XII. PRETERITION. Arts. 854, 906, 855, 918

Heirs of Policronio Ureta, Sr. v. Heirs of Liberato Ureta, G.R. No. 165748 and 165930, September 14, 2011

  

Republic of the PhilippinesSupreme Court

Manila

 THIRD DIVISION

  HEIRS OF POLICRONIO M. URETA, SR., namely: CONRADO B. URETA, MACARIO B. URETA, GLORIA URETA-GONZALES, ROMEO B. URETA, RITA URETA-SOLANO, NENA URETA-TONGCUA, VENANCIO B. URETA, LILIA URETA-TAYCO, and HEIRS OF POLICRONIO B. URETA, JR., namely: MIGUEL T. URETA, RAMON POLICRONIO T. URETA, EMMANUEL T. URETA, and BERNADETTE T. URETA,

G.R. No. 165748

Petitioners,

- versus -

HEIRS OF LIBERATO M. URETA, namely: TERESA F. URETA, AMPARO URETA-CASTILLO, IGNACIO F. URETA, SR., EMIRITO F. URETA, WILKIE F. URETA, LIBERATO F. URETA, JR., RAY F. URETA,

ZALDY F. URETA, and MILA JEAN URETA CIPRIANO;HEIRS OF PRUDENCIA URETA PARADERO, namely: WILLIAM U. PARADERO, WARLITO U. PARADERO, CARMENCITA P. PERLAS, CRISTINA P. CORDOVA, EDNA P. GALLARDO, LETICIA P. REYES; NARCISO M. URETA;VICENTE M. URETA;HEIRS OF FRANCISCO M. URETA, namely: EDITA T. URETA-REYES and LOLLIE T. URETA-VILLARUEL; ROQUE M. URETA; ADELA URETA-GONZALES; HEIRS OF INOCENCIO M. URETA, namely: BENILDA V. URETA, ALFONSO V. URETA II, DICK RICARDO V. URETA, and ENRIQUE V. URETA; MERLINDA U. RIVERA; JORGE URETA; ANDRES URETA, WENEFREDA U. TARAN; and BENEDICT URETA,

Respondents.x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xHEIRS OF LIBERATO M. URETA, namely: TERESA F. URETA, AMPARO URETA-CASTILLO, IGNACIO F. URETA, SR., EMIRITO F. URETA, WILKIE F. URETA, LIBERATO F. URETA, JR., RAY F. URETA, ZALDY F. URETA, and MILA JEAN URETA CIPRIANO;HEIRS OF PRUDENCIA URETA PARADERO, namely: WILLIAM U. PARADERO, WARLITO U.

G.R. No. 165930

PARADERO, CARMENCITA P. PERLAS, CRISTINA P. CORDOVA, EDNA P. GALLARDO, LETICIA P. REYES; NARCISO M. URETA;VICENTE M. URETA;HEIRS OF FRANCISCO M. URETA, namely: EDITA T. URETA-REYES and LOLLIE T. URETA-VILLARUEL; ROQUE M. URETA; ADELA URETA-GONZALES; HEIRS OF INOCENCIO M. URETA, namely: BENILDA V. URETA, ALFONSO V. URETA II, DICK RICARDO V. URETA, and ENRIQUE V. URETA; MERLINDA U. RIVERA; JORGE URETA; ANDRES URETA, WENEFREDA U. TARAN; and BENEDICT URETA,

Petitioners,

- versus

HEIRS OF POLICRONIO M. URETA, SR., namely: CONRADO B. URETA, MACARIO B. URETA, GLORIA URETA-GONZALES, ROMEO B. URETA, RITA URETA-SOLANO, NENA URETA-TONGCUA, VENANCIO B. URETA, LILIA URETA-TAYCO, and HEIRS OF POLICRONIO B. URETA, JR., namely: MIGUEL T. URETA, RAMON POLICRONIO T. URETA, EMMANUEL T. URETA, and BERNADETTE T.

Present:

VELASCO, JR., J., Chairperson,PERALTA,ABAD,MENDOZA, andSERENO,* JJ.

Promulgated:

URETA,Respondents. September 14, 2011

 

 

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xD E C I S I O N

 MENDOZA, J.: 

These consolidated petitions for review on certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure assail the April 20, 2004 Decision[1] of the Court of Appeals (CA), and its October 14, 2004 Resolution[2] in C.A.-G.R. CV No. 71399, which affirmed with modification the April 26, 2001 Decision[3] of the Regional Trial Court, Branch 9, Kalibo, Aklan (RTC) in Civil Case No. 5026. The Facts In his lifetime, Alfonso Ureta (Alfonso) begot 14 children, namely, Policronio, Liberato, Narciso, Prudencia, Vicente, Francisco, Inocensio, Roque, Adela, Wenefreda, Merlinda, Benedicto, Jorge, and Andres. The children of Policronio (Heirs of Policronio), are opposed to the rest of Alfonsos children and their descendants (Heirs of Alfonso). Alfonso was financially well-off during his lifetime. He owned several fishpens, a fishpond, a sari-sari store, a passenger jeep, and was engaged in the buying and selling of copra. Policronio, the eldest, was the only child of Alfonso who failed to finish schooling and instead worked on his fathers lands. Sometime in October 1969, Alfonso and four of his children, namely, Policronio, Liberato, Prudencia, and Francisco, met at the house of Liberato. Francisco, who was then a municipal judge, suggested that in order to reduce the inheritance taxes, their father should make it appear that he had sold some of his lands to his children. Accordingly, Alfonso executed four (4) Deeds of Sale covering several parcels of land in favor of Policronio,[4] Liberato,[5]Prudencia,[6] and his common-law wife, Valeriana Dela Cruz.

[7] The Deed of Sale executed on October 25, 1969, in favor of Policronio, covered six parcels of land, which are the properties in dispute in this case. Since the sales were only made for taxation purposes and no monetary consideration was given, Alfonso continued to own, possess and enjoy the lands and their produce. When Alfonso died on October 11, 1972, Liberato acted as the administrator of his fathers estate. He was later succeeded by his sister Prudencia, and then by her daughter, Carmencita Perlas. Except for a portion of parcel 5, the rest of the parcels transferred to Policronio were tenanted by the Fernandez Family. These tenants never turned over the produce of the lands to Policronio or any of his heirs, but to Alfonso and, later, to the administrators of his estate. 

Policronio died on November 22, 1974. Except for the said portion of parcel 5, neither Policronio nor his heirs ever took possession of the subject lands.

 On April 19, 1989, Alfonsos heirs executed a Deed of Extra-Judicial

Partition,[8] which included all the lands that were covered by the four (4) deeds of sale that were previously executed by Alfonso for taxation purposes. Conrado, Policronios eldest son, representing the Heirs of Policronio, signed the Deed of Extra-Judicial Partition in behalf of his co-heirs. After their fathers death, the Heirs of Policronio found tax declarations in his name covering the six parcels of land. On June 15, 1995, they obtained a copy of the Deed of Sale executed on October 25, 1969 by Alfonso in favor of Policronio. Not long after, on July 30, 1995, the Heirs of Policronio allegedly learned about the Deed of Extra-Judicial Partition involving Alfonsos estate when it was published in the July 19, 1995 issue of the Aklan Reporter. 

Believing that the six parcels of land belonged to their late father, and as such, excluded from the Deed of Extra-Judicial Partition, the Heirs of Policronio sought to amicably settle the matter with the Heirs of Alfonso. Earnest efforts proving futile, the Heirs of Policronio filed a Complaint for

Declaration of Ownership, Recovery of Possession, Annulment of Documents, Partition, and Damages[9] against the Heirs of Alfonso before the RTC on November 17, 1995 where the following issues were submitted: (1) whether or not the Deed of Sale was valid; (2) whether or not the Deed of Extra-Judicial Partition was valid; and (3) who between the parties was entitled to damages. The Ruling of the RTC On April 26, 2001, the RTC dismissed the Complaint of the Heirs of Policronio and ruled in favor of the Heirs of Alfonso in a decision, the dispositive portion of which reads: 

WHEREFORE, the Court finds that the preponderance of evidence tilts in favor of the defendants, hence the instant case is hereby DISMISSED.

 The counterclaims are likewise DISMISSED. With costs against plaintiffs. SO ORDERED.

 The RTC found that the Heirs of Alfonso clearly established that the

Deed of Sale was null and void. It held that the Heirs of Policronio failed to rebut the evidence of the Heirs of Alfonso, which proved that the Deed of Sale in the possession of the former was one of the four (4) Deeds of Sale executed by Alfonso in favor of his 3 children and second wife for taxation purposes; that although tax declarations were issued in the name of Policronio, he or his heirs never took possession of the subject lands except a portion of parcel 5; and that all the produce were turned over by the tenants to Alfonso and the administrators of his estate and never to Policronio or his heirs.

 The RTC further found that there was no money involved in the sale.

Even granting that there was, as claimed by the Heirs of Policronio, ₱2,000.00 for six parcels of land, the amount was grossly inadequate. It was also noted that the aggregate area of the subject lands was more than double the average share adjudicated to each of the other children in the Deed of Extra-Judicial Partition; that the siblings of Policronio were the ones who

shared in the produce of the land; and that the Heirs of Policronio only paid real estate taxes in 1996 and 1997. The RTC opined that Policronio must have been aware that the transfer was merely for taxation purposes because he did not subsequently take possession of the properties even after the death of his father.

 The Deed of Extra-Judicial Partition, on the other hand, was

declared valid by the RTC as all the heirs of Alfonso were represented and received equal shares and all the requirements of a valid extra-judicial partition were met. The RTC considered Conrados claim that he did not understand the full significance of his signature when he signed in behalf of his co-heirs, as a gratutitous assertion. The RTC was of the view that when he admitted to have signed all the pages and personally appeared before the notary public, he was presumed to have understood their contents.

 Lastly, neither party was entitled to damages. The Heirs of Alfonso

failed to present testimony to serve as factual basis for moral damages, no document was presented to prove actual damages, and the Heirs of Policronio were found to have filed the case in good faith. The Ruling of the CA 

Aggrieved, the Heirs of Policronio appealed before the CA, which rendered a decision on April 20, 2004, the dispositive portion of which reads as follows: 

WHEREFORE, the appeal is PARTIALLY GRANTED. The appealed Decision, dated 26 April 2001, rendered by Hon. Judge Dean R. Telan of the Regional Trial Court of Kalibo, Aklan, Branch 9, is hereby AFFIRMED with MODIFICATION:

 1.) The Deed of Sale in favor of Policronio Ureta, Sr.,

dated 25 October 1969, covering six (6) parcels of land is hereby declared VOID for beingABSOLUTELY SIMULATED;

 2.) The Deed of Extra-Judicial Partition, dated 19

April 1989, is ANNULLED; 3.) The claim for actual and exemplary damages

are DISMISSED for lack of factual and legal basis.

 The case is hereby REMANDED to the court of origin

for the proper partition of ALFONSO URETAS Estate in accordance with Rule 69 of the 1997 Rules of Civil Procedure. No costs at this instance.

 SO ORDERED. 

 The CA affirmed the finding of the RTC that the Deed of Sale was void. It found the Deed of Sale to be absolutely simulated as the parties did not intend to be legally bound by it. As such, it produced no legal effects and did not alter the juridical situation of the parties. The CA also noted that Alfonso continued to exercise all the rights of an owner even after the execution of the Deed of Sale, as it was undisputed that he remained in possession of the subject parcels of land and enjoyed their produce until his death. 

Policronio, on the other hand, never exercised any rights pertaining to an owner over the subject lands from the time they were sold to him up until his death. He never took or attempted to take possession of the land even after his fathers death, never demanded delivery of the produce from the tenants, and never paid realty taxes on the properties. It was also noted that Policronio never disclosed the existence of the Deed of Sale to his children, as they were, in fact, surprised to discover its existence. The CA, thus, concluded that Policronio must have been aware that the transfer was only made for taxation purposes.

 The testimony of Amparo Castillo, as to the circumstances

surrounding the actual arrangement and agreement between the parties prior to the execution of the four (4) Deeds of Sale, was found by the CA to be unrebutted. The RTCs assessment of the credibility of her testimony was accorded respect, and the intention of the parties was given the primary consideration in determining the true nature of the contract.

 Contrary to the finding of the RTC though, the CA annulled the Deed

of Extra-Judicial Partition due to the incapacity of one of the parties to give his consent to the contract. It held that before Conrado could validly bind his co-heirs to the Deed of Extra-Judicial Partition, it was necessary that he be clothed with the proper authority. The CA ruled that a special power of attorney was required under Article 1878 (5) and (15) of the Civil

Code. Without a special power of attorney, it was held that Conrado lacked the legal capactiy to give the consent of his co-heirs, thus, rendering the Deed of Extra-Judicial Partition voidable under Article 1390 (1) of the Civil Code.

 As a consequence, the CA ordered the remand of the case to the RTC for the proper partition of the estate, with the option that the parties may still voluntarily effect the partition by executing another agreement or by adopting the assailed Deed of Partition with the RTCs approval in either case. Otherwise, the RTC may proceed with the compulsory partition of the estate in accordance with the Rules.

