G.R. No. L-23079 February 27, 1970RUBEN AUSTRIA, CONSUELO
AUSTRIA-BENTA and LAURO AUSTRIA MOZO,petitioners,vs.HON. ANDRES
REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ,
BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ
CRUZ-SALONGArespondents.CASTRO,J.:On July 7, 1956 Basilia Austria
vda. de Cruz filed with the Court of First Instance of Rizal
(Special Proceedings 2457) a petition for probate,ante mortem, of
her last will and testament. The probate was opposed by the present
petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria
Mozo, and still others who, like the petitioner, are nephews and
nieces of Basilia. This opposition was, however, dismissed and the
probate of the will allowed after due hearing.The bulk of the
estate of Basilia, admittedly, was destined under the will to pass
on to the respondents Perfecto Cruz, Benita Cruz-Meez, Isagani
Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been
assumed and declared by Basilia as her own legally adopted
children.On April 23, 1959, more than two years after her will was
allowed to probate, Basilia died. The respondent Perfecto Cruz was
appointed executor without bond by the same court in accordance
with the provisions of the decedent's will, notwithstanding the
blocking attempt pursued by the petitioner Ruben Austria.Finally,
on November 5, 1959, the present petitioners filed in the same
proceedings a petition in intervention for partition alleging in
substance that they are the nearest of kin of Basilia, and that the
five respondents Perfecto Cruz, et al., had not in fact been
adopted by the decedent in accordance with law, in effect rendering
these respondents mere strangers to the decedent and without any
right to succeed as heirs.Notwithstanding opposition by the
respondent Perfecto Cruz, as executor of the estate, the courta
quoallowed the petitioners' intervention by its order of December
22, 1959, couched in broad terms, as follows: "The Petition in
Intervention for Partition filed by the above-named oppositors
[Ruben Austria, et al.,] dated November 5, 1959 is hereby
granted."In the meantime, the contending sides debated the matter
of authenticity or lack of it of the several adoption papers
produced and presented by the respondents. On motion of the
petitioners Ruben Austria, et al., these documents were referred to
the National Bureau of Investigation for examination and advice.
N.B.I. report seems to bear out the genuineness of the documents,
but the petitioners, evidently dissatisfied with the results,
managed to obtain a preliminary opinion from a Constabulary
questioned-document examiner whose views undermine the authenticity
of the said documents. The petitioners Ruben Austria, et al., thus
moved the lower court to refer the adoption papers to the
Philippine Constabulary for further study. The petitioners likewise
located former personnel of the court which appeared to have
granted the questioned adoption, and obtained written depositions
from two of them denying any knowledge of the pertinent adoption
proceedings.On February 6, 1963, more than three years after they
were allowed to intervene, the petitioners Ruben Austria, let al.,
moved the lower court to set for hearing the matter of the
genuineness of the adoption of the respondents Perfecto Cruz, et
al., by the late Basilia. Before the date set by the court for
hearing arrived, however, the respondent Benita Cruz-Meez who
entered an appearance separately from that of her brother Perfecto
Cruz, filed on February 28, 1963 a motion asking the lower court,
by way of alternative relief, to confine the petitioners'
intervention, should it be permitted, to properties not disposed of
in the will of the decedent.On March 4, 1963, the lower court heard
the respondent Benita's motion. Both sides subsequently submitted
their respective memoranda, and finally, the lower court issued an
order on June 4, 1963, delimiting the petitioners' intervention to
the properties of the deceased which were not disposed of in the
will.The petitioners moved the lower court to reconsider this
latest order, eliciting thereby an opposition, from the
respondents. On October 25, 1963 the same court denied the
petitioners' motion for reconsideration.A second motion for
reconsideration which set off a long exchange of memoranda from
both sides, was summarily denied on April 21, 1964.Hence this
petition forcertiorari, praying this Court to annul the orders of
June 4 and October 25, 1963 and the order of April 21, 1964, all
restricting petitioners' intervention to properties that were not
included in the decedent's testamentary dispositions.The
uncontested premises are clear. Two interests are locked in dispute
over the bulk of the estate of the deceased. Arrayed on one side
are the petitioners Ruben Austria, Consuelo Austria-Benta and Lauro
Austria Mozo, three of a number of nephews and nieces who are
concededly the nearest surviving blood relatives of the decedent.
On the other side are the respondents brothers and sisters,
Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz and Luz
Cruz-Salonga, all of whom heirs in the will of the deceased
Basilia, and all of whom claim kinship with the decedent by virtue
of legal adoption. At the heart of the controversy is Basilia's
last will immaculate in its extrinsic validity since it bears the
imprimatur of duly conducted probate proceedings.The complaint in
intervention filed in the lower court assails the legality of the
tie which the respondent Perfecto Cruz and his brothers and sisters
claim to have with the decedent. The lower court had, however,
assumed, by its orders in question, that the validity or invalidity
of the adoption is not material nor decisive on the efficacy of the
institution of heirs; for, even if the adoption in question were
spurious, the respondents Perfecto Cruz, et al., will nevertheless
succeed not as compulsory heirs but as testamentary heirs
instituted in Basilia's will. This ruling apparently finds support
in article, 842 of the Civil Code which reads:One who has no
compulsory heirs may dispose of by will all his estate or any part
of it in favor of any person having capacity to succeed.One who has
compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime
of said heirs.The lower court must have assumed that since the
petitioners nephews and niece are not compulsory heirs, they do not
possess that interest which can be prejudiced by a free-wheeling
testamentary disposition. The petitioners' interest is confined to
properties, if any, that have not been disposed of in the will, for
to that extent intestate succession can take place and the question
of the veracity of the adoption acquires relevance.The petitioners
nephews and niece, upon the other hand, insist that the entire
estate should descend to them by intestacy by reason of the
intrinsic nullity of the institution of heirs embodied in the
decedent's will. They have thus raised squarely the issue of
whether or not such institution of heirs would retain efficacy in
the event there exists proof that the adoption of the same heirs by
the decedent is false.The petitioners cite, as the controlling
rule, article 850 of the Civil Code which reads:The statement of a
false cause for the institution of an heir shall be considered as
not written, unless it appears from the will that the testator
would not have made such institution if he had known the falsity of
such cause.Coming closer to the center of the controversy, the
petitioners have called the attention of the lower court and this
Court to the following pertinent portions of the will of the
deceased which recite:III. Ang aking mga sapilitang tagapagmana
(herederos forzosos) ay ang aking itinuturing na mga anak na tunay
(Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita
at Isagani, na pawang may apelyidong Cruz.Kung ako ay bawian ng
Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang
maiiwan, sa kaparaanang sumusunod:A.Aking ipinamamana sa aking
nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at
Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti
ng bawa't isa at walang lamangan (en partes iguales), bilang
kanilang sapilitang mana (legiti[ma]), ang kalahati () ng aking
kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong
asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV
ng testamentong ito, ang kalahati () ng mga lagay na lupa at
palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking
yumaong ama na si Calixto Austria, at ang kalahati () ng ilang
lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa
yumao kong kapatid na si Fausto Austria.The tenor of the language
used, the petitioners argue, gives rise to the inference that the
late Basilia was deceived into believing that she was legally bound
to bequeath one-half of her entire estate to the respondents
Perfecto Cruz, et al. as the latter's legitime. The petitioners
further contend that had the deceased known the adoption to be
