Succession Sept 15

Succession| Sept.
15 |1
SECOND
[G.R.
DIVISION
No.
L-39247.
June
27,
1975.]
In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX
BALANAY, JR., Petitioner, v. HON. ANTONIO M. MARTINEZ, Judge of the Court
of First Instance of Davao Branch VI; AVELINA B. ANTONIO and DELIA B.
LANABAN, Respondents.
Roberto
M.
Jose
B.
Sarenas
Guyo
The Supreme Court set aside the order dismissing the petition for probate of the will
directed the lower court to proceed with the hearing of the case with costs against
private respondents.
SYLLABUS
for Petitioner.
for Private
Respondents.
1. WILLS; PROBATE; COURTS MAY PASS UPON THE INTRINSIC VALIDITY BEFORE
ALLOWANCE OF WILL. Where the will contains unusual provisions which are of
SYNOPSIS
dubious legality and a motion to withdrew the petition for probate presumably with
Leodegaria Julian, in her will, partitioned her paraphernal as well as all the conjugal
petitioners authorization has been filed, the trial court can pass upon the wills intrinsic
properties as if they were all owned by her, disposing of her husbands one-half share,
validity even before its formal validity had been established. When practical
and providing that the properties should not be divided during her husbands lifetime
considerations demand that intrinsic validity be passed upon even before the will is
but should remain intact and that the legitimes should be paid in cash to be satisfied
probated, the court should do so, since the probate of a will probated, the court should
out of the fruits of the properties. Felix Balanay, Jr. filed a petition for the approval of
do so, since the probate of a will might become an idle ceremony if on its face the will
his mothers will which was opposed by the husband and some of her children. During
is
intrinsically
void.
the pendency of the probate proceedings petitioner submitted to the court a document
showing his fathers conformity to the testamentary distribution, renouncing his
2. ID.; ID.; PROBATE MANDATORY; EXCEPTION. Generally, the probate of a will is
hereditary rights in favor of his children in deference to the memory of his wife. The
mandatory and it is the duty of the court to pass first upon its formal validity except in
Court denied the opposition, set for hearing the probate of the will and gave effect to
extreme
the
affidavit
and
conformity
of
the
surviving
cases
where
the
will
is
on
its
face
intrinsically
void.
spouse.
3. ID.; ID.; ID.; EFFECT OF ILLEGAL PROVISIONS IN A WILL. A will is not rendered
Meanwhile, a certain Atty. David Montaa, Sr. allegedly, in behalf of the petitioner,
null and void by reason of the existence of some illegal or void provisions since the
moved to dismiss the probate proceedings and requested authority to proceed by
invalidity of one of several dispositions contained in a will does not result in the
intestate proceedings on the ground that the will was void, which motion was granted
invalidity of the other dispositions unless it is to be presumed that the testator would
by the probate court. The Court, however, did not abrogate its prior orders to proceed
not have made such other dispositions if the first invalid disposition had not been
with the probate proceedings. Subsequently, the court appointed the branch clerk as
made; and where some provisions are valid and others invalid, the valid provisions
special administrator, and notice to creditors was issued and published in the Davao
shall be upheld if they can be separated from the invalid provisions without defeating
Star.
the intention of the testator or interfering with the general testamentary scheme or
doing
injustice
to
the
beneficiaries.
Petitioner impugned the order of dismissal claiming that Atty. Montaa had no
authority to ask for the dismissal of the petition for allowance of will and that the court
4. ID.; ID.; ILLEGAL DECLARATION MAY BE DISREGARDED. The statement of the
erred in declaring the will void before resolving the question of its formal validity.
testatrix in her will that she owned the "southern half" of the conjugal lands is contrary
to the law, because although she was a co-owner thereof, her share was inchoate and
Succession| Sept. 15 |2
pro indiviso; but the illegal declaration does not nullify the entire will, and said
of the Civil Code, property acquired after the making of the will shall only pass thereby,
statement
as if the testator had possessed it at the time of making the will, should it expressly
may
be
disregarded.
appear by the will that such was his intention; while under Article 930 of said Code, the
5. ID.; ID.; ESTATE MAY REMAIN UNDIVIDED ONLY FOR A PERIOD OF 20 YEARS.
legacy or devise of a thing belonging to another is void, if he erroneously believed that
Under Article 083 of the Civil Code, the estate may remain undivided only for a period
the pertained to him; but if the thing bequeathed though not belonging to the testator
of twenty years; so that the provision in the testatrixs will that the estate should not
when he made the will afterwards becomes his by whatever title, the disposition shall
be divided during her husbands lifetime would at most be effective only for 20 years
take
effect.
from the date of her death unless there are compelling reasons for terminating the coownership.
10. ID; PRETERITION; OMISSION OF THE LEGAL HEIRS INVALIDATES THE WILL.
Under Article 854 of the Civil Code, the preterition of the compulsory heir in the direct
6. ID.; ID.; TESTATRIX MAY NOT REQUIRE PAYMENT OF LEGITIMATES TO BE PAID IN
line, whether living at the time of the execution of the will or born after the death of
CASH IF WHOLE ESTATE IS NOT ASSIGNED TO ONE OR MORE CHILDREN. The
the testator, shall annul the institution of heir; but the devises and legacies shall be
testatrix has no right to require that the legitimes be paid in cash, contrary to Article
valid insofar as they are not inofficious. Thus, the preterition of the parents annuls the
080 of the Civil Code if in her will she partitioned the entire conjugal estate among her
institution of the sister of the testatrix, and renders the will intrinsically void; and if
children (her husband had renounced his hereditary rights and his one-half conjugal
there are no legacies and devices, total intestacy results. But the preterition of the
share, and did not assign the whole estate to one or more children as envisaged in said
surviving spouse does not produce intestacy nor render the will intrinsically void,
article.
especially if the preterited spouse signified his conformity to his wifes will and
renounced
his
hereditary
rights.
7. ID.; ID.; RENUNCIATION; EFFECT OF RENUNCIATION OF HEREDITARY RIGHTS.

The surviving spouse can validly renounce his heredity rights; but insofar as such
11. ID.; INTENTIONS; COURTS SHOULD STRIVE TO GIVE EFFECT TO THE WISHES OF
renunciation partakes of a donation of the hereditary rights and his share in the
THE TESTATOR. To give effect to the intention and wishes of the testatrix is the first
conjugal properties, it should be subject to the limitations prescribed in Article 750 and
and principal law on the matter of the testaments, and such desires should be given
752 of the Civil Code on inofficious donations; and a portion of the estate should be
effect independently of the attitude of the parties affected thereby and an
adjudicated
interpretation that will render a testamentary disposition operative takes precedence
for
his
maintenance
or
at
least
his
legitime
respected.
over
construction
that
will
nullify
it.
8. ID.; ID.; ID.; INVALID DISPOSITION BY WILL OF ENTIRE CONJUGAL PARTNERSHIP