 With regard to the claim for damages, the CA agreed with the RTC

and dismissed the claim for actual and compensatory damages for lack of factual and legal basis.

 Both parties filed their respective Motions for Reconsideration, which

were denied by the CA for lack of merit in a Resolution dated October 14, 2004. In their Motion for Reconsideration, the Heirs of Policronio argued that the RTC violated the best evidence rule in giving credence to the testimony of Amparo Castillo with regard to the simulation of the Deed of Sale, and that prescription had set in precluding any question on the validity of the contract. 

The CA held that the oral testimony was admissible under Rule 130, Section 9 (b) and (c), which provides that evidence aliunde may be allowed to explain the terms of the written agreement if the same failed to express the true intent and agreement of the parties thereto, or when the validity of the written agreement was put in issue. Furthermore, the CA found that the Heirs of Policronio waived their right to object to evidence aliunde having failed to do so during trial and for raising such only for the first time on appeal. With regard to prescription, the CA ruled that the action or defense for the declaration of the inexistence of a contract did not prescribe under Article 1410 of the Civil Code.

 On the other hand, the Heirs of Alfonso argued that the Deed of Extra-

Judicial Partition should not have been annulled, and instead the preterited

heirs should be given their share. The CA reiterated that Conrados lack of capacity to give his co-heirs consent to the extra-judicial settlement rendered the same voidable.

 Hence, the present Petitions for Review on Certiorari.

 The Issues 

The issues presented for resolution by the Heirs of Policronio in G.R. No. 165748 are as follows:

I. 

Whether the Court of Appeals is correct in ruling that the Deed of Absolute Sale of 25 October 1969 is void for being absolutely fictitious and in relation therewith, may parol evidence be entertained to thwart its binding effect after the parties have both died? Assuming that indeed the said document is simulated, whether or not the parties thereto including their successors in interest are estopped to question its validity, they being bound by Articles 1412 and 1421 of the Civil Code? 

II. Whether prescription applies to bar any question respecting the validity of the Deed of Absolute Sale dated 25 October 1969? Whether prescription applies to bar any collateral attack on the validity of the deed of absolute sale executed 21 years earlier?

 III.

 Whether the Court of Appeals correctly ruled in nullifying the Deed of Extrajudicial Partition because Conrado Ureta signed the same without the written authority from his siblings in contravention of Article 1878 in relation to Article 1390 of the Civil Code and in relation therewith, whether the defense of ratification and/or preterition raised for the first time on appeal may be entertained?

The issues presented for resolution by the Heirs of Alfonso in G.R. No. 165930 are as follows: 

I. 

Whether or not grave error was committed by the Trial Court and Court of Appeals in declaring the Deed of Sale of subject properties as absolutely simulated and null and void thru parol evidence based on their factual findings as to its fictitious nature, and there being waiver of any objection based on violation of the parol evidence rule. 

II. Whether or not the Court of Appeals was correct in holding that Conrado Uretas lack of capacity to give his co-heirs consent to the Extra-Judicial Partition rendered the same voidable. 

III. Granting arguendo that Conrado Ureta was not authorized to represent his co-heirs and there was no ratification, whether or not the Court of Appeals was correct in ordering the remand of the case to the Regional Trial Court for partition of the estate of Alfonso Ureta.

 IV.

 Since the sale in favor of Policronio Ureta Sr. was null and void ab initio, the properties covered therein formed part of the estate of the late Alfonso Ureta and was correctly included in the Deed of Extrajudicial Partition even if no prior action for nullification of the sale was filed by the heirs of Liberato Ureta. 

V. 

Whether or not the heirs of Policronio Ureta Sr. can claim that estoppel based on Article 1412 of the Civil Code as well as the issue of prescription can still be raised on appeal.These various contentions revolve around two major issues, to wit: (1)

whether the Deed of Sale is valid, and (2) whether the Deed of Extra-Judicial Partition is valid. Thus, the assigned errors shall be discussed jointly and in seriatim. The Ruling of the Court Validity of the Deed of Sale 

Two veritable legal presumptions bear on the validity of the Deed of Sale: (1) that there was sufficient consideration for the contract; and (2) that it was the result of a fair and regular private transaction. If shown to hold, these presumptions infer prima facie the transactions validity, except that it must yield to the evidence adduced.[10]

 As will be discussed below, the evidence overcomes these two

presumptions. 

Absolute Simulation First, the Deed of Sale was not the result of a fair and regular private transaction because it was absolutely simulated. 

The Heirs of Policronio argued that the land had been validly sold to Policronio as the Deed of Sale contained all the essential elements of a valid contract of sale, by virtue of which, the subject properties were transferred in his name as evidenced by the tax declaration. There being no invalidation prior to the execution of the Deed of Extra-Judicial Partition, the probity and integrity of the Deed of Sale should remain undiminished and accorded respect as it was a duly notarized public instrument. The Heirs of Policronio posited that his loyal services to his father and his being the eldest among Alfonsos children, might have prompted the old man to sell the subject lands to him at a very low price as an advance inheritance. They explained that Policronios failure to take possession of the subject lands and to claim their produce manifests a Filipino family practice wherein

a child would take possession and enjoy the fruits of the land sold by a parent only after the latters death. Policronio simply treated the lands the same way his father Alfonso treated them - where his children enjoyed usufructuary rights over the properties, as opposed to appropriating them exclusively to himself. They contended that Policronios failure to take actual possession of the lands did not prove that he was not the owner as he was merely exercising his right to dispose of them. They argue that it was an error on the part of the CA to conclude that ownership by Policronio was not established by his failure to possess the properties sold. Instead, emphasis should be made on the fact that the tax declarations, being indicia of possession, were in Policronios name. 

They further argued that the Heirs of Alfonso failed to appreciate that the Deed of Sale was clear enough to convey the subject parcels of land. Citing jurisprudence, they contend that there is a presumption that an instrument sets out the true agreement of the parties thereto and that it was executed for valuable consideration,[11] and where there is no doubt as to the intention of the parties to a contract, the literal meaning of the stipulation shall control.[12]Nowhere in the Deed of Sale is it indicated that the transfer was only for taxation purposes. On the contrary, the document clearly indicates that the lands were sold. Therefore, they averred that the literal meaning of the stipulation should control. The Court disagrees.

 The Court finds no cogent reason to deviate from the finding of the

CA that the Deed of Sale is null and void for being absolutely simulated. The Civil Code provides:

 Art. 1345. Simulation of a contract may be absolute or relative. The former takes place when the parties do not intend to be bound at all; the latter, when the parties conceal their true agreement. Art. 1346. An absolutely simulated or fictitious contract is void. A relative simulation, when it does not prejudice a third person and is not intended for any purpose contrary to law, morals, good customs, public order or public policy binds the parties to their real agreement. 

 

Valerio v. Refresca[13] is instructive on the matter of simulation of contracts:

 In absolute simulation, there is a colorable contract

but it has no substance as the parties have no intention to be bound by it. The main characteristic of an absolute simulation is that the apparent contract is not really desired or intended to produce legal effect or in any way alter the juridical situation of the parties. As a result, an absolutely simulated or fictitious contract is void, and the parties may recover from each other what they may have given under the contract. However, if the parties state a false cause in the contract to conceal their real agreement, the contract is relatively simulated and the parties are still bound by their real agreement. Hence, where the essential requisites of a contract are present and the simulation refers only to the content or terms of the contract, the agreement is absolutely binding and enforceable between the parties and their successors in interest.

 Lacking, therefore, in an absolutely simulated contract is consent

which is essential to a valid and enforceable contract.[14] Thus, where a person, in order to place his property beyond the reach of his creditors, simulates a transfer of it to another, he does not really intend to divest himself of his title and control of the property; hence, the deed of transfer is but a sham.[15] Similarly, in this case, Alfonso simulated a transfer to Policronio purely for taxation purposes, without intending to transfer ownership over the subject lands.

 The primary consideration in determining the true nature of a contract

is the intention of the parties. If the words of a contract appear to contravene the evident intention of the parties, the latter shall prevail. Such intention is determined not only from the express terms of their agreement, but also from the contemporaneous and subsequent acts of the parties.[16] The true intention of the parties in this case was sufficiently proven by the Heirs of Alfonso.

 The Heirs of Alfonso established by a preponderance of

evidence[17] that the Deed of Sale was one of the four (4) absolutely simulated Deeds of Sale which involved no actual monetary consideration,

executed by Alfonso in favor of his children, Policronio, Liberato, and Prudencia, and his second wife, Valeriana, for taxation purposes. Amparo Castillo, the daughter of Liberato, testified, to wit: 

Q: Now sometime in the year 1969 can you recall if your grandfather and his children [met] in your house? A: Yes sir, that was sometime in October 1969 when they [met] in our house, my grandfather, my late uncle Policronio Ureta, my late uncle Liberato Ureta, my uncle Francisco Ureta, and then my auntie Prudencia Ureta they talk[ed] about, that idea came from my uncle Francisco Ureta to [sell] some parcels of land to his children to lessen the inheritance tax whatever happened to my grandfather, actually no money involved in this sale. Q: Now you said there was that agreement, verbal agreement. [W]here were you when this Alfonso Ureta and his children gather[ed] in your house? A: I was near them in fact I heard everything they were talking [about] 

x x x Q: Were there documents of sale executed by Alfonso Ureta in furtherance of their verbal agreement? A: Yes sir. Q: To whom in particular did your grandfather Alfonso Ureta execute this deed of sale without money consideration according to you? A: To my uncle Policronio Ureta and to Prudencia Ureta Panadero. Q: And who else? A: To Valeriana dela Cruz. Q: How about your father? A: He has.[18]

 The other Deeds of Sale executed by Alfonso in favor of his children

Prudencia and Liberato, and second wife Valeriana, all bearing the same date of execution, were duly presented in evidence by the Heirs of Alfonso, and were uncontested by the Heirs of Policronio. The lands which were the subject of these Deeds of Sale were in fact included in the Deed of Extra-Judicial Partition executed by all the heirs of Alfonso, where it was expressly stipulated:

 That the above-named Amparo U. Castillo,

Prudencia U. Paradero, Conrado B. Ureta and Merlinda U. Rivera do hereby recognize and acknowledge as a fact that the properties presently declared in their respective names or in the names of their respective parents and are included in the foregoing instrument are actually the properties of the deceased Alfonso Ureta and were transferred only for the purpose of effective administration and development and convenience in the payment of taxes and, therefore, all instruments conveying or affecting the transfer of said properties are null and void from the beginning.[19]

 As found by the CA, Alfonso continued to exercise all the rights of an

owner even after the execution of the Deeds of Sale. It was undisputed that Alfonso remained in possession of the subject lands and enjoyed their produce until his death. No credence can be given to the contention of the Heirs of Policrionio that their father did not take possession of the subject lands or enjoyed the fruits thereof in deference to a Filipino family practice. Had this been true, Policronio should have taken possession of the subject lands after his father died. On the contrary, it was admitted that neither Policronio nor his heirs ever took possession of the subject lands from the time they were sold to him, and even after the death of both Alfonso and Policronio.

 It was also admitted by the Heirs of Policronio that the tenants of the

subject lands never turned over the produce of the properties to Policronio or his heirs but only to Alfonso and the administrators of his estate. Neither was there a demand for their delivery to Policronio or his heirs. Neither did Policronio ever pay real estate taxes on the properties, the only payment on record being those made by his heirs in 1996 and 1997 ten years after his

death. In sum, Policronio never exercised any rights pertaining to an owner over the subject lands. 

The most protuberant index of simulation of contract is the complete absence of an attempt in any manner on the part of the ostensible buyer to assert rights of ownership over the subject properties. Policronios failure to take exclusive possession of the subject properties or, in the alternative, to collect rentals, is contrary to the principle of ownership. Such failure is a clear badge of simulation that renders the whole transaction void. [20]

 It is further telling that Policronio never disclosed the existence of the

Deed of Sale to his children. This, coupled with Policronios failure to exercise any rights pertaining to an owner of the subject lands, leads to the conclusion that he was aware that the transfer was only made for taxation purposes and never intended to bind the parties thereto. As the above factual circumstances remain unrebutted by the Heirs of Policronio, the factual findings of the RTC, which were affirmed by the CA, remain binding and conclusive upon this Court.[21]

 It is clear that the parties did not intend to be bound at all, and as such,

the Deed of Sale produced no legal effects and did not alter the juridical situation of the parties. The Deed of Sale is, therefore, void for being absolutely simulated pursuant to Article 1409 (2) of the Civil Code which provides:

 Art. 1409. The following contracts are inexistent and void from the beginning: 

x x x (2) Those which are absolutely simulated or fictitious; 

x x x 

For guidance, the following are the most fundamental characteristics of void or inexistent contracts:

 

1) As a general rule, they produce no legal effects whatsoever in accordance with the principle "quod nullum est nullum producit effectum."