spurious, she would not have instituted the respondents at all the
basis of the institution being solely her belief that they were
compulsory heirs. Proof therefore of the falsity of the adoption
would cause a nullity of the institution of heirs and the opening
of the estate wide to intestacy. Did the lower court then abuse its
discretion or act in violation of the rights of the parties in
barring the petitioners nephews and niece from registering their
claim even to properties adjudicated by the decedent in her
will?Before the institution of heirs may be annulled under article
850 of the Civil Code, the following requisites must concur:First,
the cause for the institution of heirs must be stated in the
will;second, the cause must be shown to be false; andthird, it must
appear from the face of the will that the testator would not have
made such institution if he had known the falsity of the cause.The
petitioners would have us imply, from the use of the terms,
"sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana"
(legitime), that the impelling reason or cause for the institution
of the respondents was the testatrix's belief that under the law
she could not do otherwise. If this were indeed what prompted the
testatrix in instituting the respondents, she did not make it known
in her will. Surely if she was aware that succession to the
legitime takes place by operation of law, independent of her own
wishes, she would not have found it convenient to name her supposed
compulsory heirs to their legitimes. Her express adoption of the
rules on legitimes should very well indicate her complete agreement
with that statutory scheme. But even this, like the petitioners'
own proposition, is highly speculative of what was in the mind of
the testatrix when she executed her will. One fact prevails,
however, and it is that the decedent's will does not state in a
specific or unequivocal manner the cause for such institution of
heirs. We cannot annul the same on the basis of guesswork or
uncertain implications.And even if we should accept the
petitioners' theory that the decedent instituted the respondents
Perfecto Cruz, et al. solely because she believed that the law
commanded her to do so, on the false assumption that her adoption
of these respondents was valid, still such institution must
stand.Article 850 of the Civil Code, quoted above, is a positive
injunction to ignore whatever false cause the testator may have
written in his will for the institution of heirs. Such institution
may be annulled only when one is satisfied, after an examination of
the will, that the testator clearly would not have made the
institution if he had known the cause for it to be false. Now,
would the late Basilia have caused the revocation of the
institution of heirs if she had known that she was mistaken in
treating these heirs as her legally adopted children? Or would she
have instituted them nonetheless?The decedent's will, which alone
should provide the answer, is mute on this point or at best is
vague and uncertain. The phrases,"mga sapilitang
tagapagmana"and"sapilitang mana,"were borrowed from the language of
the law on succession and were used, respectively, to describe the
class of heirs instituted and the abstract object of the
inheritance. They offer no absolute indication that the decedent
would have willed her estate other than the way she did if she had
known that she was not bound by law to make allowance for
legitimes. Her disposition of the free portion of her estate (libre
disposicion) which largely favored the respondent Perfecto Cruz,
the latter's children, and the children of the respondent Benita
Cruz, shows a perceptible inclination on her part to give to the
respondents more than what she thought the law enjoined her to give
to them. Compare this with the relatively small devise of land
which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the children
of the petitioner Ruben Austria. Were we to exclude the respondents
Perfecto Cruz, et al. from the inheritance, then the petitioners
and the other nephews and nieces would succeed to the bulk of the
testate by intestacy a result which would subvert the clear wishes
of the decedent.Whatever doubts one entertains in his mind should
be swept away by these explicit injunctions in the Civil Code: "The
words of a will are to receive an interpretation which will give to
every expression some effect, rather than one which will render any
of the expressions inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent
intestacy."1Testacy is favored and doubts are resolved on its side,
especially where the will evinces an intention on the part of the
testator to dispose of practically his whole estate,2as was done in
this case. Moreover, so compelling is the principle that intestacy
should be avoided and the wishes of the testator allowed to
prevail, that we could even vary the language of the will for the
purpose of giving it effect.3A probate court has found, by final
judgment, that the late Basilia Austria Vda. de Cruz was possessed
of testamentary capacity and her last will executed free from
falsification, fraud, trickery or undue influence. In this
situation, it becomes our duty to give full expression to her
will.4At all events, the legality of the adoption of the
respondents by the testatrix can be assailed only in a separate
action brought for that purpose, and cannot be the subject of a
collateral attack.5To the petitioners' charge that the lower court
had no power to reverse its order of December 22, 1959, suffice it
to state that, as borne by the records, the subsequent orders
complained of served merely to clarify the first an act which the
court could legally do. Every court has the inherent power to amend
and control its processes and orders so as to make them conformable
to law and justices.6That the courta quohas limited the extent of
the petitioners' intervention is also within its powers as
articulated by the Rules of Court.7ACCORDINGLY, the present
petition is denied, at petitioners cost.G.R. No. L-17818 January
25, 1967TIRSO T. REYES, as guardian of the minors Azucena Flordelis
and Tirso, Jr., all surnamed Reyes y
Barretto,plaintiffs-appellants,vs.LUCIA MILAGROS
BARRETTO-DATU,defendant-appellee.Recto Law Office for
plaintiff-appealant.Deogracias T. Reyes and Associates for
defendant-appellee.REYES, J.B.L.,J.:Direct appeal from a judgment
of the Court of First Instance of Bulacan, in its Civil Case No.
1084, dismissing the complaint of appellant Tirso T. Reyes and
ordering the same to deliver to the defendant-appellee, Lucia
Milagros Barretto-Datu, the properties receivea by his deceasea
wife under the terms of the will of the late Bibiano Barretto,
consisting of lots in Manila, Rizal, Pampanga and Bulacan, valued
at more than P200,000.The decision appealed from sets the
antecedents of the case to be as follows:"This is an action to
recover one-half share in the fishpond, located in the barrio of
San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of
Title No. T-13734 of the Land Records of this Province, being the
share of plaintiff's wards as minor heirs of the deceased Salud
Barretto, widow of plaintiff Tirso Reyes, guardian of said
minors."It appears that Bibiano Barretto was married to Maria
Gerardo. During their lifetime they acquired a vast estate,
consisting of real properties in Manila, Pampanga, and Bulacan,
covered by Transfer Certificates of Title Nos. 41423, 22443, 8858,
32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and
12507/T-337.When Bibiano Barretto died on February 18, 1936, in the
City of Manila, he left his share of these properties in a will
Salud Barretto, mother of plaintiff's wards, and Lucia Milagros
Barretto and a small portion as legacies to his two sisters Rosa
Barretto and Felisa Barretto and his nephew an nieces The usufruct
o the fishpon situate i barrio Sa Roque Hagonoy, Bulacan,
above-mentioned, however, was reserved for his widow, Maria Gerardo
I the meantime Maria Gerardo was appointe administratrix. By virtue
thereof, she prepared a project of partition, which was signed by
her in her own behalf and as guardian of the minor Milagros
Barretto. Said project of partition was approved by the Court of
First Instance of Manila on November 22, 1939. The distribution of
the estate and the delivery of the shares of the heirs followed
forthwith. As a consequence, Salud Barretto took immediate
possession of her share and secured the cancellation of the
original certificates of title and the issuance of new titles in
her own name.Everything went well since then. Nobody was heard to
complain of any irregularity in the distribution of the said estate
until the widow, Maria Gerardo died on March 5, 1948. Upon her
death, it was discovered that she had executed two wills, in the
first of which, she instituted Salud and Milagros, both surnamed
Barretto, as her heirs; and, in the second, she revoked the same
and left all her properties in favor of Milagros Barretto alone.