CURED BY SURVIVING SPOUSES CONFORMITY THERETO. Although under Article 70
12. ID.; ID.; ID.; TESTACY; DOUBTS SHOULD BE RESOLVED IN FAVOR OF TESTACY.
of the Civil Code the testatrix could dispose of by will only her half of the conjugal
Doubts are resolved in favor of testacy especially where the will evinces an intention on
state, the conformity of the husband, made after the dissolution of the conjugal
the part of the testator to dispose of practically the whole estate. So compelling is the
partnership by the death of the testatrix, has the effect of validating the testamentary
principle that intestacy should be avoided and that the wishes of the testator should
partition of the conjugal estate, without prejudice, of course, to the rights of creditors
prevail that sometimes the language of the will can be varied for the purpose of giving
and
it effect, because whatever disposition therein made is better than what the law can
legitimes
of
the
compulsory
heirs.
make.
9. ID.; FUTURE PROPERTIES; BEQUEST OF FUTURE PROPERTIES. Under Article 793
13. ID.; EXECUTORS; NOTICE TO CREDITORS CANNOT BE ISSUED BEFORE REGULAR
English. In that will Leodegaria Julian declared (a) that she was the owner of the
EXECUTOR IS APPOINTED; REASONS. The issuance of notice to creditors after a
"southern half" of nine conjugal lots (par. II); (b) that she was the absolute owner of
special executor or administrator had been appointed but before the appointment of a
two parcels of land which she inherited from her father (par. III), and (c) that it was
regular executor or administrator is erroneous being contrary to the rules of court
her desire that her properties should not be divided among her heirs during her
aside from the fact that it is the regular executor or administrator who is supposed to
husbands lifetime and that their legitimes should be satisfied out of the fruits of her
oppose
properties
the
claims
against
the
estate
or
pay
such
claims
if
allowed.
(Par.
IV).
14. ID.; ID.; JUDICIAL OFFICERS SHOULD REFRAIN FROM BEING APPOINTED
Then, in paragraph V of the will she stated that after her husbands death (he was
EXECUTORS. The appointment of the branch Clerk of Court as special administrator
eighty-two years old in 973) her paraphernal lands and all the conjugal lands (which
is not a salutary practice because it might engender the suspicion that the probate
she described as "my properties") should be divided and distributed in the manner set
court and his clerk are in cahoots in milking the decedents estate, and if he commits
forth in that part of her will. She devised and partitioned the conjugal lands as if they
any abuse or devastavit in the course of his administration, the probate judge might
were all owned by her. She disposed of in the will her husbands one-half share of the
find it difficult to hold him to a strict accountability. A court employee should devote his
conjugal
assets.
official time to his duties and should not have as a sideline the administration of a
decendents estate.
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the
grounds of lack of testamentary capacity, undue influence, preterition of the husband
DECISION
AQUINO, J.:
and alleged improper partition of the conjugal estate. The oppositors claimed that Felix
Balanay, Jr. should collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix
Balanay, Sr. dated April 8, 973 wherein he withdrew his opposition to the probate of
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of
Davao dated February 28, 974, declaring illegal and void the will of his mother,
Leodegaria Julian, converting the testate proceeding into an intestate proceeding and
ordering the issuance of the corresponding notice to creditors (Special Case No.808).
The antecedents of the appeal are as follows:chanrob1es virtual 1aw library
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 2, 973 in Davao
City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr.,
and by their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz
B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 973 for the
probate of his mothers notarial will dated September 5, 970 which is written in
the will and affirmed that he was interested in its probate. On the same date Felix
Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and
Renunciation of Hereditary Rights" wherein he manifested that out of respect for his
wifes will he "waived and renounced" his hereditary rights in her estate in favor of
their six children. In that same instrument he confirmed the agreement, which he and
his wife had perfected before her death, that their conjugal properties would be
partitioned
in
the
manner
indicated
in
her
will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 8,
973 "denied" the opposition and reset for hearing the probate of the will. It gave effect
to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 973 it
appointed its branch clerk of court as special administrator of the decedents estate.
issued on April , 974 and published on May 2, 9 and 6 in the Davao Star in spite of
Mrs. Antonio moved for the reconsideration of the lower courts order of June 8, 973
petitioners motion of April 7, 974 that its publication be held in abeyance.
on the grounds (a) that the testatrix illegally claimed that she was the owner of the
southern half of the conjugal lots and (b) that she could not partition the conjugal
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion
estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through
dated April 5, 974, asked for the reconsideration of the lower courts order of
his counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in
February 28, 974 on the ground that Atty. Montaa had no authority to withdraw the
its
petition for the allowance of the will. Attached to the motion was a copy of a letter
order
of
October
5,
973.
dated March 27, 974 addressed to Atty. Montaa and signed by Felix Balanay, Jr.,
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr.,
Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty.
terminated Montanas services and informed him that his withdrawal of the petition for
Cabreros), filed a motion dated September 25, 973 for "leave of court to withdraw
the probate of the will was without their consent and was contrary to their repeated
probate of alleged will of Leodegaria Julian and requesting authority to proceed by
reminder
to
him
that
their
mothers
will
was
"very
sacred
to
them.
intestate estate proceeding." In that motion Montaa claimed to be the lawyer not only
of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The
and
lower court denied the motion in its order of June 29, 974. It clarified that it declared
Emilia
B.
Pabaonon.
the will void on the basis of its own independent assessment of its provisions and not
Montaa in his motion assailed the provision of the will which partitioned the conjugal
because
of
Atty.
Montaas
arguments.
assets or allegedly effected a compromise of future legitimes. He prayed that the

probate of the will be withdrawn and that the proceeding be converted into an intestate
The basic issue is whether the probate court erred in passing upon the intrinsic validity
proceeding. In another motion of the same date he asked that the corresponding
of the will, before ruling on its allowance or formal validity, and in declaring it void.
notice
to
creditors
be
issued.
We are of the opinion that in view of certain unusual provisions of the will, which are of
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their
dubious legality, and because of the motion to withdraw the petition for probate (which
comments dated October 5, 973 manifested their conformity with the motion for the
the lower court assumed to have been filed with the petitioners authorization), the
issuance of a notice to creditors. They prayed that the will be declared void for being
trial court acted correctly in passing upon the wills intrinsic validity even before its
contrary
formal validity had been established. The probate of a will might become an idle
to
law
and
that
an
intestacy
be
declared.
ceremony if on its face it appears to be intrinsically void. Where practical

The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of
considerations demand that the intrinsic validity of the will be passed upon, even
a notice to creditors was in order since the parties had agreed on that point. It adopted
before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G.527,
the view of Attys. Montaa and Guyo that the will was void. So, in its order of February
7 SCRA 449. Compare with Sumilang v. Ramagosa, L-2335, December 26, 967, 2
28, 974 it dismissed the petition for the probate, converted the testate proceeding into
SCRA
369;
Cacho
v.
Udan,
L-9996,
April
30,
965,
SCRA
693).
an intestate proceeding, ordered the issuance of a notice to creditors and set the
intestate proceeding for hearing on April and 2, 974. The lower court did not
But the probate court erred in declaring in its order of February 28, 974 that the will
abrogate its prior orders of June 8 and October 5, 973. The notice to creditors was
was void and in converting the testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 8, 973 it gave effect to the surviving
share). She did not assign the whole estate to one or more children as envisaged in
husbands conformity to the will and to his renunciation of his hereditary rights which
article 080. Hence, she had no right to require that the legitimes be paid in cash. On
presumably
the other hand, her estate may remain undivided only for a period of twenty years. So,
included
his
one-half
share
of
the
conjugal
estate.
the provision that the estate should not be divided during her husbands lifetime would
The rule is that "the invalidity of one of several dispositions contained in a will does not
at most be effective only for twenty years from the date of her death unless there are
result in the invalidity of the other dispositions, unless it is to be presumed that the
compelling
reasons
for
terminating
the
coownership
(Art.083,
Civil
Code).
testator would not have made such other dispositions if the first invalid disposition had
not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of
and others invalid, the valid parts will be upheld if they can be separated from the
the conjugal partnership (Arts.79[] and 04, Civil Code) but insofar as said
invalid without defeating the intention of the testator or interfering with the general
renunciation partakes of a donation of his hereditary rights and his one-half share in
testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).
the conjugal estate (Art.050[] Civil Code), it should be subject to the limitations
prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be
The statement of the testatrix that she owned the "southern half" of the conjugal lands
adjudicated to the widower for his support and maintenance. Or at least his legitime
is contrary to law because, although she was a coowner thereof, her share was
should
be
respected.
inchoate and proindiviso (Art.43, Civil Code; Madrigal and Paterno v. Rafferty and
Concepcion, 38 Phil. 44). But that illegal declaration does not nullify the entire will. It
Subject to the foregoing observations and the rules on collation, the will is intrinsically
may
valid and the partition therein may be given effect if it does not prejudice the creditors
be
disregarded.
and impair the legitimes. The distribution and partition would become effective upon
The provision of the will that the properties of the testatrix should not be divided
the death of Felix Balanay, Sr. In the meantime, the net income should be equitably
among her heirs during her husbands lifetime but should be kept intact and that the
divided
among
the
children
and
the
surviving
spouse.
legitimes should be paid in cash is contrary to article 080 of the Civil Code which
reads:jgc:chanrobles.com.ph
It should be stressed that by reason of the surviving husbands conformity to his wifes
will and his renunciation of his hereditary rights, his one-half conjugal share be a part
"ART.080. Should a person make a partition of his estate by an act inter vivos, or by
of his deceased wifes estate. His conformity had the effect of validating the partition
will, such partition shall be respected, insofar as it does not prejudice the legitime of
made in paragraph V of the will without prejudice, of course, to the rights of the
the
creditors
compulsory
heirs.
and
the
legitimes
of
the
compulsory
heirs.
"A parent who, in the interest of his or her family, desires to keep any agricultural,
Article 793 of the Civil Code provides that "property acquired after the making of a will
industrial, or manufacturing enterprise intact, may avail himself of the right granted
shall only pass thereby, as if the testator had possessed it at the time of making the
him in this article, by ordering that the legitime of the other children to whom the
will, should it expressly appear by the will that such was his intention." Under article
property
930 of the Civil Code "the legacy or devise of a thing belonging to another person is
is
not
assigned,
be
paid
in
cash.
(056a)"
void, if the testator erroneously believed that the thing pertained to him. But if the
The testatrix in her will made a partition of the entire conjugal estate among her six
thing bequeathed, though not belonging to the testator when he made the will,
children (her husband had renounced his hereditary rights and his one-half conjugal
afterwards becomes his, by whatever title, the disposition shall take effect."cralaw
virtua1aw
library
affected thereby" (Resolution, Vda. de Precilla v. Narciso, L-27200, August 8, 972, 46

