100 SUPREME COURT REPORTS ANNOTATED

Acain vs. Intermediate Appellate Court

*
No. L-72706. October 27,1987.<a href="#p155scra8960100001"> a>

CONSTANTINO C. ACAIN, petitioner, vs. HON.

INTERMEDIATE APPELLATE COURT (Third
Special Cases Division), VIRGINIA A. FERNANDEZ
and ROSA DIONGSON, respondents.

Civil Law; Succession; Preterition, meaning of; Article 854 of

the Civil Code not applicable to the surviving spouse; Adoption
makes the adopted the legal heir of the adopter.—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

______________

* EN BANC.

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VOL. 155, OCTOBER 27, 1987 101

Acain vs. Intermediate Appellate Court

(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of

Appeals, 114 SCRA [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 was 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.
Same; Same; Same; Preterition annuls the institution of an
heir and creates intestate succession but legacies and devises are
valid and respected insofar as they are not inofficious.—
Preterition annuls the institution of an heir and annulment
throws open to intestate succession the entire inheritance
including “la portion libre (que) no hubiese dispuesto en virtual de
legado, mejora o donation” (Manresa, 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 in so far as the legitimes are concerned.
Same; Same; Same; Same; Institution of petitioner and his
brothers and sisters to the entire inheritance totally abrogates the
will.—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

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102 SUPREME COURT REPORTS ANNOTATED

Acain vs. Intermediate Appellate Court

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.
Same; Same; Probate of a will; Petitioner has no legal
standing to petition for the probate of the will of the deceased,
hence Special Proceeding No. 591-A-CEB must be dismissed.—In
order that a person may be allowed to intervene in a probate
proceeding he must have an interest in 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.
Same; Same; Same; Rule that probate Court’s authority is
limited only to the extrinsic validity of the will, not inflexible and
absolute; Court may pass upon the intrinsic validity of the will
under exceptional circumstances.—Special Proceedings No. 591-
CEB 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 come 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. Leonidas,
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 situa-

103

VOL. 155, OCTOBER 27, 1987 103

Acain vs. Intermediate Appellate Court

tion 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 preterition. 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.
Same; Same; Same; Same; Trial Court could have denied
outright the probate of the will or have passed upon its intrinsic
validity where on its face it appears to be intrinsically void.—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. Leonidas,
supra; Nuguid v. Nuguid, supra). The remedies of certiorari and
prohibition were properly availed of by private respondents.
Certiorari; Remedy of Certiorari cannot be a substitute for
appeal, exception.—As a general rule certiorari cannot be a
substitute for appeal, except when the questioned order is an
oppressive exercise of 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 (D.D.
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]).
Same; Same; Certiorari may be entertained where appeal will
not afford a speedy and adequate relief.—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 cer-

104

104 SUPREME COURT REPORTS ANNOTATED

 Acain vs. Intermediate Appellate Court

tiorari 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.

PETITION for certiorari to review the decision of the

Court of Appeals. Melo, J.

The facts are stated in the opinion of the Court.

PARAS, J.:

This is a petition for **review on certiorari of the decision<a

href="#p155scra8960104001"> a
> 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-A-CEB 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-A-CEB. 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
in 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,

________________

** Penned by Justice Jose A. R. Melo and concurred in by Justices

Milagros A. German and Nathanael P. De Pano, Jr.

105
 VOL. 155, OCTOBER 27, 1987 105
Acain vs. Intermediate Appellate Court.

docketed as Special Proceedings No. 591-A-CEB (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) submitted 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 predeceases me, all the money properties, lands, houses
there in Bantayan and here in Cebu City which constitute my
share shall be given by 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-A-CEB.
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 the
deceased and the latter’s widow Rosa Diongson Vda. de
Acain) filed a motion to dismiss on the following grounds:
(1) 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 preterited.
(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 In-
106
106 SUPREME COURT REPORTS ANNOTATED
Acain vs. Intermediate Appellate Court

termediate 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-A-CEB.
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 ERIT 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 inviolable.

107

VOL. 155, OCTOBER 27, 1987 107

Acain vs. Intermediate Appellate Court

(F) As an instituted heir, petitioner has the legal

interest and standing to file the petition in Sp. Proc.
No. 591-A-CEB 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 preterited. 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 be 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 was totally omitted and
preterited in the will of the testator and that both adopted
child and the widow were deprived of at
108

108 SUPREME COURT REPORTS ANNOTATED

Acain vs. Intermediate Appellate Court

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.
Preterition annuls the institution of an heir and
annulment throws open to intestate succession the entire
inheritance including “la portion libre (que) no hubiese
dispuesto en virtual de legado, mejora o donation”
(Manresa, 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 in 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
109

VOL. 155, OCTOBER 27, 1987 109

Acain vs. Intermediate Appellate Court

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 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 (D.D. 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-CEB 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.
Leonidas, 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
110

110 SUPREME COURT REPORTS ANNOTATED

Acain vs. Intermediate Appellate Court

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 preterition. 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. Leonidas, 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-CEB 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

111

VOL. 155, OCTOBER 27, 1987 111

Acain vs. Intermediate Appellate Court

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 testamen-tary provisions before
the extrinsic validity of the will was resolved (Cayetano v.
Leonidas, supra; Nuguid 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 v. Court of Appeals, supra).
 PREMISES CONSIDERED, the petition is her eby
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.,
112

112 SUPREME COURT REPORTS ANNOTATED

Acain vs. Intermediate Appellate Court

Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and

Cortes, JJ., concur.
     Melencio-Herrera, J., see separate opinion.

MELENCIO-HERRERA, J., <a id="p155scra8850112001">

a><a id="p155scraconcurring in the result"> a>concurring
in the result:

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
preterition 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 omission is by mistake or thru an oversight;
“3. The omission is complete so that the forced heir
received nothing in the will.” (III 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.

“Preterition 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-

113

VOL. 155, OCTOBER 27, 1987 113

People vs. Masangkay

advertence in the omission of the adopted daughter, hence,

my concurrence in the result that total intestacy ensued.
Petition denied.

Notes.—Under Article 1056 of the Civil Code of 1899

which governs this case a person during his lifetime may
partition his property among his heirs to take effect after
his death and this deed is neither a will nor a donation.
(Mang-oy vs. Court of Appeals, 144 SCRA 33.)
Property donated inter-vivos is subject to collation after
donor’s death, whether the donation was made to a
compulsory or a stranger. (Vda. de Tupas vs. RTC of Negros
Occidental, 144 SCRA 622.)

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