Thus, the later will was allowed and the first rejected. In
rejecting the first will presented by Tirso Reyes, as guardian of
the children of Salud Barretto, the lower court held that Salud was
not the daughter of the decedent Maria Gerardo by her husband
Bibiano Barretto. This ruling was appealed to the Supreme Court,
which affirmed the same.1Having 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 voidab initio(not merely voidable) because the
distributee, Salud Barretto, predecessor of plaintiffs (now
appellants), was not a daughter of the spouses Bibiano Barretto and
Maria Gerardo. The nullity of the project of partition was decreed
on the basis of Article 1081 of the Civil Code of 1889 (then in
force) providing as follows: .A partition in which a person was
believed to be an heir, without being so, has been included, shall
be null and void.The courta quofurther 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
Courta quonot 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
ofheirs(without distinction between forced, voluntary or intestate
ones), and the fact that Salud happened not to be a daughter of the
testator does not preclude her being one of the heirs expressly
named in his testament; for Bibiano Barretto was at liberty to
assign the free portion of his estate to whomsoever he chose. While
the share () assigned to Salud impinged on the legitime of
Milagros, Salud did not for that reason cease to be a testamentary
heir of Bibiano Barretto.Nor does the fact that Milagros was
allotted in her father's will a share smaller than her legitime
invalidate the institution of Salud as heir, since there was here
nopreterition, or total ommission of a forced heir. For this
reason,Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not
at all applicable, that case involving an instance of preterition
or omission of children of the testator's former marriage.Appellee
contends that the partition in question was void as a compromise on
the civil status of Salud in violation of Article 1814 of the old
Civil Code. This view is erroneous, since a compromise presupposes
the settlement of a controversy through mutual concessions of the
parties (Civil Code of 1889, Article 1809; Civil Code of the
Philippines, Art. 2028); and the condition of Salud as daughter of
the testator Bibiano Barretto, while untrue, was at no time
disputed during the settlement of the estate of the testator. There
can be no compromise over issues not in dispute. And while a
compromise over civil status is prohibited, the law nowhere forbids
a settlement by the parties over the share that should correspond
to a claimant to the estate.At any rate, independently of a project
of partition which, as its own name implies, is merely a proposal
for distribution of the estate, that the court may accept or
reject, it is the court alone that makes the distribution of the
estate and determines the persons entitled thereto and the parts to
which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act
190, Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of
Court), and it is that judicial decree of distribution, once final,
that vests title in the distributees. If the decree was erroneous
or not in conformity with law or the testament, the same should
have been corrected by opportune appeal; but once it had become
final, its binding effect is like that of any other judgmentin rem,
unless properly set aside for lack of jurisdiction or fraud.It is
thus apparent that where a court has validly issued a decree of
distribution of the estate, and the same has become final, the
validity or invalidity of the project of partition becomes
irrelevant.It is, however, argued for the appellee that since the
court's distribution of the estate of the late Bibiano Barretto was
predicated on the project of partition executed by Salud Barretto
and the widow, Maria Gerardo (who signed for herself and as
guardian of the minor Milagros Barretto), and since no evidence was
taken of the filiation of the heirs, nor were any findings of fact
or law made, the decree of distribution can have no greater
validity than that of the basic partition, and must stand or fall
with it, being in the nature of a judgment by consent, based on a
compromise.Saminiada vs. Mata, 92 Phil. 426, is invoked in support
of the proposition. That case is authority for the proposition that
a judgment by compromise may be set aside on the ground of mistake
or fraud, upon petition filedin due time, where petition for
"relief was filed before the compromise agreement a proceeding, was
consummated" (cas. cit. at p. 436). In the case before us, however,
the agreement of partition was not only ratified by the court's
decree of distribution, but actually consummated, so much so that
the titles in the name of the deceased were cancelled, and new
certificates issued in favor of the heirs, long before the decree
was attacked. Hence, Saminiada vs. Mata does not apply.Moreover,
the defendant-appellee's argument would be plausible if it were
shown that the sole basis for the decree of distribution was the
project of partition. But, in fact, even without it, the
distribution could stand, since it was in conformity with the
probated will of Bibiano Barretto, against the provisions whereof
no objection had been made. In fact it was the court's duty to do
so. Act 190, section 640, in force in 1939, provided: .SEC.
640.Estate, How Administered. When a will is thus allowed, the
court shall grant letters testamentary, or letters of
administration with the will annexed, and such letters testamentary
or of administration, shall extend to all the estate of the
testator in the Philippine Islands.Such estate, after the payment
of just debts and expenses of administration,shall be disposed of
according to such will, so far as such will may operate upon it;
and the residue, if any, shall be disposed of as is provided by law
in cases of estates in these Islands belonging to persons who are
inhabitants of another state or country. (Emphasis supplied)That
defendant Milagros Barretto was a minor at the time the probate
court distributed the estate of her father in 1939 does not imply
that the said court was without jurisdiction to enter the decree of
distribution. Passing upon a like issue, this Court ruled inRamos
vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:If we are to assume
that Richard Hill and Marvin Hill did not formally intervene, still
they would be concluded by the result of the proceedings, not only
as to their civil status but as the distribution of the estate as
well. As this Court has held in Manolo vs. Paredes, 47 Phil. 938,
"The proceeding for probate is onein rem(40 Cyc., 1265) and the
court acquires jurisdiction over all persons interested, through
the publication of the notice prescribed by section 630 C.P.C.; and
any order that any be entered therein is binding against all of
them." (See alsoin reEstate of Johnson, 39 Phil. 156.) "A final
order of distribution of the estate of a deceased person vests the
title to the land of the estate in the distributees". (Santos vs.
Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no
reason why, by analogy, these salutary doctrines should not apply
to intestate proceedings.The only instance that we can think of in
which a party interested in a probate proceeding may have a final
liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or inadvertence
not imputable to negligence. Even then, the better practice to
secure relief is reopening of the same case by proper motion within
the reglementary period, instead of an independent action the
effect of which, if successful, would be, as in the instant case,
for another court or judge to throw out a decision or order already
final and executed and reshuffle properties long ago distributed
and disposed of.It is well to observe, at this juncture, as this
Court expressly declared inReyes vs. Barretto Datu, 94 Phil. 446
(Am'd Rec. Appeal, pp. 156, 157), that:... It is argued that Lucia
Milagros Barretto was a minor when she signed the partition, and
that Maria Gerardo was not her judicially appointed guardian. The
claim is not true. Maria Gerardo signed as guardian of the minor.
(Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the
project of partion that the guardianship proceedings of the minor
Lucia Milagros Barretto are pending in the court, does not mean
that the guardian had not yet been appointed; it meant that the
guardianship proceedings had not yet been terminated, and as a
guardianship proceedings begin with the appointment of a guardian,
Maria Gerardo must have been already appointed when she signed the
project of partition. There is, therefore, no irregularity or
defect or error in the project of partition, apparent on the record
of the testate proceedings, which shows that Maria Gerardo had no
power or authority to sign the project of partition as guardian of
the minor Lucia Milagros Barretto, and, consequently, no ground for
the contention that the order approving the project of partition is
absolutely null and void and may be attacked collaterally in these
proceedings.So that it is now incontestable that appellee Milagros
Barretto was not only made a party by publication but actually
appeared and participated in the proceedings through her guardian:
she, therefore, can not escape the jurisdiction of the Manila Court
of First Instance which settled her father's
estate.Defendant-appellee further pleads that as her mother and
guardian (Maria Gerardo) could not have ignored that the
distributee Salud was not her child, the act of said widow in
agreeing to the oft-cited partition and distribution was a fraud on
appellees rights and entitles her to relief. In the first place,
there is no evidence that when the estate of Bibiano Barretto was
judicially settled and distributed appellants' predecessor, Salud
Lim Boco Barretto to, knew that she was not Bibiano's child: so
that if fraud was committed, it was the widow, Maria Gerardo, who
was solely responsible, and neither Salud nor her minor children,
appellants herein, can be held liable therefor. In the second
placegranting that there was such fraud, relief therefrom can only
be obtained within 4 years from its discovery, and the record shows
that this period had elapsed long ago.Because at the time of the
distribution Milagros Barretto was only 16 years old (Exhibit 24),
she became of age five years later, in 1944. On that year, her
cause of action accrued to contest on the ground of fraud the court
decree distributing her father's estate and the four-year period of
limitation started to run, to expire in 1948 (Section 43, Act.