SCRA
538,
565).
In the instant case there is no doubt that the testatrix and her husband intended to
partition the conjugal estate in the manner set forth in paragraph V of her will. It is
To give effect to the intention and wishes of the testatrix is the first and principal law in
true that she could dispose of by will only her half of the conjugal estate (Art.70, Civil
the matter of testaments (Dizon-Rivera v. Dizon, L-2456, June 30, 970, 33 SCRA 554,
Code) but since the husband, after the dissolution of the conjugal partnership, had
56). Testacy is preferable to intestacy. An interpretation that will render a
assented to her testamentary partition of the conjugal estate, such partition has
testamentary disposition operative takes precedence over a construction that will
become
nullify
valid,
assuming
that
the
will
may
be
probated.
provision
of
the
will
(Arts.
788
and
79,
Civil
Code).
The instant case is different from the Nuguid case, supra, where the testatrix instituted
Testacy is favored. Doubts are resolved in favor of testacy especially where the will
as heir her sister and preterited her parents. Her will was intrinsically void because it
evinces an intention on the part of the testator to dispose of practically his whole
preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides
estate. So compelling is the principle that intestacy should be avoided and that the
that "the preterition or omission of one, some, or all of the compulsory heirs in the
wishes of the testator should prevail that sometimes the language of the will can be
direct line, whether living at the time of the execution of the will or born after the
varied for the purpose of giving it effect (Austria v. Reyes, L-23079, February 27, 970,
death of the testator, shall annul the institution of heir; but the devises and legacies
SCRA
754,
762).
shall be valid insofar as they are not inofficious." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there were no legacies and
As far as is legally possible, the expressed desire of the testator must be followed and
devises,
the dispositions of the properties in his will should be upheld (Estorque v. Estorque,
total
intestacy
resulted
(Art.
960[2],
Civil
Code).
L-9573,
June
30,
970,
33
SCRA
540,
546).
In the instant case, the preterited heir was the surviving spouse. His preterition did not
produce intestacy. Moreover, he signified his conformity to his wifes will and renounced
The law has a tender regard for the wishes of the testator as expressed in his will
his
because any disposition therein is better than that which the law can make (Castro v.
hereditary
rights.
Bustos,
L-2593,
February
28,
969,
27
SCRA
327,
34).
It results that the lower court erred in not proceeding with the probate of the will as
contemplated in its uncancelled order of June 8, 973. Save in an extreme case where
Two other errors of the lower court may be noticed. It erred in issuing a notice to
the will on its face is intrinsically void, it is the probate courts duty to pass first upon
creditors although no executor or regular administrator has been appointed. The record
the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838,
reveals that it appointed a special administrator. A notice to creditors is not in order if
Civil Code; Guevara v. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez v. Dimagiba,
only a special administrator has been appointed. Section , Rule 86 of the Rules of
L-23638,
Court, in providing that "immediately after granting letters of testamentary or of
October
2,
967,
SCRA
428).
administration, the court shall issue a notice requiring all persons having money claims
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is
against the decedent to file them in the office of the clerk of said court" clearly
in itself prima facie proof that the supposed testator has willed that his estate should
contemplates the appointment of an executor or regular administrator and not that of
be distributed in the manner therein provided, and it is incumbent upon the state that,
if legally tenable, such desire be given effect independent of the attitude of the parties
special
administrator.
It is the executor or regular administrator who is supposed to oppose the claims
against the estate and to pay such claims when duly allowed (Sec.0, Rule 86 and sec.,
Rule
88,
Rules
of
Court).
We also take this occasion to point out that the probate courts appointment of its
branch clerk of court as special administrator (p. 30, Rollo) is not a salutary practice
because it might engender the suspicion that the probate Judge and his clerk of court
are in cahoots in milking the decedents estate. Should the branch clerk of court
commit any abuse or devastavit in the course of his administration, the probate Judge
might find it difficult to hold him to a strict accountability. A court employee should
devote his official time to his official duties and should not have as a sideline the
administration
of
decedents
estate.
WHEREFORE, the lower courts orders of February 28, and June 29, 974 are set aside
and its order of June 8, 973, setting for hearing the petition for probate, is affirmed.
The lower court is directed to conduct further proceedings in Special Case No.808 in
consonance
SO ORDERED.
with
this
opinion.
Costs,
against
the
private
respondents.
GARCIAS; 2) the correct status of ZONIA, and 3) the hereditary share of each of them
in view of the probated Will. 2
G.R. No. L-41971 November 29, 1983
ZONIA
ANA
vs.
THE COURT OF APPEALS,
GARCIA, respondents.
T.
BIENVENIDO
SOLANO, petitioner,
S.
GARCIA,
and
EMETERIA
S.
Benjamin H. Aquino for petitioner.

