[G.R. No. 8927. March 10, 1914. ] ASUNCION NABLE JOSE ET AL., Plaintiffs-Appellants, v.

MARIA IGNACIA USON ET AT SYLLABUS 1. WILLS; INTERPRETATION; SUCCESSION OF SISTERS AND NIECES. The following clauses appeared in a will. It was held that the living sisters and the children of the deceased sisters take per capita and in equal parts. The question involved in this appeal arises from the interpretation of the first and second clauses of a codicil to the will of Filomena Uson. They read as follows:jg "First. I declare that all the property which belongs to me as conjugal property, referred to in my said testament, shall be the property of my aforesaid husband, Don Rafael Sison; in case all or part of said property exists at my husbands death, it is my will that at his death my sisters and nieces hereinafter named succeed him as heirs. "Second. I declare to be my sisters in lawful wedlock the persons named Doa Antonia Uson, now deceased, who has left two daughters called Maria Rosario, widow, of Estanislao Lengson; Ignacia Uson, married to Don Vicente Puzon; Eufemia Uson, now deceased, who is survived by three daughters called Maria Salud, Maria Amparo, and Maria Asuncion; and Maria Pilar Uson; Maria Manaoag Uson, unmarried, issue had by our deceased father Don Daniel Uson with one Leonarda Fernandez, alias Andao de Lingayen, so that they may have and enjoy it in equal parts as good sisters and relatives."cralaw virtua1aw library The court below found that the children of the deceased sisters should take only that portion which their respective mothers would have taken if they had been alive at the time the will was made; that the property should be divided into six equal parts corresponding to the number of sisters; that each living sisters should take one-sixth, and the children of each deceased sister should also take one-sixth, each one-sixth to be divided among said children equally. This appeal taken from the judgment entered upon that finding, appellants asserting that under a proper construction of the paragraphs of the codicil above-quoted the property should be divided equally between the living sisters and the children of the deceased sisters, share and share alike, a niece taking the same share that a sister receives. We are of the opinion that the appellants contention is well founded. We see no words or phrases in the clauses quoted which lead necessarily to the construction placed upon those paragraphs by the learned court below. On the other hand, we find expression which seem to indicate with fair clearness that it was the intention of the testatrix to divide her property equally between her sisters and nieces. The court below based its construction upon the theory that the other construction would be "an admission that the testatrix desired to favor her deceased sister Eufemia Uson, who left three children, more than her other deceased sister Antonia Uson, who left two children, and moreover both would be more favored than any of the other four surviving sisters, one of whom was married at the time of the execution of the said codicil and without doubt had children."cralaw virtua1aw library As we look at the codicil we observe, first, that the testatrix, in the first paragraph thereof, declares that after her husbands death she desires that "my sisters and nieces, as hereinafter named, shall succeed him as heirs."cralaw virtua1aw library

We note, in the second place, that the testatrix, in the second paragraph of the codicil, names and identifies each one of her heirs then living, or each one of the persons whom she desires shall succeed her husband in the property. Among those mentioned specifically are the nieces as well as the sisters. The nieces are referred to in no way different from the sisters. Each one stands out in the second paragraph of the codicil as clearly as the other and under exactly the same conditions. In the third place, we note, with interest, the last clause of the second paragraph of the codicil which, it seems to us, taken together with the last clause of the first paragraph of the codicil, is decisive of the intention of the testatrix. In the last clause she says that she names all of the persons whom she desires to take under her will by name "so that they may take and enjoy the property in equal parts as good sisters and relatives."cralaw virtua1aw library We have then in the first paragraph a declaration as to who the testatrix desires shall become the owners of her property on the death of her husband. Among them we find the names of the nieces as well as of the sisters. We have also the final declaration of the testatrix that she desires that the sisters and nieces shall take and enjoy the property in equal parts. That being so, it appears to us that the testatrixs intention is fairly clear, so clear in fact that it is unnecessary to bring in extraneous arguments to reach a conclusion as to what she intended. The judgment appealed from is hereby modified by declaring that, of the property passing under the codicil hereinabove referred to, the living sisters and the children of the deceased sisters shall take per capita and in equal parts, and as so modified the judgment is affirmed. No costs in this instance.