190). In fact, conceding that Milagros only became aware of the
true facts in 1946 (Appellee's Brief, p. 27), her action still
became extinct in 1950. Clearly, therefore, the action was already
barred when in August 31, 1956 she filed her counterclaim in this
case contesting the decree of distribution of Bibiano Barretto's
estate.In order to evade the statute of limitations, Milagros
Barretto introduced evidence that appellant Tirso Reyes had induced
her to delay filing action by verbally promising to reconvey the
properties received by his deceased wife, Salud. There is no
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: grantingarguendothat the promise
was made, the same can not bind the wards, the minor children of
Salud, who are the real parties in interest. An abdicative waiver
of rights by a guardian, being an act of disposition, and not of
administration, can not bind his wards, being null and void as to
them unless duly authorized by the proper court (Ledesma Hermanos
vs. Castro, 55 Phil. 136, 142).In resume, we hold (1) that the
partition had between Salud and Milagros Barretto in the
proceedings for the settlement of the estate of Bibiano Barretto
duly approved by the Court of First Instance of Manila in 1939, in
its Civil Case No. 49629, is not void for being contrary to either
Article 1081 or 1814 of the, Civil Code of 1889; (2) that Milagros
Barretto's action to contest said partition and decree of
distribution is barred by the statute of limitations; and (3) that
her claim that plaintiff-appellant guardian is a possessor in bad
faith and should account for the fruits received from the
properties inherited by Salud Barretto (nee Lim Boco) is legally
untenable. It follows that the plaintiffs' action for partition of
the fishpond described in the complaint should have been given due
course.Wherefore, the decision of the Court of First Instance of
Bulacan now under appeal is reversed and set aside in so far as it
orders plaintiff-appellant to reconvey to appellee Milagros
Barretto Datu the properties enumeracted in said decision, and the
same is affirmed in so far as it denies any right of said appellee
to accounting. Let the records be returned to the court of origin,
with instructions to proceed with the action for partition of the
fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of
the Office of the Register of Deeds of Bulacan, and for the
accounting of the fruits thereof, as prayed for in the complaint No
costs.
G.R. No. L-24365 June 30, 1966IN 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.x x x x x x x x x7. I give, devise, and bequeath
unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact that she
was baptized Christensen, is not in any way related to me, nor has
she been at any time adopted by me, and who, from all information I
have now resides in Egpit, Digos, Davao, Philippines, the sum of
THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency,
the same to be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the Philippine National Bank,
and paid to her at the rate of One Hundred Pesos (P100.00),
Philippine Currency per month until the principal thereof as well
as any interest which may have accrued thereon, is exhausted.x x x
x x x x x x12. I hereby give, devise and bequeath, unto my
well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs.
Bernard Daney) now residing, as aforesaid, at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all the income from the
rest, remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character, and
wheresoever situated, of which I may be possessed at my death and
which may have come to me from any source whatsoever, during her
lifetime; Provided, however, that should the said MARIA LUCY
CHRISTENSEN DANEY at anytime prior to her decease having living
issue, then and in that event, the life interest herein given shall
terminate, and if so terminated, then I give, devise, and bequeath
to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest,
remainder and residue of my property with the same force and effect
as if I had originally so given, devised and bequeathed it to her;
and provided, further, that should the said MARIA LUCY CHRISTENSEN
DANEY die without living issue, then, and in that event, I give,
devise and bequeath all the rest, remainder and residue of my
property one-half (1/2) to my well-beloved sister, Mrs. CARRIE
LOUISE C. BORTON, now residing at No. 2124, Twentieth Street,
Bakersfield, California, U.S.A., and one-half (1/2) to the children
of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol
F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond
Christensen, of Manhattan Beach, California, U.S.A., share and
share alike, the share of any of the three above named who may
predecease me, to go in equal parts to the descendants of the
deceased; and, provided further, that should my sister Mrs. Carol
Louise C. Borton die before my own decease, then, and in that
event, the share of my estate devised to her herein I give, devise
and bequeath to her children, Elizabeth Borton de Trevio, of Mexico
City Mexico; Barbara Borton Philips, of Bakersfield, California,
U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or
to the heirs of any of them who may die before my own decease,
share and share alike.The trial court ruled, and appellee now
maintains, that there has been preterition of Helen Garcia, a
compulsory heir in the direct line, resulting in the annulment of
the institution of heir pursuant to Article 854 of the Civil Code,
which provides:ART. 854. The preterition or omission of one, some,
or all of the compulsory heirs in the direct line, whether living
at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.On
the other hand, appellant contends that this is not a case of
preterition, but is governed by Article 906 of the Civil Code,
which says: "Any compulsory heir to whom the testator has left by
any title less than the legitime belonging to him may demand that
the same be fully satisfied." Appellant also suggests that
considering the provisions of the will whereby the testator
expressly denied his relationship with Helen Garcia, but left to
her a legacy nevertheless although less than the amount of her
legitime, she was in effect defectively disinherited within the
meaning of Article 918, which reads:ART. 918. Disinheritance
without a specification of the cause, or for a cause the truth of
which, if contradicted, is not proved, or which is not one of those
set forth in this Code, shall annul the institution of heirs
insofar as it may prejudice the person disinherited; but the
devices and legacies and other testamentary dispositions shall be
valid to such extent as will not impair the legitimate.Thus,
according to appellant, under both Article 906 and 918, Helen
Garcia is entitled only to her legitime, and not to a share of the
estate equal that of Lucy Duncan as if the succession were
intestate.Article 854 is a reproduction of Article 814 of the
Spanish Civil Code; and Article 906 of Article 815. Commenting on
Article 815, Manresa explains:Como dice Goyena, en el caso de
pretericion puede presumirse ignorancia o falta de memoria en el
testador; en el de dejar algo al heredero forzoso no.Este no se
encuentra plivado totalmente de su legitima: ha recibido por
cualquir titulo una porcion de los bienes hereditarios, porcion que
no alcanza a completar la legitima, pero que influeye poderosamente
en el animo del legislador para decidirle a adoptar una solucion
bien diferente de la sealada para el caso de pretericion.El
testador no ha olvidado por completo al heredero forzoso; le ha
dejado bienes; pero haciendo un calculo equivocado, ha repartido en
favor de extraos o en favor de otros legitimarios por via de legado
donacion o mejora mayor cantidad de la que la ley de consentia
disponer. El heredero forzoso no puede perder su legitima, pero
tampoco puede pedir mas que la misma. De aqui su derecho a reclamar
solamente lo que le falta; al complemento de la porcion que
forzosamente la corresponde.... Dejar el testador por cualquier
titulo, equivale a disponer en testamento por titulo de herencia
legado o mejora, y en favor de legitimarios, de alguna cantidad o
porcion de bienes menos que la legitima o igual a la misma. Tal
sentido, que es el mas proprio en al articulo 815, no pugna tampoco
con la doctrina de la ley.Cuando en el testamento se deja algo al
heredero forzoso, la pretericion es incompleta: es mas formularia
que real. Cuando en el testamento nada se deja el legitimario, hay
verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)On the
difference between preterition of a compulsory heir and the right
to ask for completion of his legitime, Sanchez Roman says:La
desheredacion, como expresa, es siempre voluntaria; la pretericion
puede serlo pero se presume involuntaria la omision en que consiste
en cuanto olvida o no atiende el testador en su testamento a la
satisfaccion del derecho a la legitima del heredero forzoso
preterido, prescindiendo absoluta y totalmente de ely no
mencionandole en ninguna de sus disposiciones testamentarias, o
noinstituyendole en parte alguna de la herencia,ni por titulo de
heredero ni por el de legatar o aunque le mencionarao 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
depretericion,sino de complementode 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
accionadsuplementum, 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, norassigning to
him some part of the properties. Manresa continues:Se necesita pues
(a) Que la omision se refiera a un heredero forzoso; (b) Que la
omision sea completa; que el heredero forzoso nada reciba en el
testamento.1wph1.tx x x x x x x x xB.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 yano son el caso ni los
efectos de la pretericion,que anula la institucion, sino
simplemente los del suplemento necesariopara 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, atitulo de heredero? In other words,
should he be recognized or referred to in the will as heir? This
question is pertinent because in the will of the deceased Edward E.