 2) They are not susceptible of ratification. 3) The right to set up the defense of inexistence or absolute

nullity cannot be waived or renounced. 4) The action or defense for the declaration of their inexistence

or absolute nullity is imprescriptible. 5) The inexistence or absolute nullity of a contract cannot be

invoked by a person whose interests are not directly affected.[22]

 Since the Deed of Sale is void, the subject properties were properly

included in the Deed of Extra-Judicial Partition of the estate of Alfonso. Absence and Inadequacy of Consideration 

The second presumption is rebutted by the lack of consideration for the Deed of Sale.

 In their Answer,[23] the Heirs of Alfonso initially argued that the Deed

of Sale was void for lack of consideration, and even granting that there was consideration, such was inadequate. The Heirs of Policronio counter that the defenses of absence or inadequacy of consideration are not grounds to render a contract void.

 The Heirs of Policronio contended that under Article 1470 of the Civil

Code, gross inadequacy of the price does not affect a contract of sale, except as it may indicate a defect in the consent, or that the parties really intended a donation or some other act or contract. Citing jurisprudence, they argued that inadequacy of monetary consideration does not render a conveyance inexistent as liberality may be sufficient cause for a valid contract, whereas fraud or bad faith may render it either rescissible or voidable, although valid until annulled.[24] Thus, they argued that if the contract suffers from inadequate consideration, it remains valid until annulled, and the remedy of

rescission calls for judicial intervention, which remedy the Heirs of Alfonso failed to take.

 It is further argued that even granting that the sale of the subject lands

for a consideration of ₱2,000.00 was inadequate, absent any evidence of the fair market value of the land at the time of its sale, it cannot be concluded that the price at which it was sold was inadequate.[25] As there is nothing in the records to show that the Heirs of Alfonso supplied the true value of the land in 1969, the amount of ₱2,000.00 must thus stand as its saleable value. On this issue, the Court finds for the Heirs of Alfonso. 

For lack of consideration, the Deed of Sale is once again found to be void. It states that Policronio paid, and Alfonso received, the ₱2,000.00 purchase price on the date of the signing of the contract:

 That I, ALFONSO F. URETA, x x x for and in

consideration of the sum of TWO THOUSAND (₱2,000.00) PESOS, Philippine Currency, to me in hand paid by POLICRONIO M. URETA, x x x, do hereby CEDE, TRANSFER, and CONVEY, by way of absolute sale, x x x six (6) parcels of land x x x.[26] [Emphasis ours]

  Although, on its face, the Deed of Sale appears to be supported by valuable consideration, the RTC found that there was no money involved in the sale.[27]This finding was affirmed by the CA in ruling that the sale is void for being absolutely simulated. Considering that there is no cogent reason to deviate from such factual findings, they are binding on this Court. It is well-settled in a long line of cases that where a deed of sale states that the purchase price has been paid but in fact has never been paid, the deed of sale is null and void for lack of consideration.[28] Thus, although the contract states that the purchase price of ₱2,000.00 was paid by Policronio to Alfonso for the subject properties, it has been proven that such was never in fact paid as there was no money involved. It must, therefore, follow that the Deed of Sale is void for lack of consideration.

 Given that the Deed of Sale is void, it is unnecessary to discuss the

issue on the inadequacy of consideration.

 Parol Evidence and Hearsay 

The Heirs of Policronio aver that the rules on parol evidence and hearsay were violated by the CA in ruling that the Deed of Sale was void.

 They argued that based on the parol evidence rule, the Heirs of

Alfonso and, specifically, Amparo Castillo, were not in a position to prove the terms outside of the contract because they were not parties nor successors-in-interest in the Deed of Sale in question. Thus, it is argued that the testimony of Amparo Castillo violates the parol evidence rule.

 Stemming from the presumption that the Heirs of Alfonso were not

parties to the contract, it is also argued that the parol evidence rule may not be properly invoked by either party in the litigation against the other, where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby.[29]

 Their arguments are untenable. The objection against the admission of any evidence must be made at

the proper time, as soon as the grounds therefor become reasonably apparent, and if not so made, it will be understood to have been waived. In the case of testimonial evidence, the objection must be made when the objectionable question is asked or after the answer is given if the objectionable features become apparent only by reason of such answer.[30] In this case, the Heirs of Policronio failed to timely object to the testimony of Amparo Castillo and they are, thus, deemed to have waived the benefit of the parol evidence rule.

 Granting that the Heirs of Policronio timely objected to the testimony

of Amparo Castillo, their argument would still fail. Section 9 of Rule 130 of the Rules of Court provides:Section 9. Evidence of written agreements. When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and

there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

However, a party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading:

(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;

(c) The validity of the written agreement; or

(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.

The term "agreement" includes wills.

[Emphasis ours]

 Paragraphs (b) and (c) are applicable in the case at bench. The failure of the Deed of Sale to express the true intent and

agreement of the parties was clearly put in issue in the Answer [31] of the Heirs of Alfonso to the Complaint. It was alleged that the Deed of Sale was only made to lessen the payment of estate and inheritance taxes and not meant to transfer ownership. The exception in paragraph (b) is allowed to enable the court to ascertain the true intent of the parties, and once the intent is clear, it shall prevail over what the document appears to be on its face.[32] As the true intent of the parties was duly proven in the present case, it now prevails over what appears on the Deed of Sale.

 The validity of the Deed of Sale was also put in issue in the Answer,

and was precisely one of the issues submitted to the RTC for resolution.[33] The operation of the parol evidence rule requires the existence of a valid written agreement. It is, thus, not applicable in a proceeding where the validity of such agreement is the fact in dispute, such as when a contract may be void for lack of consideration.[34] Considering that the Deed of Sale has been shown to be void for being absolutely simulated and for lack of

consideration, the Heirs of Alfonso are not precluded from presenting evidence to modify, explain or add to the terms of the written agreement.

 The Heirs of Policronio must be in a state of confusion in arguing that

the Heirs of Alfonso may not question the Deed of Sale for not being parties or successors-in-interest therein on the basis that the parol evidence rule may not be properly invoked in a proceeding or litigation where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. If their argument was to be accepted, then the Heirs of Policronio would themselves be precluded from invoking the parol evidence rule to exclude the evidence of the Heirs of Alfonso.

 Indeed, the applicability of the parol evidence rule requires that the

case be between parties and their successors-in-interest.[35] In this case, both the Heirs of Alfonso and the Heirs of Policronio are successors-in-interest of the parties to the Deed of Sale as they claim rights under Alfonso and Policronio, respectively. The parol evidence rule excluding evidence aliunde, however, still cannot apply because the present case falls under two exceptions to the rule, as discussed above. 

With respect to hearsay, the Heirs of Policronio contended that the rule on hearsay was violated when the testimony of Amparo Castillo was given weight in proving that the subject lands were only sold for taxation purposes as she was a person alien to the contract. Even granting that they did not object to her testimony during trial, they argued that it should not have been appreciated by the CA because it had no probative value whatsoever.[36]

 The Court disagrees. It has indeed been held that hearsay evidence whether objected to or

not cannot be given credence for having no probative value.[37] This principle, however, has been relaxed in cases where, in addition to the failure to object to the admissibility of the subject evidence, there were other pieces of evidence presented or there were other circumstances prevailing to support the fact in issue. In Top-Weld Manufacturing, Inc. v. ECED S.A.,[38] this Court held:

 Hearsay evidence alone may be insufficient to

establish a fact in an injunction suit (Parker v. Furlong, 62 P. 490) but, when no objection is made thereto, it is, like any other evidence, to be considered and given the importance it deserves. (Smith v. Delaware & Atlantic Telegraph & Telephone Co., 51 A 464). Although we should warn of the undesirability of issuing judgments solely on the basis of the affidavits submitted, where as here, said affidavits are overwhelming, uncontroverted by competent evidence and not inherently improbable, we are constrained to uphold the allegations of the respondents regarding the multifarious violations of the contracts made by the petitioner.

 In the case at bench, there were other prevailing circumstances which

corroborate the testimony of Amparo Castillo. First, the other Deeds of Sale which were executed in favor of Liberato, Prudencia, and Valeriana on the same day as that of Policronios were all presented in evidence. Second, all the properties subject therein were included in the Deed of Extra-Judicial Partition of the estate of Alfonso. Third, Policronio, during his lifetime, never exercised acts of ownership over the subject properties (as he never demanded or took possession of them, never demanded or received the produce thereof, and never paid real estate taxes thereon). Fourth, Policronio never informed his children of the sale.

 As the Heirs of Policronio failed to controvert the evidence presented,

and to timely object to the testimony of Amparo Castillo, both the RTC and the CA correctly accorded probative weight to her testimony.

 Prior Action Unnecessary 

The Heirs of Policronio averred that the Heirs of Alfonso should have filed an action to declare the sale void prior to executing the Deed of Extra-Judicial Partition. They argued that the sale should enjoy the presumption of regularity, and until overturned by a court, the Heirs of Alfonso had no authority to include the land in the inventory of properties of Alfonsos estate. By doing so, they arrogated upon themselves the power of invalidating the Deed of Sale which is exclusively vested in a court of law which, in turn, can rule only upon the observance of due process. Thus, they

contended that prescription, laches, or estoppel have set in to militate against assailing the validity of the sale.

 The Heirs of Policronio are mistaken. A simulated contract of sale is without any cause or consideration, and

is, therefore, null and void; in such case, no independent action to rescind or annul the contract is necessary, and it may be treated as non-existent for all purposes.[39] A void or inexistent contract is one which has no force and effect from the beginning, as if it has never been entered into, and which cannot be validated either by time or ratification. A void contract produces no effect whatsoever either against or in favor of anyone; it does not create, modify or extinguish the juridical relation to which it refers.[40] Therefore, it was not necessary for the Heirs of Alfonso to first file an action to declare the nullity of the Deed of Sale prior to executing the Deed of Extra-Judicial Partition.Personality to Question Sale 

The Heirs of Policronio contended that the Heirs of Alfonso are not parties, heirs, or successors-in-interest under the contemplation of law to clothe them with the personality to question the Deed of Sale. They argued that under Article 1311 of the Civil Code, contracts take effect only between the parties, their assigns and heirs. Thus, the genuine character of a contract which personally binds the parties cannot be put in issue by a person who is not a party thereto. They posited that the Heirs of Alfonso were not parties to the contract; neither did they appear to be beneficiaries by way of assignment or inheritance. Unlike themselves who are direct heirs of Policronio, the Heirs of Alfonso are not Alfonsos direct heirs. For the Heirs of Alfonso to qualify as parties, under Article 1311 of the Civil Code, they must first prove that they are either heirs or assignees. Being neither, they have no legal standing to question the Deed of Sale.

 They further argued that the sale cannot be assailed for being barred

under Article 1421 of the Civil Code which provides that the defense of illegality of a contract is not available to third persons whose interests are not directly affected.

 Again, the Court disagrees. 

Article 1311 and Article 1421 of the Civil Code provide: Art. 1311. Contracts take effect only between the parties, their assigns and heirs, x x x Art. 1421. The defense of illegality of contracts is not available to third persons whose interests are not directly affected. The right to set up the nullity of a void or non-existent contract is not

limited to the parties, as in the case of annullable or voidable contracts; it is extended to third persons who are directly affected by the contract. Thus, where a contract is absolutely simulated, even third persons who may be prejudiced thereby may set up its inexistence.[41] The Heirs of Alfonso are the children of Alfonso, with his deceased children represented by their children (Alfonsos grandchildren). The Heirs of Alfonso are clearly his heirs and successors-in-interest and, as such, their interests are directly affected, thereby giving them the right to question the legality of the Deed of Sale. Inapplicability of Article 842 

The Heirs of Policronio further argued that even assuming that the Heirs of Alfonso have an interest in the Deed of Sale, they would still be precluded from questioning its validity. They posited that the Heirs of Alfonso must first prove that the sale of Alfonsos properties to Policronio substantially diminished their successional rights or that their legitimes would be unduly prejudiced, considering that under Article 842 of the Civil Code, one who has compulsory heirs may dispose of his estate provided that he does not contravene the provisions of the Civil Code with regard to the legitime of said heirs. Having failed to do so, they argued that the Heirs of Alfonso should be precluded from questioning the validity of the Deed of Sale.

 Still, the Court disagrees.

 Article 842 of the Civil Code provides: Art. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.

 One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. This article refers to the principle of freedom of disposition by will.

What is involved in the case at bench is not a disposition by will but by Deed of Sale. Hence, the Heirs of Alfonso need not first prove that the disposition substantially diminished their successional rights or unduly prejudiced their legitimes. Inapplicability of Article 1412 

The Heirs of Policronio contended that even assuming that the contract was simulated, the Heirs of Alfonso would still be barred from recovering the properties by reason of Article 1412 of the Civil Code, which provides that if the act in which the unlawful or forbidden cause does not constitute a criminal offense, and the fault is both on the contracting parties, neither may recover what he has given by virtue of the contract or demand the performance of the others undertaking. As the Heirs of Alfonso alleged that the purpose of the sale was to avoid the payment of inheritance taxes, they cannot take from the Heirs of Policronio what had been given to their father.

