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EN BANC

G.R. No. L-47799 June 13, 1941

Administration of the estate of Agripino Neri y Chavez.


ELEUTERIO NERI, ET AL.Petitioners, vs. IGNACIA AKUTIN
AND HER CHILDREN, Respondents.

Ozamiz & Capistrano for petitioners.


Gullas, Leuterio, Tanner & Laput for respondents.

MORAN, J.:

Agripino Neri y Chavez, who died on December 12, 1931, had


by his first marriage six children named Eleuterio, Agripino,
Agapito, Getulia, Rosario and Celerina; and by his second
marriage with Ignacia Akutin, five children named Gracia,
Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter
in the first marriage, died on October 2, 1923, that is, a little
less than eight years before the death of said Agripino Neri y
Chavez, and was survived by seven children named Remedios,
Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In
Agripino Neri's testament, which was admitted to probate on
March 21, 1932, he willed that his children by the first
marriage shall have no longer any participation in his estate,
as they had already received their corresponding shares during
his lifetime. At the hearing for the declaration of heirs, the trial
court found, contrary to what the testator had declared in his
will, that all his children by the first and second marriages
intestate heirs of the deceased without prejudice to one-half of
the improvements introduced in the properties during the
existence of the last conjugal partnership, which should belong
to Ignacia Akutin. The Court of Appeals affirmed the trial
court's decision with the modification that the will was "valid
with respect to the two-thirds part which the testator could
freely dispose of. "This judgment of the Court of Appeals is
now sought to be reviewed in this petition for certiorari. chanroblesvirtualawlibrary chanrobles virtual law library

The decisive question here raised is whether, upon the


foregoing facts, the omission of the children of the first
marriage annuls the institution of the children of the first
marriage as sole heirs of the testator, or whether the will may
be held valid, at least with respect to one-third of the estate
which the testator may dispose of as legacy and to the other
one-third which he may bequeath as betterment, to said
children of the second marriage. chanroblesvirtualawlibrary chanrobles virtual law library

The Court of Appeals invoked the provisions of article 851 of


the Civil Code, which read in part as follows:

Disinheritance made without a statement of the cause, or for a


cause the truth of which, if contradicted, is not proven, ... shall
annul the institution of the heir in so far as it prejudices the
person disinherited; but the legacies, betterments, and other
testamentary dispositions, in so far as they do no encroach
upon the legitime, shall be valid.

The appellate court thus seemed to have rested its judgment


upon the impression that the testator had intended to
disinherit, though ineffectively, the children of the first
marriage. There is nothing in the will that supports this
conclusion. True, the testator expressly denied them any share
in his estate; but the denial was predicated, not upon the
desire to disinherit, but upon the belief, mistaken though it
was, that the children by the first marriage had already
received more than their corresponding shares in his lifetime in
the form of advancement. Such belief conclusively negatives
all inference as to any intention to disinherit, unless his
statement to that effect is prove to be deliberately fictitious, a
fact not found by the Court of Appeals. The situation
contemplated in the above provision is one in which the
purpose to disinherit is clear, but upon a cause not stated or
not proved, a situation which does not obtain in the instant
case.chanroblesvirtualawlibrary chanrobles virtual law library

The Court of Appeals quotes Manresa thus:

En el terreno de los principios, la solucion mas justa del


problema que hemos hecho notar al comentar el articulo, seria
distinguir el caso en que el heredero omitido viviese al
otorgarse el testamento, siendo conocida su existencia por el
testador, de aquel en que, o naciese despues, o se ignorase su
existencia, aplicando en el primer caso la doctrina del articulo
851, y en el segundo la del 814. (6 Manresa, 354-355.)

But it must be observed that this opinion is founded on mere


principles (en el terreno de los principios) and not on the
express provisions of the law. Manresa himself admits that
according to law, "no existe hoy cuestion alguna en esta
materia: la pretericion produce siempre los mismos efectos, ya
se refiera a personas vivas al hacer el testamento o nacidas
despues. Este ultimo grupo solo puede hacer relacion a los
descendientes legitimos, siempre que ademas tengan derecho
a legitima." (6 Manresa, 381.) chanrobles virtual law library

Appellants, on the other hand, maintain that the case is one of


voluntary preterition of four of the children by the first
marriage, and of involuntary preterition of the children by the
deceased Getulia, also of the first marriage, and is thus
governed by the provisions of article 814 of the Civil Code,
which read in part as follows:

The preterition of one or all of the forced heirs in the direct


line, whether living at the time of the execution of the will or
born after the death of the testator, shall void the institution of
heir; but the legacies and betterments shall be valid, in so far
as they are not inofficious.

Preterition consists in the omission in the testator's will of the


forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited.(Cf. 6
Manresa, 346.) In the instant case, while the children of the
first marriage were mentioned in the will, they were not
accorded any share in the heriditary property, without
expressly being disinherited. It is, therefore, a clear case of
preterition as contended by appellants. The omission of the
forced heirs or anyone of them, whether voluntary or
involuntary, is a preterition if the purpose to disinherit is not
expressly made or is not at least manifest. chanroblesvirtualawlibrary chanrobles virtual law library
Except as to "legacies and betterments" which "shall be valid
in so far as they are not inofficious" (art. 814 of the Civil
Code), preterition avoids the institution of heirs and gives rise
to intestate succession. (Art. 814, Civil Code; Decisions of the
Supreme Court of Spain of June 17, 1908 and February 27,
1909.) In the instant case, no such legacies or betterments
have been made by the testator. "Mejoras" or betterments
must be expressly provided, according to articles 825 and 828
of the Civil Code, and where no express provision therefor is
made in the will, the law would presume that the testator had
no intention to that effect. (Cf. 6 Manresa, 479.) In the will
here in question, no express betterment is made in favor of
the children by the second marriage; neither is there any
legacy expressly made in their behalf consisting of the third
available for free disposal. The whole inheritance is accorded
the heirs by the second marriage upon the mistaken belief that
the heirs by the first marriage have already received their
shares. Were it not for this mistake, the testator's intention, as
may be clearly inferred from his will, would have been to
divide his property equally among all his children. chanroblesvirtualawlibrary chanrobles virtual law library

Judgment of the Court of Appeals is reversed and that of the


trial court affirmed, without prejudice to the widow's legal
usufruct, with costs against respondents. chanroblesvirtualawlibrary chanrobles virtual law library

Avanceña, C.J., Diaz, Laurel and Horrilleno, JJ., concur.

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