Christensen Helen Garcia is not mentioned as an heir indeed her
status as such is denied but is given a legacy of P3,600.00.While
the classical view, pursuant to the Roman law, gave an affirmative
answer to the question, according to both Manresa (6 Manresa 7th
3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 p. 937), that view
was changed by Article 645 of the "Proyecto de Codigo de 1851,"
later on copied in Article 906 of our own Code. Sanchez Roman, in
the citation given above, comments as follows:RESPECTO DEL
COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo en esta materia en
la doctrina clasica del Derecho romano y patrio (2); pero con
alguna racional modificacion. Concedian aquellos precedentes
legales al heredero forzoso, a quien no se le dejaba portitulode
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 laquerella 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
estecaracter, y solo cuando era instituido heredero en parte o
cantidad inferior a lo que le correspondiera porlegitima, 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 851se apartade este criterio estricto y se ajusta a la
unica necesidad que le inspira cual es la de que secompletela
legitima del heredero forzoso, a quienpor cualquier titulose haya
dejado menos de lo que le corresponda, y se le otorga tan solo el
derecho de pedir elcomplementode 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 dejadode menosde la
legitima al heredero forzoso, lo haya sidoen el testamento, o sea
por disposicion del testador, segun lo revela el texto del
articulo, "el heredero forzoso a quienel testadorhaya dejado,etc.,
esto es por titulo de legado o donacionmortis causaen 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
inNeri, 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.
G.R. No. L-47799 May 21, 1943Administration of the estate of
Agripino Neri y Chavez. ELEUTERIO NERI, ET
AL.,petitioners,vs.IGNACIA AKUTIN AND HER
CHILDREN,respondents.Ozamis and Capistrano for petitioners.Gullas,
Leuterio, Tanner and Laput for respondents.MORAN,J.:This is a case
where the testator in his will left all his property by universal
title to the children by his second marriage, the herein
respondents, with preterition of the children by his first
marriage, the herein petitioner. This Court annulled the
institution of heirs and declared a total intestacy.A motion for
reconsideration has been filed by the respondents on the ground (1)
that there is no preterition as to the children of the first
marriage who have received their shares in the property left by the
testator, and (2) that, even assuming that there has been a
preterition, the effect would not be the annulment of the
institution of heirs but simply the reduction of the bequest made
to them.1. The findings of the trial court and those of the Court
of Appeals are contrary to respondents' first contention. The
children of the first marriage are Eleuterio, Agripino, Agapita,
Getulia (who died a little less than eight years before the death
of her father Agripino Neri, leaving seven children), Rosario and
Celerina.As to Eleuterio, the trial court said that "it is not,
therefore, clear that Eleuterio has received his share out of the
properties left by his father." It is true that Eleuterio appears
to have received, as a donation from his father, parcel of land No.
4, but the question of whether there has been a donation or not is
apparently left for decision in an independent action, and to that
effect Ignacia Akutin has been appointed special administratrix for
the purpose of instituting such action.With respect to Agripino and
Agapita, the parcels of land which they have occupied, according to
the trial Court, "are a part of public land which had been occupied
by Agripino Neri Chaves, and, therefore, were not a part of the
estate of the latter."Concerning Getulia who died about eight years
before the death of her father Agripino Neri, the trial Court found
that "neither Getulia nor her heirs received any share of the
properties."And with respect to Rosario and Celerina, the trial
Court said that "it does not appear clear, therefore, that Celerina
and Rosario received their shares in the estate left by their
father Agripino Neri Chaves."This is in connection with the
property, real or personal, left by the deceased. As to money
advances, the trial Court found:It is contented, furthermore, that
the children of Agripino Neri Chaves in his first marriage received
money from their father. It appears that Nemesio Chaves is indebted
in the amount of P1,000; Agripino, in the amount of P500 as appears
in Exhibits 14 and 15; Getulia, in the amount of P155 as appears in
Exhibit 16, 17, and 18; Celerina in the amount of P120 as appears
in Exhibit 19, 19-A and 19-B.From these findings of the trial Court
it is clear that Agapita, Rosario and the children of Getulia had
received from the testator no property whatsoever, personal, real
or in cash.But clause 8 of the will is invoked wherein the testator
made the statement that the children by his first marriage had
already received their shares in his property excluding what he had
given them as aid during their financial troubles and the money
they had borrowed from him which he condoned in the will. Since,
however, this is an issue of fact tried by the Court of First
Instance, and we are reviewing the decision of the Court of Appeals
upon a question of law regarding that issue, we can rely only upon
the findings of fact made by the latter Court, which are as
follows:Since all the parcels that corresponded to Agripino Neri y
Chaves are now in the administrator's possession, as appears in the
inventory filed in court, it is clear that the property of the
deceased has remained intact and that no portion thereof has been
given to the children of the first marriage.x x x x x x x x xIt is
stated by the court and practically admitted by the appellants that
a child of the first marriage named Getulia, or her heirs after her
death, did not receive any share of the property of her father.It
is true that in the decision of the Court of Appeals there is also
the following paragraphs:As regards that large parcel of land
adjoining parcel No. 1, it is contended that after the court had
denied the registration thereof. Agripino Neri y Chaves abandoned
the said land and that later on some of the children of the first
marriage possessed it, thereby acquiring title and interest therein
by virtue of occupation and not through inheritance. It is not true
that this parcel containing 182.6373 hectares is now assessed in
the names of some of the children of the first marriage, for as
shown on Tax Declaration No. 9395, Exhibit 11-g, the owners of the
property are Agapita Neri de Chaves y Hermanos. Apparently, the
said land is still claimed to be the property not only of the
children of the first marriage but also of those of the second
marriage.This paragraph is but a corroboration of the finding made
by the Court of Appeals that no property has ever been advanced by
the testator to the children by his first marriage. The large
parcel of land adjoining parcel No. 1 was alleged by the children
of the second marriage to have been advanced by the testator to the
children by his first marriage; but the Court of Appeals belied
this claim. "It is not true," says that Court, "that this parcel
containing 182.6373 hectares is now assessed in the names of some
of the children of the first marriage, for as shown on Tax
Declaration No. 9395, Exhibit 11-g, the owners of the property are
Agapita Neri de Chaves y Hermanos," that is, the children of both
marriages. And the Court of Appeals added that "apparently, the
said land is still claimed to be the property not only of the
children of the first marriage but also of those of the second
marriage," which is another way of stating that the property could
not have been advanced by the testator to the children by the first
marriage would not lay a claim on it.We conclude, therefore, that
according to the findings of fact made by the Court of Appeals, 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 all his property by
universal title to the children by his second marriage, he left
nothing to them or, at least, some of them. This is, accordingly, a
case of preterition governed by article 814 of the Civil Code,
which provides that the institution of heirs shall be annulled and
intestate succession should be declared open.2. Upon the second
question propounded in the motion for reconsideration, respondents
seem to agree that article 814 of the Civil Code is the law
applicable but, in their discussion as to the effect of
preterition, they confuse article 814 with articles 817 and 851 and
other articles of the Civil Code. These three articles read:ART.
814. The preterition of one or of all of the forced heirs in the
direct line, whether living at the execution of the will or born
after the death of the testator, shall annul the institution of
heirs; but the legacies and betterments shall be valid in so far as
they are not inofficious.The preterition of the widower or widow
does not annul the institution; but the person omitted shall retain
all the rights granted to him by articles 834, 835, 836, and 837 of
this Code.ART. 817. Testamentary dispositions which diminish the
legitimate of the forced heirs shall be reduced on petition of the
same in so far as they are inofficious or excessive.ART. 851.