 On this point, the Court again disagrees. Article 1412 of the Civil Code is as follows: Art. 1412. If the act in which the unlawful or forbidden cause consists does not constitute a criminal offense, the following rules shall be observed: (1)   When the fault is on the part of both contracting

parties, neither may recover what he has given by virtue of the contract, or demand the performance of the others undertaking; 

(2)  When only one of the contracting parties is at fault, he cannot recover what he has given by reason of the contract, or ask for the fulfillment of what has been promised him. The other, who is not at fault, may

demand the return of what he has given without any obligation to comply with his promise.

 Article 1412 is not applicable to fictitious or simulated contracts,

because they refer to contracts with an illegal cause or subject-matter.[42] This article presupposes the existence of a cause, it cannot refer to fictitious or simulated contracts which are in reality non-existent.[43] As it has been determined that the Deed of Sale is a simulated contract, the provision cannot apply to it.

 Granting that the Deed of Sale was not simulated, the provision would

still not apply. Since the subject properties were included as properties of Alfonso in the Deed of Extra-Judicial Partition, they are covered by corresponding inheritance and estate taxes. Therefore, tax evasion, if at all present, would not arise, and Article 1412 would again be inapplicable. Prescription 

From the position that the Deed of Sale is valid and not void, the Heirs of Policronio argued that any question regarding its validity should have been initiated through judicial process within 10 years from its notarization in accordance with Article 1144 of the Civil Code. Since 21 years had already elapsed when the Heirs of Alfonso assailed the validity of the Deed of Sale in 1996, prescription had set in. Furthermore, since the Heirs of Alfonso did not seek to nullify the tax declarations of Policronio, they had impliedly acquiesced and given due recognition to the Heirs of Policronio as the rightful inheritors and should, thus, be barred from laying claim on the land.

 The Heirs of Policronio are mistaken. Article 1410 of the Civil Code provides: Art. 1410. The action for the declaration of the inexistence of a contract does not prescribe. This is one of the most fundamental characteristics of void or

inexistent contracts.[44]

 

As the Deed of Sale is a void contract, the action for the declaration of its nullity, even if filed 21 years after its execution, cannot be barred by prescription for it is imprescriptible. Furthermore, the right to set up the defense of inexistence or absolute nullity cannot be waived or renounced.[45] Therefore, the Heirs of Alfonso cannot be precluded from setting up the defense of its inexistence. Validity of the Deed of Extra-Judicial Partition The Court now resolves the issue of the validity of the Deed of Extra-Judicial Partition. Unenforceability The Heirs of Alfonso argued that the CA was mistaken in annulling the Deed of Extra-Judicial Partition due to the incapacity of Conrado to give the consent of his co-heirs for lack of a special power of attorney. They contended that what was involved was not the capacity to give consent in behalf of the co-heirs but the authority to represent them. They argue that the Deed of Extra-Judicial Partition is not a voidable or an annullable contract under Article 1390 of the Civil Code, but rather, it is an unenforceable or, more specifically, an unauthorized contract under Articles 1403 (1) and 1317 of the Civil Code. As such, the Deed of Extra-Judicial Partition should not be annulled but only be rendered unenforceable against the siblings of Conrado. 

They further argued that under Article 1317 of the Civil Code, when the persons represented without authority have ratified the unauthorized acts, the contract becomes enforceable and binding. They contended that the Heirs of Policronio ratified the Deed of Extra-Judicial Partition when Conrado took possession of one of the parcels of land adjudicated to him and his siblings, and when another parcel was used as collateral for a loan entered into by some of the Heirs of Policronio. The Deed of Extra-Judicial Partition having been ratified and its benefits accepted, the same thus became enforceable and binding upon them.

 The Heirs of Alfonso averred that granting arguendo that Conrado

was not authorized to represent his co-heirs and there was no ratification, the CA should not have remanded the case to the RTC for partition of Alfonsos

estate. They argued that the CA should not have applied the Civil Code general provision on contracts, but the special provisions dealing with succession and partition. They contended that contrary to the ruling of the CA, the extra-judicial parition was not an act of strict dominion, as it has been ruled that partition of inherited land is not a conveyance but a confirmation or ratification of title or right to the land.[46] Therefore, the law requiring a special power of attorney should not be applied to partitions. 

On the other hand, the Heirs of Policronio insisted that the CA pronouncement on the invalidity of the Deed of Extra-Judicial Partition should not be disturbed because the subject properties should not have been included in the estate of Alfonso, and because Conrado lacked the written authority to represent his siblings. They argued with the CA in ruling that a special power of attorney was required before Conrado could sign in behalf of his co-heirs.

 The Heirs of Policronio denied that they ratified the Deed of Extra-

Judicial Partition. They claimed that there is nothing on record that establishes that they ratified the partition. Far from doing so, they precisely questioned its execution by filing a complaint. They further argued that under Article 1409 (3) of the Civil Code, ratification cannot be invoked to validate the illegal act of including in the partition those properties which do not belong to the estate as it provides another mode of acquiring ownership not sanctioned by law.

 Furthermore, the Heirs of Policronio contended that the defenses of

unenforceability, ratification, and preterition are being raised for the first time on appeal by the Heirs of Alfonso. For having failed to raise them during the trial, the Heirs of Alfonso should be deemed to have waived their right to do so.

 The Court agrees in part with the Heirs of Alfonso. To begin, although the defenses of unenforceability, ratification and

preterition were raised by the Heirs of Alfonso for the first time on appeal, they are concomitant matters which may be taken up. As long as the questioned items bear relevance and close relation to those specifically raised, the interest of justice would dictate that they, too, must be considered and resolved. The rule that only theories raised in the initial proceedings

may be taken up by a party thereto on appeal should refer to independent, not concomitant matters, to support or oppose the cause of action.[47]

 In the RTC, the Heirs of Policronio alleged that Conrados consent was

vitiated by mistake and undue influence, and that he signed the Deed of Extra-Judicial Partition without the authority or consent of his co-heirs.

 The RTC found that Conrados credibility had faltered, and his claims

were rejected by the RTC as gratuitous assertions. On the basis of such, the RTC ruled that Conrado duly represented his siblings in the Deed of Extra-Judicial Partition.

 On the other hand, the CA annulled the Deed of Extra-Judicial

Partition under Article 1390 (1) of the Civil Code, holding that a special power of attorney was lacking as required under Article 1878 (5) and (15) of the Civil Code. These articles are as follows:

 Art. 1878. Special powers of attorney are necessary in the following cases:

x x x (5) To enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration;

x x x(15) Any other act of strict dominion.

 Art. 1390. The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties: (1) Those where one of the parties is incapable of giving consent to a contract; (2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud. These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification.

 This Court finds that Article 1878 (5) and (15) is inapplicable to the

case at bench. It has been held in several cases[48] that partition among heirs

is not legally deemed a conveyance of real property resulting in change of ownership. It is not a transfer of property from one to the other, but rather, it is a confirmation or ratification of title or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance. It is merely a designation and segregation of that part which belongs to each heir. The Deed of Extra-Judicial Partition cannot, therefore, be considered as an act of strict dominion. Hence, a special power of attorney is not necessary.

 In fact, as between the parties, even an oral partition by the heirs is

valid if no creditors are affected. The requirement of a written memorandum under the statute of frauds does not apply to partitions effected by the heirs where no creditors are involved considering that such transaction is not a conveyance of property resulting in change of ownership but merely a designation and segregation of that part which belongs to each heir.[49]

 Neither is Article 1390 (1) applicable. Article 1390 (1) contemplates

the incapacity of a party to give consent to a contract. What is involved in the case at bench though is not Conrados incapacity to give consent to the contract, but rather his lack of authority to do so. Instead, Articles 1403 (1), 1404, and 1317 of the Civil Code find application to the circumstances prevailing in this case. They are as follows:

 Art. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered into in the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers;

 Art. 1404. Unauthorized contracts are governed by Article 1317 and the principles of agency in Title X of this Book.

 Art. 1317. No one may contract in the name of another without being authorized by the latter, or unless he has by law a right to represent him. A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose

behalf it has been executed, before it is revoked by the other contracting party.  Such was similarly held in the case of Badillo v. Ferrer: 

The Deed of Extrajudicial Partition and Sale is not a voidable or an annullable contract under Article 1390 of the New Civil Code. Article 1390 renders a contract voidable if one of the parties is incapable of giving consent to the contract or if the contracting partys consent is vitiated by mistake, violence, intimidation, undue influence or fraud. x x x

 The deed of extrajudicial parition and sale is an

unenforceable or, more specifically, an unauthorized contract under Articles 1403(1) and 1317 of the New Civil Code.[50]

 Therefore, Conrados failure to obtain authority from his co-heirs to

sign the Deed of Extra-Judicial Partition in their behalf did not result in his incapacity to give consent so as to render the contract voidable, but rather, it rendered the contract valid but unenforceable against Conrados co-heirs for having been entered into without their authority.

 A closer review of the evidence on record, however, will show that the

Deed of Extra-Judicial Partition is not unenforceable but, in fact, valid, binding and enforceable against all the Heirs of Policronio for having given their consent to the contract. Their consent to the Deed of Extra-Judicial Partition has been proven by a preponderance of evidence.

 Regarding his alleged vitiated consent due to mistake and undue

influence to the Deed of Extra-Judicial Partition, Conrado testified, to wit: 

Q: Mr. Ureta you remember having signed a document entitled deed of extra judicial partition consisting of 11 pages and which have previously [been] marked as Exhibit I for the plaintiffs? A: Yes sir. Q: Can you recall where did you sign this document?

 A: The way I remember I signed that in our house. Q: And who requested or required you to sign this document? A: My aunties. Q: Who in particular if you can recall? A: Nay Pruding Panadero. Q: You mean that this document that you signed was brought to your house by your Auntie Pruding Pa[r]adero [who] requested you to sign that document? A: When she first brought that document I did not sign that said document because I [did] no[t] know the contents of that document. Q: How many times did she bring this document to you [until] you finally signed the document? A: Perhaps 3 times. Q: Can you tell the court why you finally signed it? A: Because the way she explained it to me that the land of my grandfather will be partitioned. Q: When you signed this document were your brothers and sisters who are your co-plaintiffs in this case aware of your act to sign this document? A: They do not know. 

x x x Q: After you have signed this document did you inform your brothers and sisters that you have signed this document? A: No I did not. [51]

 x x x

 

Q: Now you read the document when it was allegedly brought to your house by your aunt Pruding Pa[r]adero? A: I did not read it because as I told her I still want to ask the advise of my brothers and sisters. Q: So do I get from you that you have never read the document itself or any part thereof? A: I have read the heading.

 x x x

 Q: And why is it that you did not read all the pages of this document because I understand that you know also how to read in English? A: Because the way Nay Pruding explained to me is that the property of my grandfather will be partitioned that is why I am so happy.

 x x x

 Q: You mean to say that after you signed this deed of extra judicial partition up to the present you never informed them? A: Perhaps they know already that I have signed and they read already the document and they have read the document. Q: My question is different, did you inform them? A: The document sir? I did not tell them. Q: Even until now? A: Until now I did not inform them.[52]

  

This Court finds no cogent reason to reverse the finding of the RTC that Conrados explanations were mere gratuitous assertions not entitled to any probative weight. The RTC found Conrados credibility to have faltered when he testified that perhaps his siblings were already aware of the Deed of Extra-Judicial Partition. The RTC was in the best position to judge the

credibility of the witness testimony. The CA also recognized that Conrados consent was not vitiated by mistake and undue influence as it required a special power of attorney in order to bind his co-heirs and, as such, the CA thereby recognized that his signature was binding to him but not with respect to his co-heirs. Findings of fact of the trial court, particularly when affirmed by the CA, are binding to this Court.[53]

 Furthermore, this Court notes other peculiarities in Conrados

testimony. Despite claims of undue influence, there is no indication that Conrado was forced to sign by his aunt, Prudencia Paradero. In fact, he testified that he was happy to sign because his grandfathers estate would be partitioned. Conrado, thus, clearly understood the document he signed. It is also worth noting that despite the document being brought to him on three separate occasions and indicating his intention to inform his siblings about it, Conrado failed to do so, and still neglected to inform them even after he had signed the partition. All these circumstances negate his claim of vitiated consent. Having duly signed the Deed of Extra-Judicial Partition, Conrado is bound to it. Thus, it is enforceable against him. Although Conrados co-heirs claimed that they did not authorize Conrado to sign the Deed of Extra-Judicial Partition in their behalf, several circumstances militate against their contention. First, the Deed of Extra-Judicial Partition was executed on April 19, 1989, and the Heirs of Policronio claim that they only came to know of its existence onJuly 30, 1995 through an issue of the Aklan Reporter. It is difficult to believe that Conrado did not inform his siblings about the Deed of Extra-Judicial Partition or at least broach its subject with them for more than five years from the time he signed it, especially after indicating in his testimony that he had intended to do so. 

Second, Conrado retained possession of one of the parcels of land adjudicated to him and his co-heirs in the Deed of Extra-Judicial Partition.