Alfredo Kallos for respondents.
MELENCIO HERRERA, J.:+.wph!1

A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming
the judgment rendered by the former Court of First Instance of Albay, Branch II, in
Civil Case No. 3956, an action for Recognition.
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be
illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him.
In his Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of
the suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the
DECEDENT as the only surviving heir mentioned in his Last Will and Testament
probated on March 10, 1969, or prior to his death, in Special Proceedings No. 842 of
the same Court. ZONIA entered her formal appearance as a "substitute defendant" on
March 4, 1970 claiming additionally that she was the sole heir of her father, SOLANO,
and asking that she be allowed to assume her duties as executrix of the probated Will
with the least interference from the GARCIAS who were "mere pretenders to be
illegitimate children of SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and
Supplemental Cause of Action" impugning the recognition of ZONIA as an
acknowledged natural child with the prayer that she be declared instead, like them, as
an adulterous child of the DECEDENT. ZONIA did not file any responsive pleading and
the case proceeded to trial. The GARCIAS further moved for the impleading of the
SOLANO estate in addition to ZONIA, which was opposed by the latter, but which the
Trial Court granted in its Order dated April 15, 1970. 1
In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated
in the parties' respective Memoranda as: 1) the question of recognition of the
On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered
judgment the dispositive portion of which decrees: t.hqw
WHEREFORE, judgment is hereby rendered declaring the plaintiffs
Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia
Ana Tuagnon as the illegitimate children of the late Dr. Meliton Solano
under the class of ADULTEROUS CHILDREN, with all the rights
granted them by law. The institution of Sonia Ana Solano as sole and
universal heir of the said deceased in the will is hereby declared null
and void and the three (3) children shall share equally the estate or
one- third (1/3) each, without prejudice to the legacy given to
Trinidad Tuagnon and the right of any creditors of the estate. No
pronouncement as to costs.
Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in
toto (CA-G.R. No. 49018).
ZONIA seeks a reversal of that affirmance in this petition, which was given due course.
At the outset, we should state that we are bound by the findings of fact of both the
Trial Court and the Appellate Court, particularly, the finding that the GARCIAS and
ZONIA are, in fact, illegitimate children of the DECEDENT. The oral testimony and the
documentary evidence of record inevitably point to that conclusion, as may be gleaned
from the following background facts: SOLANO, a resident of Tabaco, Albay, married
Pilar Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who
became his second wife in 1928. The union was short-lived as she left him in 1929. In
the early part of 1930, SOLANO started having amorous relations with Juana Garcia,
out of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3");
and on November 3, 1935, Emeteria Garcia was born (Exhibits "B " & "2"). Their birth
certificates and baptismal certificates mention only the mother's name without the
father's name. The facts establish, however, that SOLANO during his lifetime
recognized the GARCIAS as his children by acts of support and provisions for their
education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of
this relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In
her Birth Certificate, her status was listed as "illegitimate"; her mother as Trinidad
Tuagnon; her father as "P.N.C. " (Exhibit "V"), or "padre no conocido".
During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on
November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and
Trinidad Tuagnon executed an "Escritura de Reconocimiento de Unit Hija Natural"
(Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the right to
use the name ZONIA Ana Solano y Tuagnon. The document was registered with the
Local Civil Registrar on the same date.
On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit
"11"), instituting ZONIA as his universal heir to all his personal and real properties in
Camalig, Tabaco and Malinao, all in the province of Albay, except for five parcels of
land in Bantayan, Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct
Upon SOLANO's petition (Exhibit "10"), the Will was duly probated on March 10, 1969
in Special Proceedings No. 842 of the Court of First Instance of Albay, Branch II, in a
Decision also rendered by Judge Ezequiel S. Grageda (Exhibit "12").
As above stated, these facts are not in question.
Petitioner maintains, however, that: t.hqw
I
The Court of Appeals, as well as the trial Court, acted without
jurisdiction or in excess of jurisdiction in declaring substitute
defendant Zonia Ana Solano, now petitioner, an illegitimate child of
the late Dr. Meliton Solano in an action where private respondents, as
plaintiffs in the Court below, sought recognition as natural children of
Dr. Meliton Solano.
II
jurisdiction or in excess of jurisdiction in ordering the division of the
estate of Dr. Meliton Solano between the petitioner and private
respondents, when said estate is under the jurisdiction and control of
the probate Court in Special Proceedings No. 842.
III
jurisdiction or in excess of jurisdiction in declaring nun and void the
institution of heir in the last will and testament of Dr. Meliton Solano,
which was duly probated in special proceedings No. 842 of the Court
of First Instance of Albay, and in concluding that total intestacy
resulted there from. 3
Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1)
to declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the
estate in the same action despite the pendency of Special Proceedings No. 842; and 3)
to declare null and void the institution of heir in the Last Win and Testament of
SOLANO, which was duly probated in the same Special Proceedings No. 842, and
concluding that total intestacy resulted.
It is true that the action below was basically one for recognition. However, upon notice
of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only
surviving heir ... as of as of now" 4 In her "Appearance of Substitute Defendant Zonia
Ana T. Solano ... Sole and Universal Heir", ZONIA specifically prayed that she be 6
allowed to assume her duties as executrix and administratrix of the probated will and
testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, which is
already final and executory, with least interference from the plaintiffs (GARCIAS) who
may be classified for the moment as only pretenders to be illegitimate children". In
other words, ZONIA did not only rely upon SOLANO's Answer already of record but
asserted new rights in her capacity as sole and universal heir, "executrix and
administratrix, "and challenged the right of the GARCIAS to recognition. Thus, she was
not defending the case as a mere representative of the deceased but asserted rights
and defenses in her own personal capacity. So it was that the GARCIAS filed a "Reply
to Appearance of ZONIA ... and Supplemental Cause of Action ... "vigorously denying
that ZONIA was SOLANO's sole and universal heir; that ZONIA could not legally be
considered as SOLANO's acknowledged natural child because of a legal impediment;
that the admission to probate of SOLANO's Will was merely conclusive as to its due
execution; that the supposed recognition under a notarial instrument of ZONIA as an
acknowledged natural child was fraudulent and a product of misrepresentation; that
ZONIA's recognition in the Will as an acknowledged natural child is subject to
nullification and that at most ZONIA is, like them, an adulterous child of SOLANO with
Trinidad Tuagnon.
During the trial, the GARCIAS presented evidence to prove their allegations not only in
their main complaint but also in their "Reply to Appearance and Supplemental Cause of
Action". ZONIA presented no objection to the presentation by the GARCIAS of their
oral and documentary evidence and even cross-examined their witnesses. ZONIA, for
her part, presented her own testimonial and documentary evidence, denied the
relationship of the GARCIAS' to SOLANO and presented the notarial recognition in her
favor as an acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q").
Thus, as raised by the parties in their own pleadings and pursuant to their respective
evidence during the trial, the litigation was converted into a contest between the
GARCIAS and ZONIA precisely as to their correct status as heirs and their respective
rights as such. No error was committed by either the Trial Court or the Appellate Court,
therefore, in resolving the issue of ZONIA's status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void
the institution of heir in SOLANO's will; in concluding that total intestacy resulted

therefrom; and distributing the shares of the parties in SOLANO's estate when said
estate was under the jurisdiction and control of the Probate Court in Special
Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar situation is thrust upon
us here. It should be recalled that SOLANO himself instituted the petition for probate of
the Will during his lifetime. That proceeding was not one to settle the estate of a
deceased person that would be deemed terminated only upon the final distribution of
the residue of the hereditary estate. With the Will allowed to probate, the case would
have terminated except that it appears that the parties, after SOLANO's death,
continued to file pleadings therein. Secondly, upon motion of the GARCIAS, and over
the objection of ZONIA, the Trial Court ordered the impleading of the estate of SOLANO
and proceeded on that basis. In effect, therefore, the two cases were consolidated. The
records further disclose that the action for recognition (Civil Case No. 3956) and Spec.
Procs. No. 842 were pending before the same Branch of the Court and before the same
presiding Judge. Thirdly, it is settled that the allowance of a Will is conclusive only as to
its due execution. 5 A probate decree is not concerned with the intrinsic validity or
legality of the provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon
the facts, the GARCIAS and ZONIA were in the same category as illegitimate children;
that ZONIA's acknowledgment as a "natural child" in a notarial document executed by
SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the
time of her birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having
been obtained only in 1943, and, therefore, did not have the legal capacity to contract
marriage at the time of ZONIA's conception, 7that being compulsory heirs, the
GARCIAS were, in fact, pretended from SOLANO's Last' Will and Testament; and that
as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null
and void pursuant to Article 854 of the Civil Code. t.hqw
The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of
the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious. ... 8
As provided in the foregoing provision, the disposition in the Will giving the usufruct in
favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a
legacy, recognized in Article 563 of the Civil Code, 9and should be respected in so far
as it is not inofficious. 10
So also did the Trial Court have jurisdiction in resolving the issue of the hereditary
shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts
below, holding that the entire Will is void and intestacy ensues, the pretention of the
GARCIAS should annul the institution of ZONIA as heir only insofar as the legitime of
the omitted heirs is impaired. The Will, therefore, is valid subject to that
limitation. 11 It is a plain that the intention of the testator was to favor ZONIA with
certain portions of his property, which, under the law, he had a right to dispose of by
Will, so that the disposition in her favor should be upheld as to the one-half (1/2)
portion of the property that the testator could freely dispose of. 12 Since the legitime of
illegitimate children consists of one half (1/2) of the hereditary estate, 13the GARCIAS
and ZONIA each have a right to participation therein in the proportion of one-third
(1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of
the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the
value of the estate.
As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties
indicated in the Will is valid and should be respected.
The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin,
et al., 15 which held that where the institution of a universal heir is null and void due to
pretention, the Will is a complete nullity and intestate succession ensues, is not
applicable herein because in the Nuguid case, only a one-sentence Will was involved
with no other provision except the institution of the sole and universal heir; there was
no specification of individual property; there were no specific legacies or bequests. It
was upon that factual setting that this Court declared: t.hqw
The disputed order, we observe, declares the will in question 'a
complete nullity. Article 854 of the Civil Code in turn merely nullifies
'the institution of heir'. Considering, however, that the will before us
solely provides for the institution of petitioner as universal heir, and
nothing more, the result is the same. The entire will is null." (at p.
459)
In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854
of the Civil Code, supra, applies merely annulling the "institution of heir".
Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate
Court was never questioned before either Court. ZONIA herself had gone, without
objection, to trial on the issues raised and as defined by the Trial Court. Neither had
ZONIA assigned lack of jurisdiction of the Trial Court as an error before the Appellate
Court. She should now be held estopped to repudiate that jurisdiction to which she had
voluntarily submitted, after she had received an unfavorable judgment, The leading
case of Tijam vs. Sibonghanoy, 16 on this point, declared: t.hqw
A party cannot invoke the jurisdiction of a court to secure affirmative
relief against his opponent and after failing to obtain such relief,
repudiate or question the same jurisdiction. The question whether
the court has jurisdiction either of the subject matter of the action or
of the parties is not because the judgment or order of the court is

