Abellana-Bocayo v Ferraris-Borromeo

ABELLANA-BACAYO V. FERRARIS-BORROMEO, 14 SCRA 986 (1965)

DOCTRINE: As an exception to the general rule that the right of representation is available only in
the descending line, Art. 975 of the Civil Code permits representation in the collateral line (but only
in intestate succession) insofar as nephews and nieces of the decedent are concerned. When such
nephews and nieces inherit by representation, they succeed to that portion which their predeceased
or incapacitated father or mother would have otherwise been entitled to inherit. By right of
representation, these nephews and nieces shall be deemed to be two degrees remote from the
decedent. However, the prerequisite for the exercise of the right of representation is that the
nephews and nieces must concur with at least one uncle or aunt. Otherwise, nephews and nieces
will inherit in their own right as third degree relatives of the decedent.
It must also be noted that even when they inherit in their own right as third degree relatives,
nephews and nieces are preferred over the uncles and aunts of the decedent (who are likewise
relatives within the third degree of the decedent). This is because of the order of intestate succession
which ranks brothers, sisters, nephews and nieces fourth in the order of succession, whereas other
collateral relatives, including uncles and aunts of the deceased, are ranked fifth. Finally, the exercise
of the right of representation is subject to the barrier between the legitimate and illegitimate families
under Article 992.
In the more recent case of Delgado vda. de la Rosa v Heirs of Marciana Rustia vda. de
Damian [G.R. No. 155733, 27 January 2006 (480 SCRA 334)], the Supreme Court through Justice
Corona ruled that (u)nder Article 972 of the New Civil Code, the right of representation in the
collateral line takes place only in favor of children of brothers and sisters (nephews and nieces),
Consequently, it cannot be exercised by grandnephews and grandnieces.
Likewise, in the case of Bagugu v Piedad, Justice Vitug clarified that the right of
representation is generally available only in the descending line, never in the ascending. In the
collateral line, the right is limited to children of brothers and sisters who concur with uncles and/or
aunts. No other collateral relative can benefit from the right of representation.

FACTS: Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to
Intramuros, Manila. She was known to have resided there continuously until 1944. Thereafter, up
to the filing on December 22, 1960 of the petition for the summary settlement of her estate, she
has not been heard of and her whereabouts are still unknown. More than ten (10) years having
elapsed since the last time she was known to be alive, she was declared presumptively dead for
purposes of opening her succession and distributing her estate among her heirs.
1. The deceased Melodia Feraris was survived only by collateral relatives, namely Filomena
Abellana de Bacayo, an aunt and half-sister of decedents father, Anacleto Ferraris; and
by Gaudencia, Catalina,Conchita, and Juanito, all surname Ferraris, her nieces and
nephew, who were the children of Melodias only brother of full blood, Arturo Ferraris,
who predeceased the decedent.

2. The trial court ruled that the children of the only predeceased brother of the decedent,
exclude the aunt of the same decedent for the reason that the former are nearer in degree
(2 degrees) than the latter since nieces and nephews succeed by right of representation,
while the aunt is 3 degrees distant from the decedent, and that other collateral relatives
are excluded by brothers or sisters or children of brothers or sisters of the decedent in
accordance with article 1009 of the New Civil Code.
3. Petitioner-appellant contends that she is of equal degree of relationship as the oppositors
(3 degrees removed from the decedent) and that under 975 of the New Civil Code, no
right of representation could take place when the nieces and nephew of the decedent do
not concur with an uncle or aunt, but rather the former succeed in their own right.

ISSUE: Who should inherit the intestate estate of a deceased person when he or she is survived
only by collateral relatives, to wit an aunt and the children of a brother who predeceased him or
her?
HELD: The Court held that as an aunt of the deceased she is as far distant as the nephews from
the decedent (3 degrees) since in the collateral line to which both kinds of relatives belong
degrees are counted by first ascending to the common ancestor and hen descending to the heir
(Civil Code, Art. 966). Also, nephews and nieces alone do not inherit by right of representation
(i.e.. per stirpes) unless concurring with brothers or sisters of the deceased, as provided by Art.
975.
The Court held that in case of intestacy, nephews and nieces of the de cujus exclude all other
collaterals (aunt and uncles, first cousins, etc.) from the succession. Under Art. 1009, the absence
of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals
(uncles, cousins, etc.) being called to the succession.
Tolentino expressly states:
Other collaterals. The last of the relatives of the decedent to succeed in intestate
succession are the collaterals other than brothers or sisters or children of brothers or
sisters. They are, however, limited to relatives within the fifth degree. Beyond this, we
can safely say there is hardly any affection to merit the succession of collaterals. Under
the law, therefore, relatives beyond the fifth degree are no longer considered as relatives,
for successional purposes.
Article 1009 does not state any order of preference. However, this article should be
understood in connection with the general rule that the nearest relatives exclude the
farther. Collaterals of the same degree inherit in equal parts, there being no right of

representation. They succeed without distinction of lines or preference among them on

account of the whole blood relationship. (Emphasis supplied)
The Court ruled that under the laws of succession, a decedents uncles and aunts may not
succeed ab intestate so long as nephews and nieces of the decedent survive and are willing and
qualified to succeed.