 Third, after the execution of the partition on April 19, 1989 and more

than a year before they claimed to have discovered the existence of the Deed of Extra-Judicial Partition on July 30, 1995, some of the Heirs of Policronio, namely, Rita Solano, Macario Ureta, Lilia Tayco, and Venancio Ureta executed on June 1, 1994, a Special Power of Attorney[54] in favor of their

sister Gloria Gonzales, authorizing her to obtain a loan from a bank and to mortgage one of the parcels of land adjudicated to them in the Deed of Extra-Judicial Partition to secure payment of the loan. They were able to obtain the loan using the land as collateral, over which a Real Estate Mortgage [55] was constituted. Both the Special Power of Attorney and the Real Estate Mortgage were presented in evidence in the RTC, and were not controverted or denied by the Heirs of Policronio.

 Fourth, in the letter dated August 15, 1995, sent by the counsel of the

Heirs of Policronio to the Heirs of Alfonso requesting for amicable settlement, there was no mention that Conrados consent to the Deed of Extra-Judicial Partition was vitiated by mistake and undue influence or that they had never authorized Conrado to represent them or sign the document on their behalf. It is questionable for such a pertinent detail to have been omitted. The body of said letter is reproduced hereunder as follows:

 Greetings: Your nephews and nieces, children of your deceased brother Policronio Ureta, has referred to me for appropriate legal action the property they inherited from their father consisting of six (6) parcels of land which is covered by a Deed of Absolute Sale dated October 25, 1969. These properties ha[ve] already been transferred to the name of their deceased father immediately after the sale, machine copy of the said Deed of Sale is hereto attached for your ready reference. Lately, however, there was published an Extra-judicial Partition of the estate of Alfonso Ureta, which to the surprise of my clients included the properties already sold to their father before the death of said Alfonso Ureta. This inclusion of their property is erroneous and illegal because these properties were covered by the Deed of Absolute Sale in favor of their father Policronio Ureta no longer form part of the estate of Alfonso Ureta. Since Policronio Ureta has [sic] died in 1974 yet, these properties have passed by hereditary succession to his children who are now the true and lawful owners of the said properties. My clients are still entitled to a share in the estate of Alfonso Ureta who is also their grandfather as they have

stepped into the shoes of their deceased father Policronio Ureta. But this estate of Alfonso Ureta should already exclude the six (6) parcels of land covered by the Deed of Absolute Sale in favor of Policronio Ureta. 

My clients cannot understand why the properties of their late father [should] be included in the estate of their grandfather and be divided among his brothers and sisters when said properties should only be divided among themselves as children of Policronio Ureta. Since this matter involves very close members of the same family, I have counseled my clients that an earnest effort towards a compromise or amicable settlement be first explored before resort to judicial remedy is pursued. And a compromise or amicable settlement can only be reached if all the parties meet and discuss the problem with an open mind. To this end, I am suggesting a meeting of the parties on September 16, 1995 at 2:00 P.M. at B Place Restaurant at C. Laserna St., Kalibo, Aklan. It would be best if the parties can come or be represented by their duly designated attorney-in-fact together with their lawyers if they so desire so that the problem can be discussed unemotionally and intelligently. I would, however, interpret the failure to come to the said meeting as an indication that the parties are not willing to or interested in amicable settlement of this matter and as a go signal for me to resort to legal and/or judicial remedies to protest the rights of my clients. Thank you very much.[56]

 Based on the foregoing, this Court concludes that the allegation of

Conrados vitiated consent and lack of authority to sign in behalf of his co-heirs was a mere afterthought on the part of the Heirs of Policronio. It appears that the Heirs of Policronio were not only aware of the existence of the Deed of Extra-Judicial Partition prior to June 30, 1995 but had, in fact, given Conrado authority to sign in their behalf. They are now estopped from questioning its legality, and the Deed of Extra-Judicial Partition is valid, binding, and enforceable against them.

 In view of the foregoing, there is no longer a need to discuss the issue

of ratification.

 Preterition 

The Heirs of Alfonso were of the position that the absence of the Heirs of Policronio in the partition or the lack of authority of their representative results, at the very least, in their preterition and not in the invalidity of the entire deed of partition. Assuming there was actual preterition, it did not render the Deed of Extra-Judicial Partition voidable. Citing Article 1104 of the Civil Code, they aver that a partition made with preterition of any of the compulsory heirs shall not be rescinded, but the heirs shall be proportionately obliged to pay the share of the person omitted. Thus, the Deed of Extra-Judicial Partition should not have been annulled by the CA. Instead, it should have ordered the share of the heirs omitted to be given to them.

 The Heirs of Alfonso also argued that all that remains to be adjudged

is the right of the preterited heirs to represent their father, Policronio, and be declared entitled to his share. They contend that remand to the RTC is no longer necessary as the issue is purely legal and can be resolved by the provisions of the Civil Code for there is no dispute that each of Alfonsos heirs received their rightful share. Conrado, who received Policronios share, should then fully account for what he had received to his other co-heirs and be directed to deliver their share in the inheritance.

 These arguments cannot be given credence. Their posited theory on preterition is no longer viable. It has already

been determined that the Heirs of Policronio gave their consent to the Deed of Extra-Judicial Partition and they have not been excluded from it. Nonetheless, even granting that the Heirs of Policronio were denied their lawful participation in the partition, the argument of the Heirs of Alfonso would still fail.

 Preterition under Article 854 of the Civil Code is as follows: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.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

 Preterition has been defined as the total omission of a compulsory heir

from the inheritance. It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case.[57] Preterition is thus a concept of testamentary succession and requires a will. In the case at bench, there is no will involved. Therefore, preterition cannot apply.

 Remand Unnecessary 

The Deed of Extra-Judicial Partition is in itself valid for complying with all the legal requisites, as found by the RTC, to wit:

 A persual of the Deed of Extra-judicial Partition

would reveal that all the heirs and children of Alfonso Ureta were represented therein; that nobody was left out; that all of them received as much as the others as their shares; that it distributed all the properties of Alfonso Ureta except a portion of parcel 29 containing an area of 14,000 square meters, more or less, which was expressly reserved; that Alfonso Ureta, at the time of his death, left no debts; that the heirs of Policronio Ureta, Sr. were represented by Conrado B. Ureta; all the parties signed the document, was witnessed and duly acknowledged before Notary Public Adolfo M. Iligan of Kalibo, Aklan; that the document expressly stipulated that the heirs to whom some of the properties were transferred before for taxation purposes or their children, expressly recognize and acknowledge as a fact that the properties were transferred only for the purpose of effective administration and development convenience in the payment of taxes and, therefore, all instruments conveying or effecting the transfer of said properties are null and void from the beginning (Exhs. 1-4, 7-d).[58]

 Considering that the Deed of Sale has been found void and the Deed

of Extra-Judicial Partition valid, with the consent of all the Heirs of

Policronio duly given, there is no need to remand the case to the court of origin for partition. 

WHEREFORE, the petition in G.R. No. 165748 is DENIED. The petition in G.R. No. 165930 is GRANTED. The assailed April 20, 2004 Decision and October 14, 2004 Resolution of the Court of Appeals in CA-G.R. CV No. 71399, are hereby MODIFIED in this wise:

 (1)       The Deed of Extra-Judicial Partition, dated April 19, 1989, isVALID, and (2)       The order to remand the case to the court of origin is

hereby DELETED. 

SO ORDERED.  

JOSE CATRAL MENDOZAAssociate Justice

WE CONCUR:    

PRESBITERO J. VELASCO, JR.Associate Justice

Chairperson    

DIOSDADO M. PERALTA ROBERTO A. ABADAssociate Justice Associate Justice

    

MARIA LOURDES P. A. SERENOAssociate Justice

 

A T T E S T A T I O N I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.   

PRESBITERO J. VELASCO, JR.Associate Justice

Chairperson  

C E R T I F I C A T I O N 

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.   RENATO C. CORONAChief Justice

* Designated as additional member of the Third Division per Special Order No. 1028 dated June 21, 2011.

[1] Penned by Associate Justice Perlita J. Tria Tirona with Associate Justice B.A. Adefuin-De La Cruz and Associate Justice Arturo D. Brion (now a member of this Court), concurring.

[2] Penned by Associate Justice Perlita J. Tria Tirona with Associate Justice Ruben T. Reyes and Associate Justice Arturo D. Brion (now a member of this Court), concurring.

[3] Rollo (G.R. No. 165748), pp. 75-81.[4] Exhibit G, records, p. 349.[5] Exhibit 5, id. at 526.[6] Exhibit 11, id. at 528.[7] Exhibit 6, id. at 527.[8] Exhibit 7, id. at 529-539.[9] Rollo (G.R. No. 165748), pp. 51-65.[10] Manila Banking Corporation v. Silverio, 504 Phil. 17, 25-26 (2005), citing Suntay v. Court of

Appeals, 321 Phil. 809 (1995) and RULES OF COURT, Rule 131, Sec. 3 (r) and (p).[11] Gatmaitan v. Court of Appeals, G.R. No. 76500, August 2, 1991, 200 SCRA 38.[12] Ascalon v. Court of Appeals, 242 Phil. 265 (1988).[13] G.R. No. 163687, March 28, 2006, 485 SCRA 494, 500-501; citing Loyola v. Court of Appeals,

383 Phil. 171 (2000), and Balite v. Lim, 487 Phil. 281 (2004).

[14] Manila Banking Corporation v. Silverio, supra note 10 at 27, citing Peoples Aircargo and Warehousing Co., Inc. v. Court of Appeals, 357 Phil. 850 (1998).

[15] Tongoy v. Court of Appeals, 208 Phil. 95, 113 (1983); citing Rodriguez v. Rodriguez, 127 Phil. 294, 301-302 (1967).

[16] Lopez v. Lopez, G.R. No. 161925, November 25, 2009, 605 SCRA 358, 367.[17] RULES OF COURT, Rule 133, Sec. 1. Preponderance of evidence, how determined. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstance of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

[18] TSN, April 6, 1998, pp. 9-10.[19] Exhibit 7-d, records, p. 533.[20] Manila Banking Corporation v. Silverio, supra note 10 at 31, citing Suntay v. Court of Appeals,

321 Phil. 809 (1995); Santiago v. Court of Appeals, 343 Phil. 612 (1997); Cruz v. Bancom Finance Corporation, 429 Phil. 225 (2002); and Ramos v. Heirs of Ramos, 431 Phil. 337 (2002).

[21] Samala v. Court of Appeals, 467 Phil. 563, 568 (2004).[22] Tongoy v. Court of Appeals, supra note 15; Manila Banking Corporation v. Silverio, 504 Phil. 17, 33 (2005).

[23] Rollo (G.R. No. 165748), p. 69-70.[24] Morales Development Company, Inc. v. Court of Appeals, 137 Phil. 307 (1969).[25] Acabal v. Acabal, 494 Phil. 528 (2005).[26] Exhibit G, records, p. 349.[27] Rollo (G.R. No. 165748), p. 79; and TSN, April 6, 1998, p. 9.[28] Montecillo v. Reynes, 434 Phil. 456, 469 (2002); citing Ocejo Perez & Co. v. Flores, 40 Phil

921 (1920); Mapalo v. Mapalo, 123 Phil. 979 (1966); Vda. de Catindig v. Roque, 165 Phil. 707 (1976); Rongavilla v. Court of Appeals, 355 Phil. 721 (1998); and Yu Bu Guan v. Ong, 419 Phil. 845 (2001).

[29] Lechugas v. Court of Appeals, 227 Phil. 310 (1986).[30] RULES OF COURT, Rule 132, Sec. 36.[31] Rollo (G.R. No. 165748), pp. 66-74.[32] Premier Insurance v. Intermediate Appellate Court, 225 Phil. 370, 381 (1986); citing Labasan

v. Lacuesta, 175 Phil. 216 (1978).[33] Rollo (G.R No. 165748), p. 77.[34] Herrera, Remedial Law, Vol. V, pp. 208-209, [1999].[35] Lechugas v. Court of Appeals, 227 Phil. 310, 319 (1986).[36] Eugenio v. Court of Appeals, G.R. No. 103737, December 15, 1994, 239 SCRA 207.[37] People v. Parungao, 332 Phil. 917, 924 (1996).

[38] 222 Phil. 424, 437 (1985).[39] Ocejo Perez & Co. v. Flores, 40 Phil. 921 (1920); De Belen v. Collector of Customs, 46 Phil.

241 (1924); Gallion v. Gayares, 53 Phil. 43 (1929); Escutin v. Escutin, 60 Phil. 922 (1934); Gonzales v. Trinidad, 67 Phil. 682 (1939); Portugal v. IAC, 242 Phil. 709 (1988).

[40] Tongoy v. Court of Appeals, supra note 15.[41] Arsenal v. Intermediate Appellate Court, 227 Phil. 36, 46-47 (1986); Tolentiono, Civil Code of

the Philippines, Vol. IV, p. 643, [2002].[42] Sta. Romana v. Imperio, 122 Phil. 1001, 1007 (1965); Tolentino, Civil Code of the Philippines,

Vol. IV, p. 634, (2002).[43] Gonzales v. Trinidad, 67 Phil. 682, 683-684 (1939); Castro v. Escutin, 179 Phil. 277, 284

(1979).[44] Tongoy v. Court of Appeals, supra note 15; Manila Banking Corporation v. Silverio, 504 Phil. 17, 33 (2005).