Disinheritance made without a statement of the cause, or for a
cause the truth of which, if contested, is not shown, or which is
not one of those stated in the four following articles, shall annul
the institution of heirs in so far as it is prejudicial to the
disinherited person; but the legacies, betterments, and other
testamentary dispositions shall be valid in so far as they are not
prejudicial to said legitime.The following example will make the
question clearer: The testator has two legitimate sons, A and B,
and in his will he leaves all his property to A, with total
preterition of B. Upon these facts, shall we annul entirely the
institution of heir in favor of A and declare a total intestacy, or
shall we merely refuse the bequest left A, giving him two-thirds,
that is one third of free disposal and one-third of betterments,
plus one-half of the other third as strict legitime, and awarding B
only the remaining one-half of the strict legitime? If we do the
first, we apply article 814; if the second, we apply articles 851
or 817. But article 851 applies only in cases of unfounded
disinheritance, and all are agreed that the present case is not one
of disinheritance but of preterition. Article 817 is merely a
general rule inapplicable to specific cases provided by law, such
as that of preterition or disinheritance. The meaning of articles
814 and 851, their difference and philosophy, and their relation to
article 817, are lucidly explained by Manresa in the following
manner:Cuando la legitima no es usufructuria, como ocurre en los
demas casos, la pretericion no puede menos de alterar esencialmente
la institucion de heredero. Esta ha de anularse, pero en todo o en
parte, esto es, solo en cuanto perjudique el derecho del
legitimario preterido? El articulo 814 opta por la primer solucion,
ya que hemos de atenermos estrictmente al testo de la ley; mientras
que el articulo 851, en casos anlogos, opta por la segunda.En
efecto; la desheredacion sin justa causa no produce el efecto de
desheredar. El heredero conserva derecho asu legitima,pero nada mas
que a su legitima. Los legados, las merjoras, si las hay, y aun la
institucion de heredero, son validas en cuanto no perjudiquen al
heredero forzoso.La diferencia se notara perfectamente con un
ejemplo. Un solteron, sin decendientes ni ascendientes legitimos,
hace testamento instituyendo por heredero a un pariente lejano.
Despues reconoce un hijo natural, o se casa y tiene descendencia, y
muere sin modificar su disposicion testamentaria. A su muerte, el
hijo natural, o los legitimos, fundadose en la nulidad total de la
institucion, con arreglo al articulo 814, piden toda la herencia.
En el caso del articulo 851 solo podrian podrian pedir su
legitima.Preterdos,adquieren derecho a todo;desheredados,solo les
corresponde un tercio o dos tercios, segun el caso.En el fondo la
cuestion es indentica. El testador puede siempre disponer a su
arbitrio de la parte libre. El legitimario, contra la voluntad
expresa del testdor, solo tiene derecho a su legitima. Preterido o
desheredado sin justa causa la legitima. Preterido o desheredado
sin justa causa la legitma es suya. Desheredado o preterido, la
porcion libre no le corresponde, cuando el testador la asigna a
otro. Logicamente no cabe que el legitmario, en caso de
pretericion, reciba todos los bienes cuando el testador haya
dispuesto de ellos a titulo deherencia,y no cuando haya dispuesto
del tercio lebre a titulo de legado.Cual es la razon de esta
differencia? En la generalidad de los casos puede fundarse el
precepto en la presunta voluntad del testador. Este, al desheredar,
revela que existe alguna razon a motivo que le impulsa a obrar asi;
podra no ser bastante para privar al heredero de su legitima, pero
siempre ha de estimarse sufficiente para privarle del resto de la
herencia, pues sobre esta no puede pretender ningun derecho el
desheredad. El heredero preterido no ha sido privado expresamente
de nada; el testador, en los casos normales, obra si por descuido o
por error. Hemos visto un testamento en el que no se institula
heredera a una hija monja, por creer la testadora que no podia
heredar. En otros caos se ignora la existencia de un descendiente o
de un ascendiente. Cuando el preterido es una persona que ha nacido
despues de muerto el testador o despues de hecho el testamento, la
razon es aun mas clara; la omision ha de presumirse involuntaria;
el testador debe suponerse que hubiera instituido heredero a esa
persona si hubiera existido al otorgarse el testamento, y no solo
en cuanto a la legitima, sino en toda la herencia, caso de no haber
otros herederos forzosos, y en iguales terminos que los demas
herederos no mejorados de un mode expreso.La opinion contraria
puede tambien defederse, suponiendo que la ley anula el titulo de
heredero, mas no en absoluto la participacion en el caudal; que asi
como al exceptuar la mejora se refiere a todo el tercio o a la
parte de el que haya distribuido el causante, al exceptuar los
legados se refierse a la parte libre de que haya dispuesto el mismo
testador, considerando como un simple legatario de esa porcion a la
persona a quien el testador designo como heredero. Abonaria esta
solucion el articulo 817, al declarar que las disposiciones
testamentaria que menguan la legitima de los herederos forzosos han
de reducirse en cuanto fueren inoficiosas, pues amparado en este
articulo el heredero voluntario, puede pretender que la disposicion
a su favor sea respetada en cuato no perjudique a las legitimas.La
jurisprudencia no ha resuelto de frente esta cuestion, porque no se
le ha presentado en los terminos propuestos; pero ha demonstrado su
criterio.Hemos citado las Resoluciones de la Direccion de 30 de
octubre de 1896 y de 20 de mayo de 1893. En la primera se decide
con valentia, con arreglo al texto expreso del articulo 814; la
institucion de heredero se anula en absoluto, y se abre para toda
la herencia la succesion intestada. En la segunda se rehuye la
cuestion, fundandose en circunstancias secundarias. En el articulo
siguiente examinaremos la sentencia de 16 de enero de
1895.Lainterpretacion que rectamente se deprende del art 814, es la
de que solo valen, y eso en cuanto no sean inoficiosas, las
disposiciones hechas a titulo de legado a mejora. En cuanto a la
institucion de heredero, se anula. Lo que se anula deja de existir,
en todo, o en parte?No se aade limitacion alguna, como en el
articulo 851, en el que se expresa que se anulara a institucion de
heredero en cuanto perjudique a la legitima del desheredado.Debe,
pues, entenderse que la anulacion es completa o total, y que este
articulo, como especial en el caso que le motiva, rige con
preferencia al 817.(6 Manresa, 3.a ed., pags. 351-353.) (Emphasis
supplied).The following opinion of Sanchez Roman is to the same
effect and dispels all possible doubt on the matter:La consecuencia
de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es
la apertura de la sucesion entestada,total o parcial.Sera total,
cuando el testador que comete la pretericion, hubiere dispuesto de
todos los bienes por titulo universal de herencia en favor de los
hrederos instituidos, cuya institucion se anula, porque asi lo
exige la generalidad del precepto legal del articulo 814, al
determinar, como efecto de la pretericion, el de que "anularia la
institucion de heredero". Cierto es que la preericion esta
intorducida, como remedio juridico, por sus efectos, en nombre y
para garantia de la intergridad de la legitima de los herederos
forzosos y como consecuencia del precepto del 813, de que "el
testador no podra privar a los herederos de su legitima, sino en
los casos expresamente determinados por la ley", que son los de
desheredacion con justa causa.Cierto es, tambien, que en la
desheredacion es muy otro el criterio del Codigo y que su formula
legal, en cuanto a sus efectos, es de alcance mas limitado, puesto
que, conforme al articulo 851, la desheredacion hecha sin
condiciones de validez, "anulara la institucion de heredero", lo