valid and conclusive as an adjudication but for the reason that such
practice cannot be tolerated obviously for reasons of public policy.
After voluntarily submitting a cause and encountering an adverse
decision on the merits, it is too late for the loser to question the
jurisdiction or power of the court.
WHEREFORE, the judgment under review is hereby modified in that the hereditary
share in the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared
to be (1/2 + (1/3 of 1/2) or 4/6 of said estate, while that of private respondents,
Bienvenido S. Garcia and Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the
estate. The usufruct in favor of Trinidad Tuagnon shall be respected. The judgment is
affirmed in all other respects. No costs.
SO ORDERED.1wph1.t
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of
Rizal a holographic will allegedly executed by Rosario Nuguid on November 17, 1951,
some 11 years before her demise. Petitioner prayed that said will be admitted to
probate and that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors who are compulsory
heirs of the deceased in the direct ascending line were illegally preterited and that in
consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and
objection thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to
dismiss.1wph1.t
The court's order of November 8, 1963, held that "the will in question is a complete
nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid"
and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.
G.R. No. L-23445
June 23, 1966
REMEDIOS
NUGUID, petitioner
and
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
appellant,
Custodio
O.
Partade
for
petitioner
Beltran, Beltran and Beltran for oppositors and appellees.
appellant.
SANCHEZ, J.:
and
1. Right at the outset, a procedural aspect has engaged our attention. The case is for
the probate of a will. The court's area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the
court. Said court at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or
legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is
the intrinsic validity of the will. Normally, this comes only after the court has declared
that the will has been duly authenticated.2 But petitioner and oppositors, in the court

below and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a
nullity?
of the testator, shall void the institution of heir; but the legacies and
betterments4 shall be valid, in so far as they are not inofficious. ...
We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the event of probate or if the court rejects the will, probability
exists that the case will come up once again before us on the same issue of the
intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added
anxiety. These are the practical considerations that induce us to a belief that we might
as well meet head-on the issue of the validity of the provisions of the will in
question.3 After all, there exists a justiciable controversy crying for solution.
A comprehensive understanding of the term preterition employed in the law becomes a

necessity. On this point Manresa comments:
2. Petitioner's sole assignment of error challenges the correctness of the conclusion

below that the will is a complete nullity. This exacts from us a study of the disputed will
and the applicable statute.
Reproduced hereunder is the will:
La pretericion consiste en omitar al heredero en el testamento. O no se le

nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le asigna parte alguna de los
bienes, resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes por su
muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que
la omision sea completa; que el heredero forzoso nada reciba en el
testamento.
Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed
a certain amount of property, do hereby give, devise, and bequeath all of the property
which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh
day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall annul the institution of heir; but
the devises and legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article
814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line,
whether living at the time of the execution of the will or born after the death
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A.
342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony
provisions of divorce decree upon wife's remarriage means to reduce to
nothing; to annihilate; obliterate; blot out; to make void or of no effect; to
nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs.
Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no
effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va.
283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending
line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the testament; tacitly,
they were deprived of their legitime; neither were they expressly disinherited. This is a
clear case of preterition. Such preterition in the words of Manresa "anulara siempre la
institucion de heredero, dando caracter absoluto a este ordenamiento referring to the
mandate of Article 814, now 854 of the Civil Code. 9 The one-sentence will here
institutes petitioner as the sole, universal heir nothing more. No specific legacies or

bequests are therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de
existir, en todo o en parte? No se aade limitacion alguna, como en el articulo
851, en el que se expresa que se anulara la institucion de heredero en cuanto
prejudique a la legitima del deseheredado Debe, pues, entenderse que la
anulacion es completa o total, y que este articulo como especial en el caso
que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de
la sucesion intestada total o parcial. Sera total, cuando el testador que comete
la pretericion, hubiese dispuesto de todos los bienes por titulo universal de
herencia en favor de los herederos instituidos, cuya institucion se anula,
porque asi lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que "anulara la institucion de
heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of such institution of universal
heir without any other testamentary disposition in the will amounts to a
declaration that nothing at all was written. Carefully worded and in clear terms, Article
854 offers no leeway for inferential interpretation. Giving it an expansive meaning will
tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the
"Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion
expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna favorable a la
persona instituida en el sentido antes expuesto aun cuando parezca, y en
algun caso pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el acto no se ha
realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como habria que llamar a los de
otra clase, cuando el testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado la jurisprudencia,
con repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpretacion
arbitraria, dentro del derecho positivo, reputar como legatario a un heredero

cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor
a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para
modificar la ley, pero no autoriza a una interpretacion contraria a sus terminos
y a los principios que informan la testamentifaccion, pues no porque parezca
mejor una cosa en el terreno del Derecho constituyente, hay razon para
convereste juicio en regla de interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the mere institution of a
universal heir in a will void because of preterition would give the heir so instituted
a share in the inheritance. As to him, the will is inexistent. There must be, in addition
to such institution, a testamentary disposition granting him bequests or legacies apart
and separate from the nullified institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition annuls the institution
of the heir "totalmente por la pretericion"; but added (in reference to legacies and
bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a
la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to
intestate succession the entire inheritance including "la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather
than one of preterition". 15From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to appreciate the distinction
between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone
of them, either because they are not mentioned therein, or, though mentioned, they
are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn,
"is a testamentary disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion
expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed
to be "involuntaria". 19 Express as disinheritance should be, the same must be
supported by a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different
from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat,
"shall annul the institution of heir". This annulment is in toto, unless in the will there
are, in addition, testamentary dispositions in the form of devises or legacies. In
ineffective disinheritance under Article 918 of the same Code, such disinheritance shall
also "annul the institution of heirs", put only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition. 21 Better stated
yet, in disinheritance the nullity is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived. Manresa's expressive language, in
commenting on the rights of the preterited heirs in the case of preterition on the one
hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho
a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso.23
in themselves different. Institution of heirs is a bequest by universal title of

property that is undetermined. Legacy refers to specific property bequeathed
by a particular or special title. ... But again an institution of heirs cannot be
taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity".
Article 854 of the Civil Code in turn merely nullifies "the institution of heir".
Considering, however, that the will before us solely provides for the institution of
petitioner as universal heir, and nothing more, the result is the same. The entire will is
null.
Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed. So ordered.
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited,viz:
G.R. No. 72706 October 27, 1987
But the theory is advanced that the bequest made by universal title in favor of
the
children
by
the
second
marriage
should
be
treated
as legado and mejora and, accordingly, it must not be entirely annulled but
merely reduced. This theory, if adopted, will result in a complete abrogation of
Articles 814 and 851 of the Civil Code. If every case of institution of heirs may
be made to fall into the concept of legacies and betterments reducing the
bequest accordingly, then the provisions of Articles 814 and 851 regarding
total or partial nullity of the institution, would. be absolutely meaningless and
will never have any application at all. And the remaining provisions contained
in said article concerning the reduction of inofficious legacies or betterments
would be a surplusage because they would be absorbed by Article 817. Thus,
instead of construing, we would be destroying integral provisions of the Civil
Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general
from a special provision. With reference to article 814, which is the only
provision material to the disposition of this case, it must be observed that the
institution of heirs is therein dealt with as a thing separate and distinct from
legacies or betterments. And they are separate and distinct not only because
they are distinctly and separately treated in said article but because they are
CONSTANTINO
C.
ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division),
VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of
Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108)
ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners
herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional
Trial Court of the Seventh Judicial Region, Branch XIII (Cebu City), is

hereby ordered to dismiss the petition in Special Proceedings No. 591
ACEB No special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate
Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu
City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for
the issuance to the same petitioner of letters testamentary, docketed as Special
Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died
leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his
sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly
executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)
with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection
raised by private respondents. The will contained provisions on burial rites, payment of
debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of
the testament. On the disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house,
lands and money which I earned jointly with my wife Rosa Diongson
shall all be given by me to my brother SEGUNDO ACAIN Filipino,
widower, of legal age and presently residing at 357-C Sanciangko
Street, Cebu City. In case my brother Segundo Acain pre-deceased
me, all the money properties, lands, houses there in Bantayan and
here in Cebu City which constitute my share shall be given to me to
his children, namely: Anita, Constantino, Concepcion, Quirina, laura,
Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591
ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile
deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss
on the following grounds for the petitioner has no legal capacity to institute these
proceedings; (2) he is merely a universal heir and (3) the widow and the adopted
daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial
judge.
After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition with
preliminary injunction which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p.
3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and