[45] Id.[46] Barcelona v. Barcelona, 100 Phil 251, 255 (1956).[47] Borbon II v. Servicewide Specialists, Inc., 328 Phil. 150, 160 (1996).

[48] Barcelona v. Barcelona, 100 Phil. 251, 255 (1956); Maestrado v. Court of Appeals, 384 Phil. 418, 432 (2000); Castro v. Miat, 445 Phil. 282 297-298 (2003), citing Pada-Kilario v. Court of Appeals, 379 Phil. 515 (2000).

[49] Maestrado v. Court of Appeals, 384 Phil. 418, 432 (2000).[50] 236 Phil. 438, 447-448 (1987).[51] TSN, October 1, 1997, pp. 4-6.[52] Id. at 8-11.[53] Philippine Rabbit Bus Lines Inc. v. Macalinao, 491 Phil. 249, 255 (2005).[54] Exhibit 2, records, p. 524.[55] Exhibit 3, id. at 525.[56] Exhibit A, id. at 335-336.[57] Neri v. Akutin, 72 Phil. 322, 325 (1914); Maninang v. Court of Appeals, 199 Phil. 640, 647

(1982).[58] Rollo (G.R. No. 165748), p. 80.

Aznar v. Duncan, 17 SCRA 590

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-24365             June 30, 1966

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased. ADOLFO C. AZNAR, executor and appellee, vs.MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant. MARIA HELEN CHRISTENSEN, oppositor and appellee.

J. Salonga and L. M. Abellera for oppositor and appellee.Carlos Dominguez, Jr. for executor-appellee.M. R. Sotelo for appellant.

MAKALINTAL, J.:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its decision of February 28, 1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased. The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484).

In another incident relative to the partition of the deceased's estate, the trial court approved the project submitted by the executor in accordance with the provisions of the will, which said court found to be valid under the law of California. Helen Garcia appealed from the order of approval, and this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisions of the will should be governed by Philippine law, and returned the

case to the lower court with instructions that the partition be made as provided by said law (G.R. No. L-16749).

On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.

The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to the issue in this case:

3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.

4. I further declare that I now have no living ascendants, and no descendants except my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.

x x x           x x x           x x x

7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.

x x x           x x x           x x x

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any

source whatsoever, during her lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in that event, the life interest herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property with the same force and effect as if I had originally so given, devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and bequeath all the rest, remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share alike, the share of any of the three above named who may predecease me, to go in equal parts to the descendants of the deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton die before my own decease, then, and in that event, the share of my estate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de Treviño, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may die before my own decease, share and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil Code, which provides:

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.

On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied." Appellant also suggests that considering the provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads:

ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devices and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitimate.

Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate.

Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Commenting on Article 815, Manresa explains:

Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima, pero que influeye poderosamente en el animo del legislador para decidirle a adoptar una solucion bien diferente de la señalada para el caso de pretericion.

El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un calculo equivocado, ha repartido en favor de extraños o en favor de otros legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al complemento de la porcion que forzosamente la corresponde.

... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)

On the difference between preterition of a compulsory heir and the right to ask for completion of his legitime, Sanchez Roman says:

La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se presume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de sus disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas o menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no seria caso de pretericion, sino de complemento de aquella. El primer supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo original la accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.)

Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. Manresa continues:

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. 1äwphï1.ñët

x x x           x x x           x x x

B. Que la omision sea completa — Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el testador deja algo por cualquier titulo en su testamento, no se halla

propiamente omitido pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son, como veremos completamente distintos (6 Manresa, p. 428.)

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815. (6 Manresa p. 418.)

Again Sanchez Roman:

QUE LA OMISSION SEA TOTAL. — Aunque el articulo 814 no consigna de modo expreso esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria pedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la pretericion, que anula la institucion, sino simplemente los del suplemento necesario para cubrir su legitima. (Sanchez Roman — Tomo VI, Vol. 2.0 p. 1133.)

The question may be posed: In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In other words, should he be recognized or referred to in the will as heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir — indeed her status as such is denied — but is given a legacy of P3,600.00.

While the classical view, pursuant to the Roman law, gave an affirmative answer to the question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 — p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows:

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no fuera el de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era instituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el

ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las otras instituciones de heredero o demas disposiciones contenidas en el testamento.

El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le inspira cual es la de que se complete la legitima del heredero forzoso, a quien por cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de pedir el complemento de la misma sin necesidad de que se anulen las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es por titulo de legado o donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 — p. 937.)

Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.)

The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him.

The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory of preterition. That decision is not here applicable, because it referred to a will where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.

The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime.

One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in

effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this, point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned in fee simple.

Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs against appellees in this instance.

Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur.

R E S O L U T I O N

July 30, 1967

MAKALINTAL, J.:

Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an alleged oversight and asking for the corresponding correction, in the last paragraph before the dispositive part of our decision, which reads as follows:

One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir concerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis ours).

Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and discussion of the rights of the substitute heirs (called American heirs in the brief) appears to be merely for the purpose of refuting the theory advanced by appellees and not for the purpose of having the rights of said heirs defined in so far as, under the terms of the will, they may affect the legitime of oppositor-appellant. This point of course was not and could hardly have been squarely raised as an issue inasmuch as the substitute heirs are not parties in this case. We have nevertheless called attention "to the limitations imposed by law upon this kind of substitution," because in the brief for oppositor-appellant, at page 45, she makes the conclusion "that the Last Will and Testament of Edward E. Christensen are

valid under Philippine Law and must be given full force and effect;" and to give them full force and effect would precisely affect the legitime of oppositor-appellant.

Wherefore, the last paragraph before the dispositive part of our decision quoted above is amended by eliminating the following phrase in the first sentence: "although no reference to it has been made in the brief for oppositor-appellant."

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.Regala and Castro, JJ., took no part.

Nuguid v. Nuguid, 17 SCRA 449

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-23445             June 23, 1966

REMEDIOS NUGUID, petitioner and appellant, vs.FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant.Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

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. 1äwphï1.ñët

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.

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?

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.

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:

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 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. ...

A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments:

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.

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 añade 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 ladesheredacion. 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

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:

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 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.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

Footnotes

1Castañeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc., et al., 5 Phil. 436, 440-441; Limjuco vs. Ganara, 11 Phil. 393, 394-395; Montañano vs. Suesa, 14 Phil. 676, 679; Riera vs. Palmorali, et al., 40 Phil. 105, 116; In re Estate of Johnson, 39 Phil. 156, 174; Palacios vs. Palacios, 58 O.G. No. 2, 220, 221; Teotico vs. Del Val, etc., L-18753, March 26, 1965.

2Section 13, Rule 76 of the Rules of Court.

3Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil. 517, 522.

4Betterments are eliminated in the present Civil Code. II Padilla, Civil Code Annotated, p. 1077.

5VI Manresa, Commentarios al Codigo Civil Español, 7th Edition, (1951), p. 424.

6Words & Phrases, Vol. 3A, Permanent Ed., p. 3.

7Id., p. 4.

8Black's Law Dictionary, 4th ed., p. 117.

9Manresa, id., p. 426.

10Manresa, id., pp. 431-432.

11VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o, p. 1140.

12VI Sanchez Roman, id., p. 1138. This is also cited in the Neri case, 74 Phil. 192-193.

Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8; citing Gil vs. Murciano, L-3362, March 1, 1951, likewise opined that "the right to make a will is statutory, not a natural right, and must be subordinate to law and public policy".

13Sanchez Roman, id., p. 1141.

14Manresa, id., p. 434.

15Petitioner's brief, p. 15.

16Neri, et al. vs. Akutin, et al., supra, 72 Phil., at p. 325.

17Justice J.B.L. Reyes and Judge R.C. Puno, id., p. 106.

18Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107, speaking of the requisites of a valid disinheritance, confirm the theory that disinheritance "must be express (not implied) (Art. 918 ; otherwise there is preterition".

19Sanchez Roman, id., p. 1131.

20Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-752.

21III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172.

22Now one-half, Articles 888 and 889, Civil Code.

23Manresa, id., p. 430.

24Petitioner's brief, p. 13.

25Neri, et al. vs. Akutin, et al., 74 Phil. pp. 191-192.

Arts. 817 and 851, Civil Code of Spain of 1889, referred to in the opinion above, are now Arts. 907 and 918 of the present Civil Code.

Reyes v. Barreto-Datu, 19 SCRA 85

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-17818           January 25, 1967

TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all surnamed Reyes y Barretto,plaintiffs-appellants, vs.LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.

Recto Law Office for plaintiff-appealant.Deogracias T. Reyes and Associates for defendant-appellee.

REYES, J.B.L., J.:

Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No. 1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver to the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his deceasea wife under the terms of the will of the late Bibiano Barretto, consisting of lots in Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.

The decision appealed from sets the antecedents of the case to be as follows:

"This is an action to recover one-half share in the fishpond, located in the barrio of San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land Records of this Province, being the share of plaintiff's wards as minor heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."

It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.

When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew anä nieces® The usufruct oæ the fishponä situateä iî barrio Saî Roque¬ Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerardo® Iî the meantime¬ Maria Gerardo was appointeä administratrix. By virtue thereof, she prepared a project of partition, which was signed by her in her own behalf and as guardian of the minor Milagros Barretto. Said project of partition was approved by the Court of First Instance of Manila on November 22, 1939. The distribution of the estate and the delivery of the shares of the heirs followed forthwith. As a consequence, Salud Barretto took immediate possession of her share and secured the cancellation of the original certificates of title and the issuance of new titles in her own name.

Everything went well since then. Nobody was heard to complain of any irregularity in the distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon her death, it was discovered that she had executed two wills, in the first of which, she instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second, she revoked the same and left all her properties in favor of Milagros Barretto alone. Thus, the later will was allowed and the first rejected. In rejecting the first will presented by Tirso Reyes, as guardian of the children of Salud Barretto, the lower court held that Salud was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was appealed to the Supreme Court, which affirmed the same.1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this action for the recovery of one-half portion, thereof.

This action afforded the defendant an opportunity to set up her right of ownership, not only of the fishpond under litigation, but of all the other properties willed and delivered to Salud Barretto, for being a spurious heir, and not entitled to any share in the estate of Bibiano Barretto, thereby directly attacking the validity, not only of the project of partition, but of the decision of the court based thereon as well.

The defendant contends that the Project of Partition from which Salud acquired the fishpond in question is void ab initio and Salud Barretto did not acquire any valid title thereto, and that the court did not acquire any jurisdiction of the person of the defendant, who was then a minor.'

Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project of partition submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null and void ab initio (not merely voidable) because the distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was not a daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity of the project of partition was decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force) providing as follows: .

A partition in which a person was believed to be an heir, without being so, has been included, shall be null and void.

The court a quo further rejected the contention advanced by plaintiffs that since Bibiano Barretto was free to dispose of one-third (1/3) of his estate under the old Civil Code, his will

was valid in favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such free part. And it concluded that, as defendant Milagros was the only true heir of Bibiano Barretto, she was entitled to recover from Salud, and from the latter's children and successors, all the Properties received by her from Bibiano's estate, in view of the provisions of Article 1456 of the new Civil Code of the Philippines establishing that property acquired by fraud or mistake is held by its acquirer in implied trust for the real owner. Hence, as stated at the beginning of this opinion, the Court a quo not only dismissed the plaintiffs' complaint but ordered them to return the properties received under the project of partition previously mentioned as prayed for in defendant Milagros Barretto's counterclaim. However, it denied defendant's prayer for damages. Hence, this appeal interposed by both plaintiffs and defendant.

Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to the present case by the court below. The reason is obvious: Salud Barretto admittedly had been instituted heir in the late Bibiano Barretto's last will and testament together with defendant Milagros; hence, the partition had between them could not be one such had with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (Article 1081) does not speak of children, or descendants, but of heirs(without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament; for Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the share (½) assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of Bibiano Barretto.

Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime invalidate the institution of Salud as heir, since there was here no preterition, or total ommission of a forced heir. For this reason,Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable, that case involving an instance of preterition or omission of children of the testator's former marriage.

Appellee contends that the partition in question was void as a compromise on the civil status of Salud in violation of Article 1814 of the old Civil Code. This view is erroneous, since a compromise presupposes the settlement of a controversy through mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and the condition of Salud as daughter of the testator Bibiano Barretto, while untrue, was at no time disputed during the settlement of the estate of the testator. There can be no compromise over issues not in dispute. And while a compromise over civil status is prohibited, the law nowhere forbids a settlement by the parties over the share that should correspond to a claimant to the estate.

At any rate, independently of a project of partition which, as its own name implies, is merely a proposal for distribution of the estate, that the court may accept or reject, it is the court alone that makes the distribution of the estate and determines the persons entitled thereto and the parts to which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree of distribution, once final, that vests title in the distributees. If the decree was erroneous or not in conformity with law or the testament, the same should have been corrected by opportune appeal; but once it had become final, its binding effect is like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.