mismo que la pretericion, pero solo "en cuanto perjudique la
desheredado de modo ilegal e ineficaz; salvedad o limitacion de los
efectos de nulidad de la institucion de los efectos de nulidad de
la institucion hecha en el testmento, que no existe, segun se ha
visto en el 814, por el que se declara, en forma general e
indistinta, que anulara la institucion de heredero sin ninguna
atencuacion respecto de que perjudique o no, total o parcialmente,
la cuantia de la legitima del heredero forzoso en linea recta,
preterido.El resultado de ambos criterios y formulas legales,
manifestamente distintas, tiene que ser muy diverso. En el caso de
la pretericion, propiamente tal o total pues si fuera parcial y se
la dejara algo al heredero forzoso por cualquier titulo, aunque see
algo no fuere suficiente al pago de sus derechos de legitima, no
seria caso depretericion,regulado por el articulo 814, sino de
complemento, regido por el 815 y la institucion no se anularia sino
que se modificaria o disminuiria en lo necesario para dicho
complente o de institucion de heredero en toda la herencia, al
anularse la institucion, por efecto de la preterido o preteridos,
respecto de toda la herencia, tambien; mientras qeu en el caso de
desheredacion y de institucion en la totalidad de la herencia,
tambien; mientras que en el caso de desheredacion y de institucion
en la totalidad de la herencia a favor de otra persona, solo se
anulara en parte precisa pra no perjudicar la legitima del
deshersado, que aun siendo en este caso lalata,si no hubo mejoras,
porque no se establecieron o porque los intituidos eran herederos
voluntarios, dejaria subsistente la institucion en la poarte
correspoondiente al tercio de libre disposicion. Asi es que los
preteridos, en el supuesto indicado, sucedenabintestatoen todo, en
concurrencia conlos demas herederos forzosos o llamados pro la ley
alabintestato;los desheredados,unicamente en dos tercios o en uno o
en uno tan solo, en la hipotesis de haberse ordernado mejoras.En
cambio, ni por la desheredacion ni por la pretericion pierde su
fuerza el testamento, en cuanto a dicho tercio libre, is se trata
dedescendientes; o la mitad, si se trata de ascendientes, ya
desheredados, ya preteridos, proque, ni por el uno ni por el otro
medio, se anula mas que la institucion de heredero, en general, y
totalmente por la pretericion, y solo en cuanto perjudique a la
legitima del desheredado por la desheredacion; pero subsistiendo,
en ambos casos, todas acquellas otras disposiciones que no se
refeiren a la institucion de heredero y se hallen dentro del limite
cuantitativo del tercio o mitad de libre disposicion, segun que se
trate de descendientes o ascendientes, preteridos o desheredados.La
invocacion del articulo 817 para modificar estos efectos de la
pretericion, procurando limitar la anulacion de la institucion de
herederos solo en cuanto perjudique a la legitima, fundadose en que
dicho articulo establece que "las disposiciones testamentarias que
menguan la legitma de los herederos forzosos se reduciran, a
peticion de estos, en lo que fueren inoficiosas o excesivas," no es
aceptable ni puede variar acquellos resultados, porque es un
precepto decaracter generalen toda otra clase de dsiposiciones
testamentarias que produzcan el efecto de menguar la legitima, que
no puede anteponerse, en su aplicacion, a las deindole especialpara
sealar los efectos de la pretericion o de la desheredacion,
regulados privativa y respectivamente por los articulos 814 y
851.No obstante la pretericion, "valdran las mandas y legados en
cuanto no sean inoficiosas." El texto es terminante y no necesita
mayor explicacion, despues de lo dicho, que su propia letra, a no
ser para observar que constituye una confimacion indudable de los
efectos de la pretericion, en cuanto alcanzansolo, pero
totalmente,a la anulacion de la institucion de heredero, pero no a
la de las mandas y mejoras en cuanto no sean preteridos;
calficativo de tales, como sinonimo legal deexcessivas,que en otros
articulos, como el 817, establece la ley. (6 Sanchez Roman, Volumen
2.o pags. 1140-1141.)These comments should be read with care if we
are to avoid misunderstanding. Manresa, for instance, starts
expounding the meaning of the law with an illustration. He says
that in case of preterition (article 814). the nullity of the
institution of heirs is total, whereas in case of disinheritance
(article 851), the nullity is partial, that is, in so far as the
institution affects the legitime of the disinherited heirs.
"Preteridos, adquieren derecho atodo;desheredados, solo les
corresponde un tercio o dos tercios, segun el caso." He then
proceeds to comment upon the wisdom of the distinction made by law,
giving two views thereon. He first lays the view contrary to the
distinction made by law, then the arguments in support of the
distinction, and lastly a possible defense against said arguments.
And after stating that the Spanish jurisprudence has not as yet
decided squarely the question, with an allusion] to two resolutions
of the Spanish Administrative Direction, one in favor of article
814 and another evasive, he concludes that the construction which
may rightly be given to article 814 is that in case of preterition,
the institution of heirs is nullin totowhereas in case of
disinheritance the nullity is limited to that portion of the
legitime of which the disinherited heirs have been illegally
deprived. He further makes it clear that in cases of preterition,
the property bequeathed by universal titled to the instituted heirs
should not be merely reduced according to article 817, but instead,
intestate succession should be opened in connection therewith under
article 814, the reason being that article 814, "como especial en
el caso que le motiva, rige con preferencia al 817." Sanchez Roman
is of the same opinion when he said: "La invocacion del articulo
817 para modificar estos efectos de la pretecion, procurando
limitar la anulacion de la institucion de heredero solo en cuanto
perjudque a la legitima, fundandose en que dicho articulo establece
que "las disposiciones testmentarias que menguan la legitima de los
herederos forzosos se fueren inoficisosas o excesivas," no es
aceptable ni puede variar aquellos resultados, porque es un
precepto decaracter generalen toda otra clase de disposiciones
testmentarias que produzcan el efecto de menguar la legitima, que
no puede anteponerse, en su aplicacion, a las deindole especialpara
sealar los efectos de la pretericon o de la desheredacion,
regulados privativa y respectivamente por los articulos 814 y
851.Of course, the annulment of the institution of heirs in cases
of preterition does not always carry with it the ineffectiveness of
the whole will. Neither Manresa nor Sanchez Roman nor this Court
has ever said so. If, aside from the institution of heirs, there
are in the will provisions leaving to the heirs so instituted or to
other persons some specific properties in the form of legacies
ormejoras, such testamentary provisions shall be effective and the
legacies andmejorasshall be respected in so far as they are not
inofficious or excessive, according to article 814. In the instant
case, however, no legacies ormejorasare provided in the will, the
whole property of the deceased having been left by universal title
to the children of the second marriage. The effect, therefore, of
annulling the institution of heirs will be necessarily the opening
of a total intestacy.But the theory is advanced that the bequest
made by universal titled in favor of the children by the second
marriage should be treated aslegadoandmejoraand, accordingly, it
must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of articles 814 and
851 of the Civil Code. If every case of institution of heirs may be
made to fall into the concept of legacies and betterments reducing
the bequest accordingly, then the provisions of articles 814 and
851 regarding total or partial nullity of the institution, would be
absolutely meaningless and will never have any application at all.