ordered the trial court to dismiss the petition for the probate of the will of Nemesio
Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition
for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6).
Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p.
153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the
Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and
prohibition with preliminary injunction is not the proper remedy
under the premises;
(B) The authority of the probate courts is limited only to inquiring
into the extrinsic validity of the will sought to be probated and it
cannot pass upon the intrinsic validity thereof before it is admitted to
probate;
(C) The will of Nemesio Acain is valid and must therefore, be
admitted to probate. The preterition mentioned in Article 854 of the
New Civil Code refers to preterition of "compulsory heirs in the direct
line," and does not apply to private respondents who are not
compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be
the law;
(E) There may be nothing in Article 854 of the New Civil Code, that
suggests that mere institution of a universal heir in the will would
give the heir so instituted a share in the inheritance but there is a
definite distinct intention of the testator in the case at bar, explicitly
expressed in his will. This is what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing
to file the petition in Sp. Proc. No. 591 ACEB for probate of the will of
Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is
therefore unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been
pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devisees and legacies shall be
valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall he effectual, without prejudice to the right of
representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA
450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the
widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend
or descend from the testator, although she is a compulsory heir. Stated otherwise,
even if the surviving spouse is a compulsory heir, there is no preterition even if she is
omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code)
however, the same thing cannot be said of the other respondent Virginia A. Fernandez,
whose legal adoption by the testator has not been questioned by petitioner
(.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as
the Child and Youth Welfare Code, adoption gives to the adopted person the same
rights and duties as if he were a legitimate child of the adopter and makes the adopted
person a legal heir of the adopter. It cannot be denied that she has totally omitted and
preterited in the will of the testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that they were not
expressly disinherited. Hence, this is a clear case of preterition of the legally adopted
child.
Pretention annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not
result in intestacy are the legacies and devises made in the will for they should stand
valid and respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the
entire inheritance of the testator results in totally abrogating the will because the
nullification of such institution of universal heirs-without any other testamentary
disposition in the will-amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for
inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having
been provided in the will the whole property of the deceased has been left by universal
title to petitioner and his brothers and sisters. The effect of annulling the "Institution of
heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185
[1943]) except that proper legacies and devises must, as already stated above, be
respected.
We now deal with another matter. In order that a person may be allowed to intervene
in a probate proceeding he must have an interest iii the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of the estate and an
interested party is one who would be benefited by the estate such as an heir or one
who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA
1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition of any gift of an individual item
of personal or real property he is called upon to receive (Article 782, Civil Code). At the
outset, he appears to have an interest in the will as an heir, defined under Article 782
of the Civil Code as a person called to the succession either by the provision of a will or
by operation of law. However, intestacy having resulted from the preterition of
respondent adopted child and the universal institution of heirs, petitioner is in effect
not an heir of the testator. He has no legal standing to petition for the probate of the
will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of j judicial authority (People v. Villanueva,
110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan
Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA
587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not
available where the petitioner has the remedy of appeal or some other plain, speedy
and adequate remedy in the course of law (DD Comendador Construction Corporation
v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a
grave abuse of discretion of the trial court in not dismissing a case where the dismissal
is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137
[1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent
Court, the general rule is that the probate court's authority is limited only to the
extrinsic validity of the will, the due execution thereof, the testator's testamentary
capacity and the compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the Court has declared that the
will has been duly authenticated. Said court at this stage of the proceedings is not

called upon to rule on the intrinsic validity or efficacy of the provisions of the will
(Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v.
Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984];
and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass
upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid
v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute
preteriton The probate court acting on the motion held that the will in question was a
complete nullity and dismissed the petition without costs. On appeal the Supreme
Court upheld the decision of the probate court, induced by practical considerations. The
Court said:
We pause to reflect. If the case were to be remanded for probate of
the will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result: waste of time, effort, expense,
plus added anxiety. These are the practical considerations that induce
us to a belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question. After all there exists
a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by
the surviving spouse was grounded on petitioner's lack of legal capacity to institute the
proceedings which was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the
petition deals with the validity of the provisions of the will. Respondent Judge allowed
the probate of the will. The Court held that as on its face the will appeared to have
preterited the petitioner the respondent judge should have denied its probate outright.
Where circumstances demand that intrinsic validity of testamentary provisions be
passed upon even before the extrinsic validity of the will is resolved, the probate court
should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v.
Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp.
Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following
grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is
merely a universal heir; and (3) the widow and the adopted daughter have been
preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21,
1985 for the reason that "the grounds for the motion to dismiss are matters properly
to be resolved after a hearing on the issues in the course of the trial on the merits of
the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial
court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case
to progress when on its face the will appears to be intrinsically void as petitioner and
his brothers and sisters were instituted as universal heirs coupled with the obvious fact
that one of the private respondents had been preterited would have been an exercise
in futility. It would have meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have passed upon the
intrinsic validity of the testamentary provisions before the extrinsic validity of the will
was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v.
Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the
Court harkens to the rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal would not afford speedy and
adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the
questioned decision of respondent Court of Appeals promulgated on August 30, 1985
and its Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.

1955, the appellant Maria Ventura filed a motion for her appointment as executrix and
for the issuance of letters testamentary in her favor (Record on Appeal, pp. 10-11). On
October 17, 1955, Maria Ventura was appointed executrix and the corresponding
letters testamentary was issued in her favor (Record on Appeal, pp. 11-12).
On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of
Gregorio Ventura (Record on Appeal, pp. 12-20).
G.R. No. L-26306 April 27, 1988

TESTATE
ESTATE
OF
THE
LATE
GREGORIO
VENTURA
MARIA
VENTURA, executrix- appellant, MIGUEL VENTURA and JUANA CARDONA, heirsappellants,
vs.
GREGORIA VENTURA and HER HUSBAND, EXEQUIEL VICTORIO, MERCEDES
VENTURA and HER HUSBAND, PEDRO D. CORPUZ, oppositors-appellees.
PARAS, J.:
This is an appeal from the order of the Court of First Instance of Nueva Ecija, Guimba,
Branch V in Special Proceedings No. 812, Testate of the late Gregorio Venture, dated
October 5, 1965, removing the appellant Maria Ventura as executrix and administratrix
of the estate of the late Gregorio Ventura, and in her place appointing the appellees
Mercedes Ventura and Gregoria Ventura as joint administratrices of the estate. (Record
on Appeal, pp. 120-131.)
Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio Ventura
while Miguel Ventura and Juana Cardona are his son and saving spouse who are also
the brother and mother of Maria Ventura. On the other hand, appellees Mercedes and
Gregoria Ventura are the deceased's legitimate children with his former wife, the late
Paulina Simpliciano (Record on Appeal, p. 122) but the paternity of appellees was
denied by the deceased in his will (Record on Appeal, p. 4).
On December 14,1953, Gregorio Ventura filed a petition for the probate of his will
which did not include the appellees and the petition was docketed as Special
Proceedings No. 812 (Record on Appeal, pp. 1-3). In the said will, the appellant Maria
Ventura, although an illegitimate child, was named and appointed by the testator to be
the executrix of his will and the administratrix of his estate (Record on Appeal, p. 7).
In due course, said will was admitted to probate on January 14,1954 (Record on
Appeal, pp. 8-10). Gregorio Ventura died on September 26,1955. On October 10,
On June 17,1960, she filed her accounts of administration for the years 1955 to 1960,
inclusive. (Record on Appeal, pp. 20-27). Said account of administration was opposed
by the spouses Mercedes Ventura and Pedro Corpuz on July 25, 1960 (Record on
Appeal, pp. 27-33) and by Exequiel Victorio and Gregoria Ventura on August 5,1963
(Record on Appeal, pp. 46-50). Both oppositions assailed the veracity of the report as
not reflecting the true income of the estate and the expenses which allegedly are not
administration expenses. But on January 25, 1961, Maria Ventura filed a motion to
hold in abeyance the approval of the accounts of administration or to have their
approval without the opposition of the spouses Mercedes Ventura and Pedro Corpuz
and Gregoria Ventura and Exequiel Victorio on the ground that the question of the
paternity of Mercedes Ventura and Gregoria Ventura is still pending final determination
before the Supreme Court and that should they be adjudged the adulterous children of
testator, as claimed, they are not entitled to inherit nor to oppose the approval of the
counts of administration (Record on Appeals, pp. 33-36). Spouses Mercedes Ventura
and Pedro Corpuz filed on February 2, 1961 their opposition to the motion to hold in
abeyance the approval of the accounts of administration on the ground that Mercedes
and Gregoria Ventura had already been declared by the Court of First Instance in Civil
Cases No. 1064 and 1476, which cases are supposed to be pending before the
Supreme Court, as the legitimate children of Gregorio Ventura, hence, they have
reason to protect their interest (Record on Appeal, pp. 36-39). On February 9,1961,
the motion to hold in abeyance the approval of the accounts was denied (Record on
Appeal, pp. 39-40).
It appears that on July 12, 1963, the Court set the case for pre-trial on August 7, 1963
in connection with the accounts of the executrix Maria Ventura dated June 17, 1960
and the Motion to Annul Provision of Will dated July 14,1962 of Mercedes Ventura
(Record on Appeal, p. 45).
On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria
Ventura, namely: (1) motion to remove the executrix Maria Ventura which was
supplemented on April 27, 1965; (2) motion to require her to deposit the harvest of
palay of the property under administration in a bonded warehouse; (3) motion to
render an accounting of the proceeds and expenses of Administration; and (4) motion
to require her to include in the inventory of the estate certain excluded properties
(Record on Appeal, pp. 50-53; 71). An opposition to said motions was filed by the heirs
Juana Cardona and Miguel Ventura and by the executrix Maria Ventura herself (Record
on Appeal, pp. 56-61; 61-70 and 71).