It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the same has become final, the validity or invalidity of the project of partition becomes irrelevant.

It is, however, argued for the appellee that since the court's distribution of the estate of the late Bibiano Barretto was predicated on the project of partition executed by Salud Barretto and the widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto), and since no evidence was taken of the filiation of the heirs, nor were any findings of fact or law made, the decree of distribution can have no greater validity than that of the basic partition, and must stand or fall with it, being in the nature of a judgment by consent, based on a compromise.Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority for the proposition that a judgment by compromise may be set aside on the ground of mistake or fraud, upon petition filed in due time, where petition for "relief was filed before the compromise agreement a proceeding, was consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partition was not only ratified by the court's decree of distribution, but actually consummated, so much so that the titles in the name of the deceased were cancelled, and new certificates issued in favor of the heirs, long before the decree was attacked. Hence, Saminiada vs. Mata does not apply.

Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole basis for the decree of distribution was the project of partition. But, in fact, even without it, the distribution could stand, since it was in conformity with the probated will of Bibiano Barretto, against the provisions whereof no objection had been made. In fact it was the court's duty to do so. Act 190, section 640, in force in 1939, provided: .

SEC. 640. Estate, How Administered. — When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippine Islands. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in these Islands belonging to persons who are inhabitants of another state or country. (Emphasis supplied)

That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of her father in 1939 does not imply that the said court was without jurisdiction to enter the decree of distribution. Passing upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:

If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they would be concluded by the result of the proceedings, not only as to their civil status but as the distribution of the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil. 938, "The proceeding for probate is one in rem (40 Cyc., 1265) and the court acquires jurisdiction over all persons interested, through the publication of the notice prescribed by section 630 C.P.C.; and any order that any be entered therein is binding against all of them." (See also in re Estate of Johnson, 39 Phil. 156.) "A final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees". (Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why, by analogy, these salutary doctrines should not apply to intestate proceedings.

The only instance that we can think of in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action the effect of which, if successful, would be, as in the instant case, for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of.

It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:

... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and that Maria Gerardo was not her judicially appointed guardian. The claim is not true. Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the project of partion that the guardianship proceedings of the minor Lucia Milagros Barretto are pending in the court, does not mean that the guardian had not yet been appointed; it meant that the guardianship proceedings had not yet been terminated, and as a guardianship proceedings begin with the appointment of a guardian, Maria Gerardo must have been already appointed when she signed the project of partition. There is, therefore, no irregularity or defect or error in the project of partition, apparent on the record of the testate proceedings, which shows that Maria Gerardo had no power or authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto, and, consequently, no ground for the contention that the order approving the project of partition is absolutely null and void and may be attacked collaterally in these proceedings.

So that it is now incontestable that appellee Milagros Barretto was not only made a party by publication but actually appeared and participated in the proceedings through her guardian: she, therefore, can not escape the jurisdiction of the Manila Court of First Instance which settled her father's estate.

Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have ignored that the distributee Salud was not her child, the act of said widow in agreeing to the oft-cited partition and distribution was a fraud on appellees rights and entitles her to relief. In the first place, there is no evidence that when the estate of Bibiano Barretto was judicially settled and distributed appellants' predecessor, Salud Lim Boco Barretto to, knew that she was not Bibiano's child: so that if fraud was committed, it was the widow, Maria Gerardo, who was solely responsible, and neither Salud nor her minor children, appellants herein, can be held liable therefor. In the second placegranting that there was such fraud, relief therefrom can only be obtained within 4 years from its discovery, and the record shows that this period had elapsed long ago.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she became of age five years later, in 1944. On that year, her cause of action accrued to contest on the ground of fraud the court decree distributing her father's estate and the four-year period of limitation started to run, to expire in 1948 (Section 43, Act. 190). In fact, conceding that Milagros only became aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still became extinct in 1950. Clearly, therefore, the action was already barred when in August 31, 1956 she filed her counterclaim in this case contesting the decree of distribution of Bibiano Barretto's estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso Reyes had induced her to delay filing action by verbally promising to reconvey the properties received by his deceased wife, Salud. There is no reliable evidence of the alleged promise, which rests exclusively on the oral assertions of Milagros herself and her counsel. In fact, the trial court made no mention of such promise in the decision under appeal. Even more: granting arguendo that the promise was made, the same can not bind the wards, the minor children of Salud, who are the real parties in interest. An abdicative waiver of rights by a guardian, being an act of disposition, and not of administration, can not bind his wards, being null and void as to them unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for the settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or 1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition and decree of distribution is barred by the statute of limitations; and (3) that her claim that plaintiff-appellant guardian is a possessor in bad faith and should account for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the plaintiffs' action for partition of the fishpond described in the complaint should have been given due course.

Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu the properties enumeracted in said decision, and the same is affirmed in so far as it denies any right of said appellee to accounting. Let the records be returned to the court of origin, with instructions to proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of the Register of Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in the complaint No costs.

Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

Footnotes

1Reyes vs. Barretto, G.R. No. L-5831, Jan. 31, 1956.

Escuin v. Escuin, 11 Phil. 332

EN BANC

[G.R. No. 4359. September 24, 1908. ]

EMILIO ESCUIN Y BATAC, Plaintiff-Appellee, v. FRANCISCO ESCUIN, ET AL., Defendants. — JULIA BATAC, Appellant. 

Rosado, Sanz & Opiso for Appellant. 

Kincaid & Hurd for Appellee. 

SYLLABUS

1. ESTATES; APPEAL FROM COMMISSIONERS’ REPORT; PARTITION. — While the appeal interposed against the report and opinion of the commissioners for the appraisal of an estate is still pending in

the lower court, the partition of the hereditary funds can not be ordered, notwithstanding the fact that the same consist of ready money, because the amount of the estate to be divided, in order to

comply with the law and the will of the testator, is not yet determined. Only after payment of all the obligations of the estate can the net amount divisible among the heirs be known. 

2. ID.; ID.; TRIAL IN FIRST INSTANCE COURT; APPEAL. — The claim presented by an appeal interpossed against the opinion of the commissioners for the appraisal of an estate, must be tried in

the same manner as any other action in the Court of First Instance, from whose judgment appeal may be taken to this court by means of the corresponding bill of exceptions. (Secs. 776, 777, Code

of Civil Procedure.) 

3. ID.; RIGHTS OF NATURAL CHILD DULY ACKNOWLEDGED. — If a natural father dies under a duly executed will, his recognized natural son who survives him, being his general heir, is only entitled to

one-third of his estate, which amount constitutes his legal portion, but, if the natural father dies intestate, his natural recognized son is entitled to the entire estate. (Arts. 807, 842, 939, Civil

Code.) 

4. ID.; TESTATE AND INTESTATE SUCCESSION. — A person may die partly testate and partly intestate. 

5. ID.; NATURAL FATHER’S RIGHTS; RIGHTS OF NATURAL CHILD. — The natural father has the right to freely dispose by will of two-thirds of his estate, and in case he exceeds this right by dispossing of

the legal portion pertaining to his natural recognized son, or by overlooking the right of the latter under the will, the designation of heirs or the testamentary provision relative to the legal portion of

the general heir, shall be held void; nevertheless, the other testamentary provisions referring to legacies and gifts shall be considered valid, in so far as they are not illegal and do not impair the

legal portion of the recognized natural son, who is the general heir of the testator.

D E C I S I O N

TORRES, J. :

On the 19th of January, 1899, Emilio Antonio Escuin de los Santos executed a will before a notary public of Sevilla, Spain, stating therein that he was a native of Cavite, the son of Francisco Escuin and Eugenia de los Santos, the latter being deceased; that he was married about six months previously to Maria Teresa Ponce de Leon, and that he had no lawful descendants; the testator, however, stated in clause three of his will, that in case he had a duly registered successor, his child would be his sole and universal heir; but that if, as would probably be the case, there should be no such heir, then in clause four he named his said father Francisco Escuin, and his wife Maria Teresa Ponce de Leon his universal heirs, they to divide the estate in equal shares between them. 

The testator died on the 20th of January, 1899, as certified to by the municipal court of Magdalena, Sevilla, on the 20th of March, 1900. 

Upon the will having been admitted to probate, commissioners were appointed to consider claims against the estate, and, according to a report presented to the Court of First Instance on the 20th of June, 1907, one claim was allowed amounting to 3,696.50 pesetas. 

On the 10th and 12th of July, 1907, the attorney for the widow, Ponce de Leon, and the attorneys who represented the guardian of the minor, Emilio Escuin y Batac appealed to the Court of First Instance from the findings of the aforesaid commissioners. Matters stood thus, and without there appearing any decision of the court as to the appeals, the attorney for the administrator, by a writing dated the 3d of September, following, moved for the approval of the proposed partition of the estate provided for by the court; by the first additional request (otrosi) he asked that the remuneration for the services of the administrator of the estate be fixed, and that he be authorized to draw such amount from the funds of the estate; and by a second additional request he asked that the accounts made up on the 31st of August, previous, be approved. 

It appears in the proposed partition of the 3d of September, 1906, that, according to the opinion of the administrator by whom it was signed and the result of the proceedings, the property left by the testator, in accordance with the accounts passed upon by the court, amounted to P8,268.02

From said sum the following must be

deducted:chanrob1es virtual 1aw library

The credit above alluded to admitted

by the commissioners P1,321.40

10 per cent remuneration due to

the administrator P826.80

All legal expenses paid and

approved P1,105.01

________

P3,253.21

_________

Deducting this amount from the funds

of the estate, there remains a balance

of 5,014.81

That the said credit of P1,321.40, equivalent to 3,696.50 pesetas, allowed by the commissioners, is the only claim presented within the legal term against the estate; that Francisco Escuin, the father of the testator, his wife or widow, Teresa Ponce de Leon, and his natural child, the minor Emilio Escuin y Batac, represented by his mother and guardian Julia Batac, are entitled to the succession; that, by setting aside one-third of the estate in favor of the natural son recognized in accordance with article 842 of the Civil Code, there only remains the question as to how the remaining two-thirds of the inheritance shall be bestowed, taking into account the directions of the testator in his will; that the same does not disclose that he had left any child by his wife; that the latter, as the widow of the testator, besides being a designated heir entitled to one-half of the hereditary funds, is entitled to the usufruct of the portion fixed by the law, and that the funds to be apportioned are composed wholly of cash or ready money. 

On these grounds the partition and adjudication was proceeded with of the sum of P5,014.81 into three shares of P1,671.60 to each one of the parties in interest, that is, the natural son, Emilio Escuin y Batac, in full control as general heir; the widow, Teresa Ponce de Leon, as legatee of one-half of the two-thirds of the funds of free disposition; and the said widow the usufruct of the other half of the aforesaid two-thirds of free disposition, the bare ownership of the last third held in usufruct by the widow being adjudicated to Francisco Escuin, as legatee taking into account the provisions of article 817 of the Civil Code upon making the division. 

On the 12th of September, 1906, the representative of the minor natural child of the testator objected in writing to the partition proposed by the administrator, and for the reasons he set forth asked that the same be disapproved, and that in lieu thereof the entire estate be adjudicated to Emilio Escuin y Batac, the said minor. 

Upon a hearing for the approval of the said proposed partition, the representative of the minor presented as evidence a certified copy of the complaint, the answer, and the final judgment rendered in civil case No. 3210 of the Court of First Instance. 

It appears from the said certified proceedings that the representative of the minor, as plaintiff therein, asked on the 12th of January, 1905, that an allowance be granted to him for subsistence for account of the estate of the late testator, Emilio Escuin de los Santos, and that the same be paid him monthly in advance; that judgment be entered declaring that the minor, Emilio Escuin y Batac, is a natural child of the testator; that the said minor, as the only natural son of the same is his general heir; that it be held that the said testator had died without either lawful ascendants or descendants; that the designation of heirs made under his above-mentioned will be declared null and void; and

that the defendants be sentenced to pay the costs in case they did not conform to the complaint, with any further remedy that the court might consider just and equitable. 

The administrator, Ricardo Summers, in answer to the complaint denied all and every one of the facts alleged in all and every one of its paragraphs. 

On the 30th of September, 1905, the court below found that Emilio Escuin y Batac was the recognized natural child of the late Emilio Escuin de los Santos, had by Julia Batac; that the testator was also the natural son of the defendant Francisco Escuin and Eugenia de los Santos, and was recognized by his father; and that the plaintiff minor, Emilio Escuin y Batac, is one of the heirs of the late testator. 

By an order of the lower court dated the 30th of October, 1906, in view of the accounts and proposal of partition presented by the administrator of the estate, the judge below expressed an opinion that a natural child is only entitled to one-fourth of the hereditary property, the clause in the will being annulled only in so far as the amount to be divided should be reduced, taking into account the share due to the natural son and the right of the father and the widow of the testator, each to one-half of the remainder of the property of the estate. The court approved the account presented, but disapproved the project of partition of the hereditary property that was objected to by one of the parties in interest. Counsel for the minor Emilio Escuin y Batac excepted to the above resolution; a copy of the proceedings was submitted to this court together with the appeal that was interposed. 

