G.R. No.

L-47799

June 13, 1941

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamiz
&
Capistrano
Gullas, Leuterio, Tanner & Laput for respondents.

for

petitioners.

MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children
named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage with
Ignacia Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia,
daughter in the first marriage, died on October 2, 1923, that is, a little less than eight years before
the death of said Agripino Neri y Chavez, and was survived by seven children named Remedios,
Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament, which was
admitted to probate on March 21, 1932, he willed that his children by the first marriage shall have no
longer any participation in his estate, as they had already received their corresponding shares during
his lifetime. At the hearing for the declaration of heirs, the trial court found, contrary to what the
testator had declared in his will, that all his children by the first and second marriages intestate heirs
of the deceased without prejudice to one-half of the improvements introduced in the properties
during the existence of the last conjugal partnership, which should belong to Ignacia Akutin. The
Court of Appeals affirmed the trial court's decision with the modification that the will was "valid with
respect to the two-thirds part which the testator could freely dispose of. "This judgment of the Court
of Appeals is now sought to be reviewed in this petition for certiorari.
The decisive question here raised is whether, upon the foregoing facts, the omission of the children
of the first marriage annuls the institution of the children of the first marriage as sole heirs of the
testator, or whether the will may be held valid, at least with respect to one-third of the estate which
the testator may dispose of as legacy and to the other one-third which he may bequeath as
betterment, to said children of the second marriage.
The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part as
follows:
Disinheritance made without a statement of the cause, or for a cause the truth of which, if
contradicted, is not proven, ... shall annul the institution of the heir in so far as it prejudices
the person disinherited; but the legacies, betterments, and other testamentary dispositions,
in so far as they do no encroach upon the legitime, shall be valid.
The appellate court thus seemed to have rested its judgment upon the impression that the testator
had intended to disinherit, though ineffectively, the children of the first marriage. There is nothing in
the will that supports this conclusion. True, the testator expressly denied them any share in his
estate; but the denial was predicated, not upon the desire to disinherit, but upon the belief, mistaken
though it was, that the children by the first marriage had already received more than their
corresponding shares in his lifetime in the form of advancement. Such belief conclusively negatives
all inference as to any intention to disinherit, unless his statement to that effect is prove to be
deliberately fictitious, a fact not found by the Court of Appeals. The situation contemplated in the

above provision is one in which the purpose to disinherit is clear, but upon a cause not stated or not
proved, a situation which does not obtain in the instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas justa del problema que hemos hecho notar al
comentar el articulo, seria distinguir el caso en que el heredero omitido viviese al otorgarse
el testamento, siendo conocida su existencia por el testador, de aquel en que, o naciese
despues, o se ignorase su existencia, aplicando en el primer caso la doctrina del articulo
851, y en el segundo la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on mere principles (en el terreno de los
principios) and not on the express provisions of the law. Manresa himself admits that according to
law, "no existe hoy cuestion alguna en esta materia: la pretericion produce siempre los mismos
efectos, ya se refiera a personas vivas al hacer el testamento o nacidas despues. Este ultimo grupo
solo puede hacer relacion a los descendientes legitimos, siempre que ademas tengan derecho a
legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the
children by the first marriage, and of involuntary preterition of the children by the deceased Getulia,
also of the first marriage, and is thus governed by the provisions of article 814 of the Civil Code,
which read in part as follows:
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 of the testator, shall void the institution of heir;
but the legacies and betterments shall be valid, in so far as they are not inofficious.
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.(Cf. 6 Manresa, 346.) In the instant case, while the children of the first
marriage were mentioned in the will, they were not accorded any share in the heriditary property,
without expressly being disinherited. It is, therefore, a clear case of preterition as contended by
appellants. The omission of the forced heirs or anyone of them, whether voluntary or involuntary, is a
preterition if the purpose to disinherit is not expressly made or is not at least manifest.
Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious"
(art. 814 of the Civil Code), preterition avoids the institution of heirs and gives rise to intestate
succession. (Art. 814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 and
February 27, 1909.) In the instant case, no such legacies or betterments have been made by the
testator. "Mejoras" or betterments must be expressly provided, according to articles 825 and 828 of
the Civil Code, and where no express provision therefor is made in the will, the law would presume
that the testator had no intention to that effect. (Cf. 6 Manresa, 479.) In the will here in question, no
express betterment is made in favor of the children by the second marriage; neither is there any
legacy expressly made in their behalf consisting of the third available for free disposal. The whole
inheritance is accorded the heirs by the second marriage upon the mistaken belief that the heirs by
the first marriage have already received their shares. Were it not for this mistake, the testator's
intention, as may be clearly inferred from his will, would have been to divide his property equally
among all his children.

Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without prejudice to
the widow's legal usufruct, with costs against respondents.
Avancea, C.J., Diaz, Laurel and Horrilleno, JJ., concur.