On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint motions to
require an Up-to-date Accounting and to Require Executrix Ventura to Include Excluded
Properties in Her Inventory were ordered withdrawn (Order dated February 2, 1965,
Record on Appeal, p. 73). The other two motions were however set for hearing.
The grounds of aforesaid joint motions to remove the executrix Maria Ventura are: (1)
that she is grossly incompetent; (2) that she has maliciously and purposely concealed
certain properties of the estate in the inventory; (3) that she is merely an illegitimate
daughter who can have no harmonious relations with the appellees; (4) that the
executrix has neglected to render her accounts and failed to comply with the Order of
the Court of December 12, 1963, requiring her to file her accounts of administration for
the years 1961 to 1963 (Record on Appeal, pp. 70 and 75-76) and the Order of June
11, 1964, reiterating aforesaid Order of December 12, 1963 (Record on Appeal, p. 76);
and (5) that she is with permanent physical defect hindering her from efficiently
performing her duties as an executrix (Record on Appeal, pp. 50-53 and 74-79).
On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of
administration covering the period 1961 to 1965 (Record on Appeal, pp. 79-84) which
were again opposed by the spouses Exequiel Victorio and Gregoria Ventura on
September 21, 1965 and by the spouses Mercedes Ventura and Pedro Corpuz on
September 29, 1965 (Record on Appeal, pp. 106-120). On June 2, 1965, the executrix
filed her supplemental opposition to the aforesaid four motions, and prayed that the
joint supplemental motion to remove the executrix be denied or held in abeyance until
after the status of Mercedes and Gregoria Ventura as heirs of the testator is finally
decided (Record on Appeal, pp. 85-1 01). On June 3, 1965, the Court, finding that the
estate taxes have not been paid, ordered the administratrix to pay the same within
thirty (30) days. On September 13, 1965, the lower court denied the suspension of the
proceedings and deferred the resolution of the joint motion to remove executrix Maria
Ventura until after the examination of the physical fitness of said executrix to
undertake her duties as such. Also, it ordered the deposit of all palay to be harvested
in the next agricultural year and subsequent years to be deposited in a bonded
warehouse to be selected by the Court and the palay so deposited shall not be
withdrawn without the express permission of the Court (Record on Appeal, pp. 103105). On September 21, 1965, spouses Exequiel Victorio and Gregoria Ventura filed
their opposition to the accounts of administration of Maria Ventura dated May 17,
1965, while that of spouses Mercedes Ventura and Pedro Corpuz was filed on
September 29, 1965, both oppositions alleging among others that said accounts do not
reflect the true and actual income of the estate and that the expenses reported
thereunder are fake, exhorbitant and speculative (Record on Appeal, pp. 106-120).
On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has
squandered the funds of the estate, was inefficient and incompetent, has failed to
comply with the orders of the Court in the matter of presenting up-to-date statements
of accounts and neglected to pay the real estate taxes of the estate, rendered the
questioned decision, the dispositive portion of which reads:
WHEREFORE, Maria Ventura is hereby removed as executrix and

administratrix of the estate and in her place Mercedes Ventura and
Gregoria Ventura are hereby appointed joint a tratrices of the estate
upon filing by each of them of a bond of P 7,000.00. Let letters of
administration be issued to Mercedes Ventura and Gregoria Ventura
upon their qualification.
IT IS SO ORDERED.
(Record on Appeal pp. 120-131).
Hence, this appeal.
In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel Ventura
assign the following errors allegedly committed by the probate court:
ASSIGNMENT OF ERRORS
I
The lower court erred in ordering the removal of Maria Ventura as
executrix and administratrix of the will and estate of the deceased
Gregorio Ventura without giving her full opportunity to be heard and
to present all her evidence.
II
The lower court erred in finding that the executrix Maria Ventura had
squandered and dissipated the funds of the estate under her
administration.
III
The lower court erred in finding that the executrix Maria Ventura was
inefficient and incompetent.
IV
That, considering the circumtances surrounding the case, the lower
court erred in finding that the failure of Maria Ventura to submit her
periodical account had justified her removal as executrix.
V

The lower court erred in considering as an established fact that the
appellees Mercedes Ventura and Gregoria Ventura are the legitimate
daughters of the deceased Gregorio Ventura.
VI
The lower court erred in finding that the devises and bequests in
favor of Maria Ventura and Miguel Ventura as specified in paragraph 8
of the last Will and Testament of the late Gregorio Ventura have ipso
facto been annulled.
VII
The lower court erred in allowing the appellees Mercedes Ventura and
Gregoria Ventura to intervene in the hearing of the accounts of
administration submitted by the executrix Maria Ventura and/or in
not suspending the hearing of the said accounts until the said
appellees have finally established their status as legitimate children
of the deceased Gregorio Ventura.
VIII
The lower court erred in appointing (even without a proper petition
for appointment and much less a hearing on the appointment of) the
appellees Mercedes Ventura and Gregoria Ventura who have an
adverse interest as joint administratrices of the estate of the
deceased Gregorio Ventura.
IX
The lower court erred in not appointing the surviving widow, Juana
Cardona, or Miguel Ventura, as administratrix of the estate of
Gregorio Ventura in case the removal of Maria Ventura as executrix
and administratrix thereof is legally justified.
On July 19,1967, Atty. Arturo Tolentino (representing appellees Mercedes Ventura and
Pedro Corpuz) and Atty. Jose J. Francisco (representing Gregoria and Exequiel
Victoria), having failed to submit their respective briefs within the period for the
purpose, which expired on July 2 and May 29,1967, respectively, the Supreme Court
Resolved to consider this case submitted for decision WITHOUT SAID APPELLEES'
BRIEF (Rollo, p. 152).
The crucial issue in this case is whether or not the removal of Maria Ventura as
executrix is legally justified. This issue has, however, become moot and academic in
view of the decision of this Court in related cases.
At the outset, it is worthy to note that aside from the instant special proceedings, there
are two other civil cases involving the estate of the deceased Gregoria Ventura,
namely, Civil Cases Nos. 1064 and 1476. Civil Case No. 1064 was filed on December 2,
1952 by herein appellee Gregoria Ventura in the Court of First Instance of Nueva Ecija,
Branch I, against the other appellees herein Mercedes Ventura and their father,
Gregorio Ventura. Later Mercedes Ventura joined cause with Gregoria Ventura. (Record
on Appeal, p. 95). Gregoria and Mercedes Ventura claimed that they are the legitimate
children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and
asked that one-half of the properties described in the complaint be declared as the
share of their mother in the conjugal partnership, with them as the only forced heirs of
their mother Paulina (Joint Brief for the Appellants, pp. 53-68).
Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all
surnamed Simpliciano, against Gregorio Ventura and the two sisters, Mercedes and
Gregoria Ventura, before the Court of First Instance of Nueva Ecija, Branch I. They
alleged that as the only children of Modesto Simpliciano, sole brother of Paulina
Simpliciano, they, instead of Mercedes and Gregoria Ventura, whom they claimed are
adulterous children of Paulina with another man, Teodoro Ventura and as such are not
entitled to inherit from her, are the ones who should inherit the share of Paulina
Simpliciano in the conjugal Partnership with Gregorio Ventura (Joint Brief For The
Appealant,pp.69-79)
It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos. 1064
and 1476, the lower court rendered its judgment, the dispositive portion of which
reads as follows:
X
Considering that there are in fact two (2) factions representing
opposite interests in the estate, the lower court erred in not
appointing Juana Cardona, or Miguel Ventura, as one of the two (2)
administratrices.' (Joint Brief for the Appellants, pp. 1-4)
WHEREFORE, judgment is hereby rendered declaring Mercedes

