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Aznar vs.

Duncan Doctrine: Preterition Upon the widows death, it was discovered that she had
FACTS: executed two wills, in the first of which, she instituted Salud
Christensen died testatewherein he declared that he has no and Milagros as her heirs; and, in the second, she revoked the
living descendant or ascendant except a natural daughter same and left all her properties in favor of Milagros alone.
Lucy Duncan; that he is leaving the residue of his estate to Thus, the later will was allowed and the first rejected. Plaintiff
said Lucy Duncan; and that he is bequeathing the amount of then filed an action for the recovery of one-half portion of
P3,600.00 to Helen Garcia to whom he is not related in any properties left for them under Bibianos will. This action
way. The will was admitted to probate. In the decision afforded the defendant an opportunity to set up her right of
allowing the will the court declared that Helen Garcia was a ownership, not only of the fishpond under litigation, but of all
natural child of the deceased. Subsequently, in the partition theother properties willed and delivered to Salud, for being a
proceedings, an order was issued approving a project of spurious heir, and not entitled to any share in the estate of
partition wherein the estate was divided equally between Bibiano, thereby directly attacking thevalidity, not only of the
Lucy Duncan, whom the testator had expressly recognized in project of partition, but of the decision of the court based
his will as his natural daughter, and Helen Garcia, who had thereon. The defendant contends that the Project of Partition
been judicially declared as such after his death. The said order from which Saludacquired the fishpond in question is void ab
was based on the proposition that Helen Garcia had been initio. This was based on Article 1081 of the Civil Code of
preterited in the will thus resulting in the annulment of the 1889: A partition in which a person was believed to be an
institution of Lucy Duncan as heir; hence the estate passed to heir,without being so, has been included, shall be null and
both of them as if the deceased had died intestate. Lucy void. CFI rejected plaintiffs contention that since Bibiano was
Duncan appealed on the sole question of whether the estate, free to dispose of one-third (1/3) of his estate under the old
after deducting the legacies, should pertain to her and to Civil Code, his will was valid in favor of Salud to the extent, at
Helen Garcia in equal shares, or whether the inheritance of least, of such free part. And it concluded that, as defendant
Lucy Duncan as instituted heirs should be merely reduced to Milagros was the only true heir of Bibiano Barretto, she was
the extent necessary to cover thelegitime of Helen Garcia to entitled to recover from Salud, and from the latter's children
1/4 of the entire estate. She contends that the case should be and successors, all the Properties received by her from
governed by Art. 906 of the Civil Code.Helen Garcia, on the Bibiano's estate, in view of the provisions of Art 1456 of the
other hand, contends that the case should be governed by new Civil Code establishing that property acquired by fraud or
Art. 854 of the Civil Code. mistake is held by its acquirerin implied trust for the real
owner.
ISSUE: Whether or not there was preterition in the instant ISSUE:
case. 1. WON the partition between Salud and Milagros in the
proceedings for the settlement of the estate of Bibiano is
HELD: void.
It is submitted that in this case there is no preterition within 2. WON there was preterition?
the meaning of Art. 854 of the Civil Code. It is true that there HELD:
is a total omission of the acknowledged natural child in the 1. NO
testators will, and apparently the rule regarding preterition The agreement of partition was not only ratified by the
should, therefore, be applied. But then, we must consider the court's decree of distribution, but actually consummated, so
fact that a donation inter vivos is actually given to a much so that the titles inthe name of the deceased were
compulsory heir as an advance on his inheritance. That is why cancelled, and new certificates issued in favor of theheirs,
in the partition of the estate of the donor upon the death of long before the decree was attacked. The only instance that
the latter, it must be collated and subsequently, it must be we can think of in which a party interested in a probate
charged against the legitime of such compulsory heir. proceeding may have a final liquidation set aside is when he is
Consequently, there is no omission in this case which is left out by reason of circumstances beyond his control or
complete and total in character. Hence, if there is an through mistake or inadvertence not imputable to negligence.
impairment of the legitime of the acknowledged natural child Even then, the better practice to secure relief isreopening of
because the value of the property donated is less than the the same case by proper motion within the reglementary
legitime to which he is entitled by operation of law, his period, insteadof an independent action the effect of which, if
remedy lies in the right granted in Art. 906 of the Civil Code. successful, would be, for another courtor judge to throw out a
He can ask for the completion of his legitime. decision or order already final and executed and
reshuffleproperties long ago distributed and disposed of. Art.
1081 has been misapplied. Salud admittedly had been
REYES vs. BARRETTO-DATU Topic: Effect of Inclusion of instituted heir in the late Bibiano Barretto's last will and
Intruder in Partition testament together with defendant Milagros; hence,the
FACTS: partition had between them could not be one such had with a
Bibiano Barretto was married to Maria Gerardo. During their party who was believed to be an heir without really being
lifetime they acquired a vast estate, consisting of real one, and was not null and void under said article.
properties in Manila, Pampanga, and Bulacan. When Bibiano
died, he left his share of these properties in a will to Salud 2. NO.