And the remaining provisions contained in said article concerning
the reduction of inofficious legacies or betterments would be a
surplusage because they would be absorbed by article 817. Thus,
instead of construing, we would be destroying integral provisions
of the Civil Code.The destructive effect of the theory thus
advanced is due mainly to a failure to distinguish institution of
heirs from legacies and betterments, and a general from a special
provision. With reference to article 814, which is the only
provision material to the disposition of this case, it must be
observed that the institution of heirs is therein dealt with as a
thing of separate and distinct from legacies or betterment. And
they are separate and distinct not only because they are distinctly
and separately treated in said article but because they are in
themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy refers to
specific property bequeathed by a particular or special title. The
first is also different from a betterment which should be made
expressly as such (article 828). The only instance of implied
betterment recognized by law is where legacies are made which
cannot be included in the free portion (article 828). But again an
institution of heirs cannot be taken as a legacy.It is clear,
therefore, that article 814 refers to two different things which
are the two different objects of its two different provisions. One
of these objects cannot be made to merge in the other without
mutilating the whole article with all its multifarious connections
with a great number of provisions spread throughout the Civil Code
on the matter of succession. It should be borne in mind, further,
that although article 814 contains who different provisions, its
special purpose is to establish a specific rule concerning a
specific testamentary provision, namely, the institution of heirs
in a case of preterition. Its other provision regarding the
validity of legacies and betterments if not inofficious is a mere
reiteration of the general rule contained in other provisions
(articles 815 and 817) and signifies merely that it also applies in
cases of preterition. As regards testamentary dispositions in
general, the general rule is that all "testamentary disposition
which diminish the legitime of the forced heirs shall be reduced on
petition of the same in so far as they are inofficous or excessive"
(article 817). But this general rule does not apply to the specific
instance of a testamentary disposition containing an institution of
heirs in a case of preterition, which is made the main and specific
subject of article 814. In such instance, according to article 814,
the testamentary disposition containing the institution of heirs
should be not only reduced but annulled in its entirety and all the
forced heirs, including the omitted ones, are entitled to inherit
in accordance with the law of intestate succession. It is thus
evident that, if, in construing article 814, the institution of
heirs therein dealt with is to be treated as legacies or
betterments, the special object of said article would be destroyed,
its specific purpose completely defeated, and in that wise the
special rule therein established would be rendered nugatory. And
this is contrary to the most elementary rule of statutory
construction. In construing several provisions of a particular
statute, such construction shall be adopted as will give effect to
all, and when general and particular provisions are inconsistent,
the latter shall prevail over the former. (Act No. 190, secs. 287
and 288.)The question herein propounded has been squarely decided
by the Supreme Court of Spain in a case wherein a bequest by
universal title was made with preterition of heirs and the theory
was advanced that the instituted heirs should be treated
aslegatarios. The Supreme Court of Spain said:El articulo 814, que
preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna
favorable a la persona instituida en el sentido antes expuesto, aun
cuando parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho sino la
suposicion de que el hecho o el acto no se ha realizado, debiendo,
por lo tanto, procederse sobre tal base o supuesto, y
consiguientemente, en un testmento donde fate la institucion, es
obligado llamar a los herederos forzosos en todo caso, como habria
que llamar a los de otra clase, cuando el testador no hubiese
distribuido todos sus bienes en legados, siendo tanto mas obligada
esta consecuencia legal cuanto que, en materia de testamentos,
sabido es, segun tiene declarado la jurisprudencia, con repeticion,
que no basta que sea conocida la voluntad de quein testa si esta
voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz,por lo que constituiria una
interpertacion arbitraria, dentro del derecho positivo, reputar
como legatario a un heredero cuya institucion fuese anulada con
pretexto de que esto se acomodaba mejor a la voluntad del
testador,pues aun cuando asi fuese, sera esto razon para modificar
la ley, peo que no autoriza a una interpretacion contraria a sus
terminos y a los principios que informan la testamnetificaion, pues
no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay rason para convertir este juico en regla de
interpretacion, desvirtuando y anulando por este procedimiento lo
que el legislator quiere establecer. (6 Sanchez Roman, Volumen 2.o,
p. 1138.)It is maintained that the word "heredero" under the Civil
Code, is not synonymous with the term "heir" under the Code of
Civil Procedure, and that the "heir" under the latter Code is no
longer personally liable for the debts of the deceased as was the
"heredero" under the Civil Code, should his acceptance be pure and
simple, and from all these the conclusion is drawn that the
provisions of article 814 of the Civil Code regarding the total
nullity of the institution of heirs has become obsolete. This
conclusion is erroneous. It confuses form with substance. It must
be observed, in this connection, that in construing and applying a
provision of the Civil Code, such meaning of its words and phrases
as has been intended by the framers thereof shall be adopted. If
thus construed it is inconsistent with the provisions of the Code
of Civil Procedure, then it shall be deemed repealed; otherwise it
is in force. Repeals by implication are not favored by the courts
and when there are two acts upon the same subject, effect should be
given to both if possible (Posadasvs.National City Bank, 296 U. S.,
497). The word "heir" as used in article 814 of the Civil Code may
not have the meaning that it has under the Code of Civil Procedure,
but this in no wise can prevent a bequest from being made by
universal title as is in substance the subject-matter of article
814 of the Civil Code. Again, it may also be true that heirs under
the Code of Civil Procedure may receive that bequest only after
payment of debts left by the deceased and not before as under the
Civil Code, but this may have a bearing only upon the question as
to when succession becomes effective and can in no way destroy the
fact that succession may still be by universal or special title.
Since a bequest may still be made by universal title and with
preterition of forced heirs, its nullity as provided in article 814
still applies there being nothing inconsistent with it in the Code
of Civil Procedure. What is important and is the basis for its
nullity is the nature and effect of the bequest and not its
possible name nor the moment of its effectiveness under the Code of
Civil Procedure.Furthermore, there were in the Code of Civil
Procedure sections Nos. 755 and 756 which read:SEC. 755.Share of
child born after making will. When a child of a testator is born
after the making of a will, and no provision is therein made for
him, such child shall have the same share in the estate of the
testator as if he had died intestate; and share of such child shall
be assigned to him as in cases of intestate estates, unless it is
apparent from the will that it was the intention of the testator
that no provision should be made for such child.SEC. 756.Share of
child or issue of child omitted from will. When a testator omits to
provide in his will for any of his children, or for issue of a
deceased child, and it appears that such omission was made by
mistake, or accident, such child, or the issue of such child, shall
have the same share in the estate of the testator as if he had died
intestate, to be assigned to him as in the case of intestate
estates.It is these provisions of the Code of Civil Procedure that
have affected substantially articles 814 and 851 of the Civil Code,
but they have been expressly repealed by Act No. 2141, section 1 of
which read as follows:Sections seven hundred and fifty-five, seven
hundred and fifty-six, seven hundred and fifty-seven, seven hundred
and fifty-eight, and seven hundred and sixty of Act Numbered One
hundred and ninety, entitled `An Act providing a Code of Procedure
in Civil Actions and Special Proceedings in the Philippine Islands
are hereby repealedand such provisions of the Civil Code as may
have been amended or repealed by said sections are hereby restored
to full force and effects. (Emphasis ours.)Among the provisions of
the Civil Code which are thus expressly restored to full force are
undoubtedly articles 814 and 851. There can be no possible doubt,
therefore, that those two articles are in force.Article 1080 of the
Civil Code that is also invoked deserves no consideration except
for the observation that it has no relevancy in the instant
case.Our attention is directed to the case ofEscuin vs. Escuin(11
Phil., 332). We have never lost sight of the ruling laid down in
that case which has been reiterated inEleazar vs. Eleazar(37 Off.
Gaz., p. 1782). In the Escuin case, the deceased left all his
property to his natural father (not a forced heir) and his wife
with total preterition of his father and wife. Without
reconsidering the correctness of the ruling laid down in these two
cases, we will note that the doctrine stands on facts which are
different from the facts in the present case. There is certainly a
difference between a case of preterition in which the whole
property is left to a mere friend and a case of preterition in
which the whole property is left to one or some forced heirs. If
the testamentary disposition be annulled totally in the first case,
the effect would be a total deprivation of the friend of his share
in the inheritance. And this is contrary to the manifest intention
of the testator. It may fairly be presumed that, under such
circumstances, the testator would at leave give his friend the
portion of free disposal. In the second case, the total nullity of
the testamentary disposition would have the effect, not of
depriving totally the instituted heir of his share in the
inheritance, but of placing him and the other forced heirs upon the
basis of equality. This is also in consonance with the presumptive
intention of the testator. Preterition, generally speaking, is due
merely to mistake or inadvertence without