On the 10th of July, 1907, the representatives of the administrator, and of the minor, Emilio Escuin y Batac, respectively, stated in writing to the lower court that, in view of the fact that the order of October 30, 1906, did not constitute a final judgment of partition (since the said proposal having been rejected, another partition should be effected by commissioners) the court was requested to appoint commissioners to present a new project of partition in substitution for the one presented by the administrator, the new proposal to be submitted to the court for approval. 

On the 22d of August, the attorney for the administrator filed a written request for the appointment of said commissioners as stated above, and further requested that the remuneration of the petitioner for his services as administrator be fixed by the court, and that he be authorized to draw from the funds of the estate such sum as might thus be assigned to him. 

On the 24th day of the said month of August, the court below issued an order with respect to the foregoing requests and held that, for the reasons stated in the order, the appointment of commissioners for the mere propose of determining what each one of the heirs should receive in accordance with the order of the 30th of October, 1906, was not necessary, inasmuch as the property of the estate consisted of ready money, and the administrator was thereby authorized to distribute the funds among the heirs in the amount stated in the said order. From this decision the representative of the minor Emilio Escuin y Batac took exception, and to this effect presented a bill of errors together with a copy of the proceedings for review on appeal. 

While the appeal s interposed against the report and resolution of the commissioners were still pending in the lower court, the partition of the hereditary funds could not be ordered, notwithstanding the fact that the same consisted of ready money, because the amount of the estate subject to division had not yet been determined in order to comply with the law and the will of the testator. 

Until all the known creditors and the legatees have been paid, it shall be understood that the estate is under administration, says article 1026 of the Civil Code, and in conformity with this legal provision the supreme tribunal has established the doctrine that "only after payment of all the obligations of the estate can the net amount divisible among the heirs be known." (Decision of March 2, 1896.) 

Section 753 of the Code of Civil Procedure confirms the provision of the Civil Code and the legal doctrine mentioned above, inasmuch as it provides that, after payment of the debts, funeral charges, and expenses of administration, and the allowances for the expense of maintenance of the family of the deceased, the court shall assign the residue of the estate to the persons entitled to the same, naming the persons and proportions or parts to which each is entitled, etc. 

As to the aforesaid appeals from the resolution of the commissioners, section 776 of the Code of Civil Procedure provides that: jgc:chanrobles.com.ph

"Upon the lodging of such appeal with the clerk, the disputed claim shall stand for trial in the same

manner as any other action in the Court of First Instance, the creditor being deemed to be the plaintiff, and the estate the defendant, and pleadings as in other actions shall be filed." cralaw virtua1aw library

So that by reason of the claims made by the creditor of the estate of Emilio Escuin de los Santos and by her natural son, duly recognized by his father, an ordinary action should have been brought before the Court of First Instance, from whose judgment appeal may be taken to this court by means of the corresponding bill of exceptions under the provisions of section 777 of the Code of Civil Procedure; and while the ultimate decision in the matter of the said claims against the resolution of the commissioners has not become final, and until all the obligations of the estate have been paid, there can really be no inheritance, nor can it be distributed among the persons interested therein according to the will of the testator, or under the provisions of the law. 

The foregoing refers to the first error assigned in the certified copy of the proceedings and in the brief of the representative of the minor Escuin y Batac, and also to the questions of the form of procedure. 

With respect to the questions which form the basis of this litigation and refer to the second assignment of errors, it should be noted that the late testator did not leave any legitimate descendants or ascendants, but did leave a recognized natural child, the appellant minor, and a widow; that the said minor, Emilio Escuin y Batac, is the general heir of his natural father, the said testator, who recognized him while living (art. 807, Civil Code), and in the present case is entitled to one-third of his estate, which amount constitutes the legal portion of a natural child (art. 842 of the said code); and for the reason that the minor was ignored by his natural father in his will, the designation of heirs made therein was, as a matter of fact annulled by force of law, in so far as the legal portion of the said minor was thereby impaired. Legacies and betterments shall be valid, in so far as they are not illegal, for the reason that a testator can not deprive the heirs of their legal portions, except in the cases expressly indicated by law. (Arts. 763, 813, 814, Civil Code.) 

As has been seen, the testator wished to dispose of his property in his will, designating as heirs his natural father, Francisco Escuin, and his wife, Maria Teresa Ponce de Leon, altogether ignoring his recognized natural child who is his general heir. In view thereof, and for the reason that he exceeded his rights, the said designation of heirs became void in so far as it impaired the right of his general heir and deprived him of his legal portion; the will, however, is valid with respect to the two-thirds of the property which the testator could freely dispose of. (Arts. 763, 764, 806, 813, 842, Civil Code.) 

Notwithstanding the fact that the designation of heirs is annulled and that the law recognizes the title of the minor, Escuin y Batac, to one-third of the property of his natural father, as his lawful and general heir, it is not proper to assert that the late Emilio Escuin de los Santos died intestate in order to establish the conclusion that his said natural recognized child is entitled to succeed to the entire estate under the provisions of article 939 of the Civil Code, inasmuch as in accordance with the law a citizen may die partly testate and partly intestate (art. 764, Civil Code). It is clear and unquestionable that it was the wish of the testator to favor his natural father and his wife with certain portions of his property which, under the law, he had a right to dispose of by will, as he has done, provided the legal portion of his general heir was not thereby impaired, the two former persons being considered as legatees under the will. 

The above-mentioned will is neither null, void, nor illegal in so far as the testator leaves two-thirds of his property to his father and wife; testamentary provisions impairing the legal portion of a general heir shall be reduced in so far as they are illegal or excessive. (Art. 817, Civil Code.) The partition of the property of the said testator shall be proceeded with in accordance with the foregoing legal bases. 

The record does not show that the decision of the commissioners became final or was consented to by the parties in interest, or that this point was alleged and discussed in the first instance; therefore, such circumstance as alleged by the appellee can not now be considered. 

By virtue of the foregoing considerations it is our opinion that the orders of the court below, of October 30, 1906, and August 24, 1907, should be reversed, and upon receipt of a certified copy of this decision the court below shall take action in accordance with the law and the terms herein contained with respect to the claims and appeals from the resolutions of the commissioners pending judicial decision. So ordered. 

Arellano, C.J., Mapa, Carson, Willard and Tracey, JJ., concur.

Balanay v. Martinez, 64 SCRA 452

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., petitioner, vs.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. Sarenas for petitioner.

Jose B. Guyo for private respondents.

 

AQUINO, J.:

Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 1974, 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. 1808). The antecedents of the appeal are as follows:

Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 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, 1973 for the probate of his mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited from her father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par. IV).

Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband's one half share of the conjugal assets. *

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 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 18, 1973 wherein he withdrew his opposition to the probate of 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 wife's 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 18, 1973 "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, 1973 it appointed its branch clerk of court as special administrator of the decedent's estate.

Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 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 estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973.

In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion Montaña claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.

Montaña in his motion assailed the provision of the will which partitioned the conjugal 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 proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued.

Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 15, 1973 manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for being contrary to law and that an intestacy be declared.

The lower court, acting on the motions of Atty. Montaña, assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montaña and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on

May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance.

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground that Atty. Montaña had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaña and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaña's services and informed him that his withdrawal of the petition for the probate of the will was without their consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" to them.

Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of its own independent assessment of its provisions and not because of Atty. Montaña's arguments.

The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693). 1äwphï1.ñët

But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate.

The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the 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 and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).

The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded.

The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code which reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.

A parent who, in the interest of his or her family, to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned be paid in cash. (1056a)

The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband's lifetime would at most be effective only for twenty years from the date of her death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil Code).

Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] 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 adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected.

Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the surviving spouse.

It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs.

Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect."

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 true that she could dispose of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the

husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal estate, such partition has become valid, assuming that the will may be probated.

The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "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." Since the preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil Code).1äwphï1.ñët

In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. .

It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).

As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that the supposed testator has willed that his estate should 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 affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).

To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code).

Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).

As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).

The law has a tender regard for the wishes of the testator as expressed in his will because any disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although no executor or regular administrator has been appointed. The record reveals that it appointed a special administrator. A notice to creditors is not in order if only a special administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting letters of testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court" clearly contemplates the appointment of an executor or regular administrator and not that of a 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 (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).

We also take this occasion to point out that the probate court's 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 decedent's 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 a decedent's estate.

WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case No. 1808 in consonance with this opinion. Costs, against the private respondents.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

 

Footnotes

* The pertinent provisions of the will are as follows:

"II. That I am the absolute owner of the southern half of the following conjugal properties which I acquired during my married life with my husband, Felix Balanay, Sr., namely: (Here follows an enumeration of nine lots). 1äwphï1.ñët

"III. I am the absolute owner of the following paraphernal properties which I inherited from my deceased father, Cecilio Julian, namely: (Here follows a description of two lots).

"IV. It is my desire and I direct that in the interest of my family, my properties shall not be divided among my heirs during the lifetime of my husband, Felix Balanay, Sr. but should be kept intact. The respective legitimes of my husband and my children should be paid in cash out of the proceeds of sale of the produce and rents derived from said properties.

"V. After the death of my husband, Felix Balanay, Sr., my properties shall be divided and distributed in the manner as follows:" (Here follows a partition of the nine conjugal lots and the two paraphernal lots. The testatrix divided among her six children not only her two paraphernal lots, one of which she devised to Emilia Pabaonon and the other lot to Felix Balanay, Jr., but also the nine conjugal lots. She did not restrict the partition to her one-half conjugal share but included her husband's one-half share.).

Solano v. CA, 126 SCRA 122

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-41971 November 29, 1983

ZONIA ANA T. SOLANO, petitioner, vs.THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S. GARCIA, respondents.

Benjamin H. Aquino for petitioner.

Alfredo Kallos for respondents.

 

MELENCIO HERRERA, J.:ñé+.£ªwph!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 GARCIAS; 2) the correct status of ZONIA, and 3) the hereditary share of each of them in view of the probated Will. 2

On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered judgment the dispositive portion of which decrees: têñ.£îhqwâ£

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: têñ.£îhqwâ£

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

The Court of Appeals, as well as the trial Court, acted without 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

The Court of Appeals, as well as the trial Court, acted without 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, 7 that 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. têñ.£îhqwâ£

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, 13 the 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: têñ.£îhqwâ£

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: têñ.£îhqwâ£

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.1äwphï1.ñët

Plana, Relova and Gutierrez, Jr., JJ., concur.

 

 

Separate Opinions

 

TEEHANKEE, J., concurring:

The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code. Such allowance was granted and this terminated the proceeding, although as noted in the Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death. But the issues between the parties as to their status and hereditary shares in view of the probated will naming petitioner as sole heir were expressly delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases (assuming that the probate proceeding could be deemed as having continued notwithstanding its termination with the allowance in vitam of Dr. Solano's will) which were pending before the same judge and the same branch of the trial court could be correctly said to have been. consolidated. Finally, petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly the jurisdiction of the trial and appellate courts to which she had submitted without question her cause.

 

 

Separate Opinions

TEEHANKEE, J., concurring:

The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement of estate of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code. Such allowance was granted and this terminated the proceeding, although as noted in the Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's death. But the issues between the parties as to their status and hereditary shares in view of the probated will naming petitioner as sole heir were expressly delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed by respondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant (and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases (assuming that the probate proceeding could be deemed as having continued notwithstanding its termination with the allowance in vitam of Dr. Solano's will) which were pending before the same judge and the same branch of the trial court could be correctly said to have been. consolidated. Finally, petitioner is now stopped, after getting an adverse verdict, from repudiating belatedly the jurisdiction of the trial and appellate courts to which she had submitted without question her cause.

Footnotestêñ.£îhqwâ£

1 Annex "H" Petition, p. 64, Rollo.

2 T.s.n., May 13, 1970, pp. 27-29, Decision, p. 18.

3 pp. A-C, Petitioner's Brief.

4 Annex "D", Petition, p. 55, Rollo.

5 Article 838, Civil Code; Rule 75, Sec. 1, Rules of Court.

6 Teotico vs. Del Val,. 13 SCRA 406 (1965); Fernandez vs. Dimagiba, 21 SCRA 428 (1967).

7 Article 277, Civil Code.

8 Article 854, Ibid.

9 Art. 563. usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by prescription

10 Neri vs. Akutin, 74 Phil. 185 (1943).

11 Escuin vs. Escuin, 11 Phil. 332 (1908); Eleazar vs. Eleazar, 67 Phil. 497 (1939).

12 Ibid.

13 Art, 895, Civil Code.

14 17 SCRA 449 (1966)

15 74 Phil. 185 (1943).

16 23 SCRA 29 (1968).

Acain v. CA, 155 SCRA 100

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 72706 October 27, 1987

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.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

 

 

Separate Opinions

 

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability to determine how the testator would have distributed his estate if none of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrence in the result that total intestacy ensued.

 

 

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability to determine how the testator would have distributed his estate if none of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On the other hand, if

the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrence in the result that total intestacy ensued.

Footnotes

* Penned by Justice Jose A. R. Melo and concurred in by Justices Milagros A. German and Nathanael P. De Pano, Jr.