Barretto, mother of plaintiff's wards, and Lucia Milagros The fact that Milagros was allotted in her father's will a share
Barretto and a small portion as legacies to his two sisters Rosa smaller than her legitime does not invalidate the institution of
and Felisa and his nephews and nieces. Usufruct was reserved Salud as heir. There was no preterition, or total ommission of
for his widow. The widow then prepared a project of partition a forced heir.
which she signed in her own behalf, and as guardian of the
minor Milagros. This was approved by CFI Manila. As a Del Rosario v. Del Rosario
consequence, Salud Barretto took immediate possession of FACTS: A made a will giving to B a legacy. B was pointed out
her share and secured the cancellation of the originals and by name in the will, but was also described as the natural
the issuance of new titles in her own name. child of C. In case B does not, or cannot present proof that he
is the natural child of C, do you believe that he can still get the
legacy?
amounts to a declaration that nothing at all was
written.
HELD: Yes. If a legatee is pointed out by name in the will, the
fact that he is referred to as the natural son of a third person
does not necessarily make the legacy conditional upon proof Nuguid vs Nuguid Topic/Doctrine: Effects of Preterition
of such relationship, the reference being descriptive merely. FACTS:
Of course, had it clearly been shown to be a condition, the Rosario died without descendants, legitimate or illegitimate.
answer would have been different. Surviving her were her legitimate parents Felix and Paz, and
6 brothers and sisters.Remedios, one of the sister filed in
Enrique, Gloria and Ramon del Rosario, natural children of court a holographic will allegedly executed by Rosario
Don Clemente del Rosario here, Enrique and Ramon will instituting the former as the sole, universal heir of all her
inherit, even if they are not natural children, for this latter properties. She prayed that said will be admitted to probate
circumstance is merely an additional description of persons and that letter of administration be issued to her.
already well-identified.
Felix and Paz opposed to the probate of the will on the
ACAIN vs IAC Topic/Doctrine: Preterition ground that by the institution of Remedios as universal heir of
FACTS: the deceased, oppositors who are compulsory heirs in the
Constantino Acain filed on the Regional Trial Court a direct ascending line were illegally preterited and that in
petition for the probate of the will of his late Uncle, consequence, the institution is void.
Nemesio Acain, on the premise that the latter died
leaving a will in which the former and his brothers and Article 854 provides that preterition of one, some or all of the
sisters were instituted as heirs. After the petition was compulsory heirs in the direct line, whether living at the time
set for hearing in the lower court, Virginia Fernandez of the execution of the will or born after the death of the
and Rosa Diongson, a legally adopted daughter and the testator, shall annul the institution of heir.Petitioners
widow of the deceased respectively, filed a motion to contention is that the present is a case of ineffective
dismiss on the grounds that: (1) Constantino Acain has disinheritance rather than one of preterition drawing the
no legal capacity to institute the proceedings; (2) he is conclusion that Article 854 does not apply in the case at bar.
merely a universal heir; and (3) the widow and the
adopted daughter have been pretirited. Said motion ISSUE: Whether or not the institution of one of the sister of
was denied as well as the subsequent motion for the deceased as the sole, universal heir preterited the
reconsideration. Consequently, Fernandez and compulsory heirs.
Diongson filed with the Supreme Court a petition for
certiorari and prohibition with preliminary injunction HELD:
which was subsequently referred to the Intermediate Yes. Where the deceased left no descendants, legitimate or
Appellate Court. IAC granted Fernandez and illegitimate, but she left forced heirs in the direct ascending
Diongsons petition and ordered the trial court to dismiss line her parents, and her holographic will does not explicitly
the petition for probate of the will. Due to the denial of disinherit them but simply omits their names altogether, the
Acains motion for reconsideration, he then filed a case is one of preterition of the parents, not a case of
petition for review on certiorari before the Supreme ineffective disinheritance.
Court.
Preterition consists in the omission in the testators will of
ISSUE: Whether or not Virginia Fernandez and Rosa Diongson
the forced heirs or anyone of them, either because they are
have been pretirited.
not mentioned therein, or, through mentioned, they are
RULING: neither instituted as heirs nor are expressly disinherited.
Disinheritance, in turn, is a testamentary disposition
Article 854 of the Civil Code : provides
depriving any compulsory heir of his share in the legitime for
Preterition consists in the omission in the testators will a cause authorized by law.
of the forced heirs or anyone of them either because
they are not mentioned therein, or though mentioned, Where the one sentence will institutes the petitioner as the
they are neither instituted as heirs nor are expressly sole, universal heir and preterits the parents of the testatrix,
disinherited. Insofar as the widow is concerned, Article and it contains no specific legacies or bequests, such universal
854 may not apply as she does not ascend or descend institution of petitioner, by itself, is void. And intestate
from the testator, although she is a compulsory heir. succession ensues.
However, the same thing cannot be said of the legally
adopted daughter. Under Article 39 of P.D. No. 603,
known as the Child and Youth Welfare Code, adoption
gives to the adopted person the same rights and duties
as if he were a legitimate child of the adopter and
makes the adopted person a legal heir of the adopter.
It cannot be denied that she was totally omitted and
preterited in the will and that both the 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.
The universal institution of Acain 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

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