Ventura and Gregoria Ventura to be the ligitimate daughters of
Paulina Simpliciano and Gregorio Ventura; declaring that as such
ligitimate daughters of Paulina Simpliciano they are entitled to 1/2 of
the properties described in paragraph six of the complaint; ordering
the defendant Maria Ventura, as administratrix of the estate of
Gregorio Ventura to pay to Mercedes Ventura and Gregorio Ventura
the amount of P 19,074.09 which shall be divided equally between

Mercedes and Gregoria Ventura declaring Mercedes Ventura and
Pedro Corpuz are the exclusive owners of the property describe in the
certificate of Title Nos. T-1102, 212, T-1213, T-1214, Exhibits 32, 33,
34 and 35, respectively; ordering Mercedes Ventura and Pedro D.
Corpuz to pay to the conjugal partnership of Gregorio Ventura and
Paulina Simpliciano the sum of P100,000.00, one-half of which shall
pertain to the estate of Gregorio Ventura and the other half to the
estate of Paulina Simpliciano to whom Mercedes and Gregoria
Ventura have succeeded, to be divided between Mercedes and
Gregoria in equal parts; and dismissing Civil Case No. 1476. The
parties are urged to arrive at an amicable partition of the properties
herein adjudicated within twenty days from receipt of this decision.
Upon their failure to do so, the Court shall appoint commissioners to
divide the properties in accordance with the terms of the decision.
Without pronouncements as to costs. (Emphasis supplied). (Joint
Brief for the Appellants, pp. 3738.)
Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the provisions
of the will of the deceased Gregorio Ventura in Special Proceedings No. 812, which
motion was opposed by Miguel Ventura and Juana Cardona and later by Maria Ventura.
They claimed that the decision dated November 4,1959 in Civil Cases Nos. 1064 and
1476 was not yet final.
On February 26,1964, the court annulled the institution of the heirs in the probated will
of Gregorio Ventura. The motion for reconsideration of the aforesaid order filed by
executrix Maria Ventura was denied on June 11, 1964.
Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964 orders
of the probate court in Special Proceedings No. 812 before the Supreme Court and was
docketed as G.R. No. L-23878. On May 27,1977, this Court, through then Associate
Justice Antonio P. Barredo, ruled, as follows:
And so, acting on appellees' motion to dismiss appeal, it is Our
considered opinion that the decision in Civil Cases Nos.1064 and
1476 declaring that appellees Mercedes and Gregoria Ventura are the
ligimate children of the deceased Gregorio Ventura and his wife,
Paulina Simpliciano, and as such are entitled to the annulment of the
institution of heirs made in the probated will of said deceased
became final and executory upon the finality of the order, approving
ther partition directed in the decision in question. We need not
indulge in any discussion as to whether or not, as of the time the
orders here in question were issued by the trial court said decision
had the nature of an interlocutory order only. To be sure, in the case
of Miranda, aforementioned, the opinion of the majority of the Court
may well be invoked against appellant's pose. In any event, even if
the Court were minded to modify again Miranda and go back to

Fuentebella and Zaldariaga and it is not, as of now there can be
no question that the approval by the trial court in Civil Cases Nos.
1064 and 1476 of the partition report of the commissioners
appointed for the purpose, one of whom, Emmanuel Mariano, is the
husband of appellant, put a definite end to those cases, leaving
nothing else to be done in the trial court. That order of approval is an
appealable one, and inasmuch as no appeal has been taken from the
same, it is beyond dispute that the decision in controversy has
already become final and executory in all respects. Hence, the case
at bar has become moot and academic. (Ventura vs. Ventura, 77
SCRA 159, May 27,1977)
Under Article 854 of the Civil Code, "the pretention 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," and as a
result, intestacy follows, thereby rendering the previous appointment of Maria Ventura
as executrix moot and academic. This would now necessitate the appointment of
another administrator, under the following provision:
Section 6, Rule 78 of the Rules of Court:
When and to whom letters of administration granted.-If no executor
is named in the will, or the executor or executors are incompetent,
refuse the trust, or fail to give bond, or a person dies intestate, a
petition shall be granted:
(a) To the surviving husband or wife, as the case may be or next of
kin, or both, in the discretion of the court, or to such person as such
surviving husband or wife, or both, in the discretion of the court, or
to such person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to serve;"
xxx xxx xxx
In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana
Cardona while the next of kin are: Mercedes and Gregoria Ventura and Maria and
Miguel Ventura. The "next of kin" has been defined as those persons who are entitled
under the statute of distribution to the decedent's property (Cooper vs. Cooper, 43 Ind.
A. 620, 88 NE 341). It is generally said that "the nearest of kin, whose interest in the
estate is more preponderant, is preferred in the choice of administrator. 'Among
members of a class the strongest ground for preference is the amount or
preponderance of interest. As between next of kin, the nearest of kin is to be
preferred." (Cabanas, et al. vs. Enage et al., 40 Off. Gaz. 12 Suppl. 227; citing 12 Am.

Jur. Sec. 77, p. 416, cited in Francisco Vicente J., The Revised Rules of Court in the
Philippines, Vol. V-B 1970 Ed., p. 23).
Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in order to
represent both interests.
As decided by the lower court and sustained by the Supreme Court, Mercedes and
Gregoria Ventura are the legitimate children of Gregorio Ventura and his wife, the late
Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura they are
entitled to preference over the illegitimate children of Gregorio Ventura, namely: Maria
and Miguel Ventura. Hence, under the aforestated preference provided in Section 6 of
Rule 78, the person or persons to be appointed administrator are Juana Cardona, as
the surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana
PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana

Cardona and Miguel Ventura is hereby DISMISSED.
SO ORDERED.

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2. ID.; ID.; PROBATE MANDATORY; EXCEPTION. Generally, the probate of a will is

moved to dismiss the probate proceedings and requested authority to proceed by

4. ID.; ID.; ILLEGAL DECLARATION MAY BE DISREGARDED. The statement of the

legacy or devise of a thing belonging to another is void, if he erroneously believed that

6. ID.; ID.; TESTATRIX MAY NOT REQUIRE PAYMENT OF LEGITIMATES TO BE PAID IN

CASH IF WHOLE ESTATE IS NOT ASSIGNED TO ONE OR MORE CHILDREN. The

7. ID.; ID.; RENUNCIATION; EFFECT OF RENUNCIATION OF HEREDITARY RIGHTS.

effect independently of the attitude of the parties affected thereby and an

interpretation that will render a testamentary disposition operative takes precedence

8. ID.; ID.; ID.; INVALID DISPOSITION BY WILL OF ENTIRE CONJUGAL PARTNERSHIP

EXECUTOR IS APPOINTED; REASONS. The issuance of notice to creditors after a

regular executor or administrator is erroneous being contrary to the rules of court

EXECUTORS. The appointment of the branch Clerk of Court as special administrator

petitioners motion of April 7, 974 that its publication be held in abeyance.

Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they

probate of alleged will of Leodegaria Julian and requesting authority to proceed by

assets or allegedly effected a compromise of future legitimes. He prayed that the

ceremony if on its face it appears to be intrinsically void. Where practical

testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).

affected thereby" (Resolution, Vda. de Precilla v. Narciso, L-27200, August 8, 972, 46

56). Testacy is preferable to intestacy. An interpretation that will render a

testamentary disposition operative takes precedence over a construction that will

reveals that it appointed a special administrator. A notice to creditors is not in order if

Court, in providing that "immediately after granting letters of testamentary or of

contemplates the appointment of an executor or regular administrator and not that of

Benjamin H. Aquino for petitioner.

MELENCIO HERRERA, J.:+.wph!1

Succession| Sept. 15 |10

Succession| Sept. 15 |11

G.R. No. L-23445

June 23, 1966

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A comprehensive understanding of the term preterition employed in the law becomes a

2. Petitioner's sole assignment of error challenges the correctness of the conclusion

La pretericion consiste en omitar al heredero en el testamento. O no se le

Nov. 17, 1951

Succession| Sept. 15 |13

arbitraria, dentro del derecho positivo, reputar como legatario a un heredero

Succession| Sept. 15 |14

in themselves different. Institution of heirs is a bequest by universal title of

Succession| Sept. 15 |15

Respondent Intermediate Appellate Court granted private respondents' petition and

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G.R. No. L-26306 April 27, 1988

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WHEREFORE, Maria Ventura is hereby removed as executrix and

Succession| Sept. 15 |20

WHEREFORE, judgment is hereby rendered declaring Mercedes

Succession| Sept. 15 |21

the Court were minded to modify again Miranda and go back to

Succession| Sept. 15 |22

PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura, Juana

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