[G.R. No. L-17818. January 20, 1967.] TIRSO T. REYES, as guardian of the minors, Azucena, Flordelis and Tirso, Jr. v. LUCILA MILAGROS BARRETTO DATU 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 decedents last will and testament together with M.B., decedents 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 fathers 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 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 reglamentary 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. 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:chanrobles.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 plaintiffs 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 plaintiffs 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 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:jgc:chanrobles.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 virtua1aw library 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 latters children and successors, all the properties received by her from Bibianos 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 Barrettos counterclaim. However, it denied defendants 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 Barrettos last will and testament together with defendant Milagros; hence, the partition had between them could not be one such had with a party who was believed to be an heir without really being one,

and was not null and void 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 fathers 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 testators 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 courts 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 courts 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-appellees 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 courts duty to do so. Act 190, section 640, in force in 1939, provided:chanrob1es virtual 1aw library 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:chanrobles.com.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 virtua1aw library It is well to observe, at this juncture, as this Court expressly declared in Reyes v. Barretto Datu, 94 Phil. 446 (Amd. Rec. Appeal, pp. 156, 157), that:jgc:chanrobles.com.ph ". . . 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."cralaw virtua1aw library 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 fathers 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, knew that she was not Bibianos 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 fathers 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 (Appellees 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 Barrettos estate. In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso Reyes had induced her to delay filing action by verbally promising to reconvey the properties received by his deceased wife, Salud. There is no reliable evidence of the alleged promise, which rests exclusively on the oral assertions of Milagros herself and her counsel. In fact, the trial court made no mention of such promise in the decision under appeal. Even more: granting arguendo that the promise was made, the same can not bind the wards, the minor children of Salud, who are the real parties in interest. An abdicative waiver of rights by a guardian, being an act of disposition, and not of administration, can not bind his wards, being null and void as to them unless duly authorized by the proper court (Ledesma Hermanos 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 Barrettos 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.

[G.R. No. L-24365. June 30, 1966.] IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased. ADOLFO C. AZNAR v. MARIA LUCY CHRISTENSEN DUNCAN 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 deceaseds 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 form 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 legitimate 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. "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), 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.

"12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney now residing, as aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in that event, the life interest herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property with the same force and effect as if I had originally so given, devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and bequeath all the rest, remainder and residue of my property, one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share alike, the share of any of the three above named who may predecease me, to go in equal parts to the descendants of the deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton die before my own decease, then, and in that event, the share of my estate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de Trevio, of Mexico City, Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., or to the heirs of any of them who may die before my own decease, share and share alike." library 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:j "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."caw virtua1aw library 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 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 devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime."cralaw virtua1aw library Thus, according to appellant, under both Articles 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. 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. 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. 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 legitimate be completed. (6 Manresa, pp. 438, 441.) The foregoing solution is indeed more in consonance with the expressed wished 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 h is 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 oppositorappellant. 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 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 the 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 deduction 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. 47799. May 21, 1943. ] Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI ET AL., Petitioners, v. IGNACIA AKUTIN AND HER CHILDREN, Respondents. SYLLABUS 1. DESCENT AND DISTRIBUTION; EFFECT OF PRETERITION. According to the findings of fact in this case, 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. Held: That this is 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. ID.; ID.; RESPECTIVE SCOPE OF ARTICLES 814, 817, AND 851 OF THE CIVIL CODE. 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 the court annul entirely the institution of heir in favor of A and declare a total intestacy, or shall it merely refuse the bequest left to 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 the court does the first, it applies article 814; if the second, it applies 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. 3. ID.; ID.; ID.; LEGACIES AND BETTERMENTS SHOULD BE RESPECTED IN SO FAR AS THEY ARE NOT INOFFICIOUS OR EXCESSIVE. 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 or mejoras, such testamentary provisions shall be effective and the legacies and mejoras shall be respected in so far as they are not inofficious or excessive, according to article 814. In the instant case, however, no legacies or mejoras are 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. 4. ID.; ID.; ID.; INSTITUTION OF HEIRS DISTINGUISHED FROM LEGACIES AND BETTERMENTS. The theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said articles concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by article 817. This, instead of construing, this court would be destroying integral provisions of the Civil Code. 5. ID.; ID.; ID.; ID. The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed

that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or 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. 6. ID.; ID.; ID.; ID. 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 two 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. 7. ID.; ID.; ID.; ID.; STATUTORY CONSTRUCTION. As regards testamentary dispositions in general, the general rule is that all "testamentary dispositions which diminish the legitime of the forced heirs shall be reduced on petition of the same in so far as they are inofficious 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.) 8. ID.; ID.; ID.; ID.; ID.; "HEREDERO" UNDER THE CIVIL CODE AND "HEIR" UNDER THE CODE OF CIVIL PROCEDURE. 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 (Posadas v. National City Bank, 296 U. S., 497). 9. ID.; ID.; ID.; ID.; ID.; ID. 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 the 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. 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 petitioners. 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."cralaw virtua1aw library 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."cralaw virtua1aw library 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."cralaw virtua1aw library This is in connection with the property, real or personal, left by the deceased. As to money advances, the trial Court found: "It is contended, 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 Exhibits 16, 17, and 18; Celerina in the amount of P120 as appears in Exhibits 19, 19-A and 19-B."cralaw virtua1aw library 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 administrators 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. "It 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 paragraph: "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."cralaw virtua1aw library 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, for otherwise the children by the second 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 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. "If the forced heirs omitted die before the testator, the institution shall become operative." "ART. 817. Testamentary dispositions which diminish the legitime of the forced heirs shall be reduced on petition of the same in so far as they are inofficious or excessive."cralaw virtua1aw library "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."cralaw virtua1aw library 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 to 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. 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 a todo; 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 null in toto whereas 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 title 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. 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 or mejoras, such testamentary provisions shall be effective and the legacies and mejoras shall be respected in so far as they are not inofficious or excessive, according to article 814. In the instant case, however, no legacies or mejoras are 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 title in favor of the children by the second marriage should be treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code. The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or 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 two 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 dispositions which diminish the legitime of the forced heirs shall be reduced on petition of the same in so far as they are inofficious 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 as legatarios. 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 (Posadas v. 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 the 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 the 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."cralaw virtua1aw library "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."cralaw virtua1aw library 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 reads 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 repealed and such provisions of the Civil Code as may have been amended or repealed by said sections are hereby restored to full force and effect." (Italics 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 of Escuin v. Escuin (11 Phil., 332). We have never lost sight of the ruling laid down in that case which has been reiterated in Eleazar v. 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 an acknowledged natural child; and, in the Eleazar case the deceased left all his property to a friend 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 least 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 which the testator may be presumed to treat alike all his children. And specially is this true in the instant case where the testator omitted the children by his first marriage upon the erroneous belief that he had given them already more shares in his property than those given to the children by his second marriage. It was, therefore, the thought of the testator that the children by his first marriage should not receive less than the children by his second marriage, and to that effect is the decision of this Court sought to be reconsidered. Motion for reconsideration is hereby denied.

[G.R. No. 72706. October 27, 1987.] CONSTANTINO C. ACAIN v. IAC, VIRGINIA A. FERNANDEZ and ROSA DIONGSON 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-A-CEB 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." library 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:chanrob1es virtual 1aw library On May 29, 1984 petitioner Constantino Acain filed in 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-A-CEB (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) submitted 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 testators 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 predeceases me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given by 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-A-CEB.chanrobles law library 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 the deceased and the latters widow Rosa Diongson Vda. de Acain) filed a motion to dismiss on the following grounds: (1) the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been preterited. 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. 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-A-CEB. His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Courts decision on December 18, 1985 (Rollo, p. 6). Respondents Comment was filed on June 6, 1986. 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. Petitioner raises the following issues (Memorandum for Petitioner, (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 ERIT 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 inviolable. (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 preterited. 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 be effectual, without prejudice to the right of representation." library Preterition consists in the omission in the testators will of the forced heirs or anyone of them either because they are not mentioned therein, or, 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 was 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. Preterition 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" (Manresa, as cited in Nuguid v. Nuguid, supra, Maninang v. Court of Appeals, 114 SCRA [19821). The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs without any other testamentary disposition in the will - amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies or 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 in 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 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 (D.D. 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-CEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate courts authority is limited only to the extrinsic validity of the will, the due execution thereof, the testators 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. Leonidas, 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 preterition. 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 petitioners 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 courts order of dismissal. In Cayetano v. Leonidas, 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-CEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109). For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonidas, supra; Nuguid 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 v. Court of Appeals, supra). law library 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.