we observe, declares the will in question 'a complete nullity. Article 854 of the
Civil Code in turn merely nullifies 'the institution of heir'. Considering, however, that the will before us

20
solely provides for the institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null." (at p. 459)

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

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

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. 1äw phï1.ñët

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
21
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 têñ.£îhqwâ£

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).

22
EN BANC

[G.R. No. L-17818. January 20, 1967.]

TIRSO T. REYES, as guardian of the minors, Azucena, Flordelis and Tirso, Jr. all
surnamed Reyes y Barretto, Plaintiff-Appellant, v. LUCILA MILAGROS BARRETTO
DATU, Defendant-Appellant.

Recto Law Offices, for Plaintiff-Appellant.

Deogracias T. Reyes and Associates, for Defendant-Appellee.

SYLLABUS

1. CIVIL LAW; ARTICLE 1081 OF THE CIVIL CODE OF 1889 (then in force) CONSTRUED. — Article
1081 of the Civil Code of 1889 (then in force) provided that "a partition in which a person was
believed to be an heir without being so, has been included, shall be null and void." Based on this
Article, the lower court declared the project of partition submitted in the proceedings for the
settlement of the estate of B.B. to be null and void ab initio because the distributee, S.B., was not
a daughter of the decedent. HELD: Article 1081 of the old Civil Code has been misapplied to the
present case by the lower court. S.B. had been instituted heir in the late decedent’s last will and
testament together with M.B., decedent’s daughter; 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 B.B. was at a liberty to assign the free portion
of his estate to whomsoever he chose.

2. ID.; LEGITIME; ALLOTMENT OF SMALLER SHARE THAN LEGITIME DOES NOT INVALIDATE
INSTITUTION OF HEIR. — While the share (1/2) assigned to S.B. impinged on the legitime of M.B.,
S. B. did not for that reason cease to be a testamentary heir of B.B. Nor does the fact that M.B.
was allotted in her father’s will a share smaller than her legitime invalidate the institution of S.B.
as heir, since there was here no preterition, or total omission of a forced heir.

3. ID.; COMPROMISE ON CIVIL STATUS PRESUPPOSES SETTLEMENT OF CONTROVERSY THROUGH


MUTUAL CONCESSION OF PARTIES. — Appellee contends that the partition in question was void as
a compromise on the civil status of S.B. This view is erroneous, since a compromise presupposes
the settlement of a controversy through mutual concessions of the parties, and the condition of
S.B. as daughter of the testator, 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.

4. ID.; PARTITION; JUDICIAL DECREE OF DISTRIBUTION; ITS EFFECT. — Independently of a


project of partition which 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; 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. 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.

5. ID.; ID. — Even without the (questioned) project of partition the distribution could stand since it
was in conformity with the probated will of the deceased, against the provisions whereof no
objection had been made.

6. ID.; JUDICIAL DECREE OF DISTRIBUTION; MINORITY OF HEIR DOES NOT IMPLY THAT COURT
WAS WITHOUT JURISDICTION TO ENTER DECREE OF DISTRIBUTION. — That M. B. 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.

7. ID.; ID.; PROBATE PROCEEDING; NATURE OF. — The proceeding for probate is one in rem and
the court acquires jurisdiction over all persons interested, through the publication of the notice and
any order that may be entered therein is binding against all of them. A final order of distribution of
the estate of a deceased person vests the title to the land of the estate in the distributees.

8. ID.; ID.; ID.; GROUNDS FOR SETTING ASIDE. — The only instance 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

23
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 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.

9. ID.; STATUTE OF LIMITATIONS; SUIT BASED ON FRAUD SHOULD BE BROUGHT WITHIN 4


YEARS FROM ITS DISCOVERY. — Granting that there was fraud, relief therefrom can only be
obtained within 4 years from its discovery, and the record shows that this period had elapsed long
ago.

10. ID.; GUARDIAN; WAIVER OF RIGHTS BY GUARDIAN DOES NOT BIND HIS WARDS. — An
abdicative waiver of rights by a guardian, being an act of disposition and not of administration,
cannot bind his wards, being null and void as to them unless duly authorized by the proper court.

DECISION

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 received by his deceased 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: jgc:chanro bles. com.ph

"‘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 to 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 and
nieces. The usufruct of the fishpond situated in barrio San Roque, Hagonoy, Bulacan,
abovementioned, however, was reserved for his widow, Maria Gerardo. In the meantime, Maria
Gerardo was appointed 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

24
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:jg c:chan rob les.com. ph

"A partition in which a person was believed to be an heir, without being so, has been included,
shall be null and void." cralaw vi rtua 1aw lib rary

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 (1/2) 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 omission, of
a forced heir. For this reason, Neri v. 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 (Comia v. 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 v. 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 v.
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: chan rob1e s virtual 1aw lib rary

25
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." (Italics 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 v. Ortuzar, 89 Phil.
Reports, pp. 741 and 742: jgc:chan robles. co m.ph

"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 v. 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 may 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 v. 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 proceedings 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." cralaw virt ua1aw li bra ry

It is well to observe, at this juncture, as this Court expressly declared in Reyes v. Barretto Datu,
94 Phil. 446 (Am’d. Rec. Appeal, pp. 156, 157), that: jgc:chanroble s.com.p h

". . . 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 partition 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." cra law virt ua1aw lib ra ry

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 appellee’s 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, 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 place, granting that there was such fraud, relief therefrom can only be
obtained within 4 years from its discovery, and the record shows that this period had elapsed long
ago.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she
became of age five years later, in 1944. On that year, her cause of action accrued to contest on
the ground of fraud the court decree distributing her father’s estate and the four-year period of
limitation started to run, to expire in 1948 (Section 43, Act 190). In fact, conceding that Milagros
only became aware of the true facts in 1946 (Appellee’s Brief, p. 27), her action still became
extinct in 1950. Clearly, therefore, the action was already barred when in August 31, 1956 she
filed her counterclaim in this case contesting the decree of distribution of Bibiano Barretto’s estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant
Tirso Reyes had induced her to delay filing action by verbally promising to reconvey the properties
received by his deceased wife, Salud. There is no reliable evidence of the alleged promise, which
rests 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
26
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 v. 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
articles 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 enumerated 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 Ruiz Castro, JJ.,
concur.

Endnotes:

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

27
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.

28
xxx xxx xxx

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

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

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

On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil
Code, which says: "Any compulsory heir to whom the testator has left by any title less than the legitime belonging to
him may demand that the same be fully satisfied." Appellant also suggests that considering the provisions of the will
whereby the testator expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless
although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Article
918, which reads:

ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of
heirs insofar as it may prejudice the person disinherited; but the devices and legacies and other
testamentary dispositions shall be valid to such extent as will not impair the legitimate.

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

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

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

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

... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia legado o
mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la legitima o igual a la
misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la
ley. Cuando en el testamento se deja algo al heredero forzoso, la pretericion es incompleta: es mas

29
formularia que real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6
Manresa, 7th Ed., 1951, p. 437.)

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

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

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

Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision sea completa; que
el heredero forzoso nada reciba en el testamento. 1äwphï1.ñët

xxx xxx xxx

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

La privacion de la legitima puede ser total o parcial.

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

Again Sanchez Roman:

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

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

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

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta materia en la


doctrina clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian aquellos
30
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

31
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.

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