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SUCCESION: SEANGIO TO RABADILLA 1

G.R. Nos. 140371-72 November 27, 2006DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,vs.HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, NationalCapital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D.SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO,SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D.SEANGIO,Respondents.D E C I S I O NAZCUNA, J. :This is a petition for certiorari1with application for the issuance of a writ of preliminary injunctionand/or temporary restraining order seeking the nullification of the orders, dated August 10, 1999and October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the RTC), dismissingthe petition for probate on the ground of preterition, in the consolidated cases, docketed as SP.Proc. No. 98-90870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the IntestateEstate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate ofthe Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."The facts of the cases are as follows:On September 21, 1988, private respondents filed a petition for the settlement of the intestateestate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870 of the RTC, andpraying for the appointment of private respondent Elisa D. SeangioSantos as specialadministrator and guardian ad litem of petitioner Dy Yieng Seangio.Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. Theycontended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) thedeceased Segundo executed a general power of attorney in favor of Virginia giving her thepower to manage and exercise control and supervision over his business in the Philippines; 3)

Virginia is the most competent and qualified to serve as the administrator of the estate ofSegundo because she is a certified public accountant; and, 4) Segundo left a holographic will,dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, forcause. In view of the purported holographic will, petitioners averred that in the event thedecedent is found to have left a will, the intestate proceedings are to be automaticallysuspended and replaced by the proceedings for the probate of the will.On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP.Proc. No. 9993396, was filed by petitioners before the RTC. They likewise reiterated that theprobate proceedings should take precedence over SP. Proc. No. 9890870 because testateproceedings take precedence and enjoy priority over intestate proceedings.2The document that petitioners refer to as Segundos holographic will is quoted, as follows: Kasulatan sa pag-aalis ng manaTantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila atnagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng

lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naginglapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niyana si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na akonasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang nakuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millonpesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya samga may-ari at stockholders ng China Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng TravelCenter of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan konginaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak athindi siya makoha mana.Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlongsaksi.3

(signed)

Segundo SeangioNilagdaan sa harap namin(signed)Dy Yieng Seangio (signed)Unang Saksi ikalawang saksi(signed)ikatlong saksiOn May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc. No. 9993396 were consolidated.4On July 1, 1999, private respondents moved for the dismissal of the probateproceedings5primarily on the ground that the document purporting to be the holographic will ofSegundo does not contain any disposition of the estate of the deceased and thus does not meetthe definition of a will under Article 783 of the Civil Code. According to private respondents, thewill only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, andnothing else; that all other compulsory heirs were not named nor instituted as heir, devisee orlegatee, hence, there is preterition which would result to intestacy. Such being the case, privaterespondents maintained that while procedurally the court is called upon to rule only on theextrinsic validity of the will, it is not barred from delving into the intrinsic validity of the same, andordering the dismissal of the petition for probate when on the face of the will it is clear that itcontains no testamentary disposition of the property of the decedent.Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, theauthority of the probate court is limited only to a determination of the extrinsic validity of the will;2) private respondents question the intrinsic and not the extrinsic validity of the will; 3)disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preteritiondoes not apply because Segundos will does not constitute a universal heir or heirs to theexclusion of one or more compulsory heirs.6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probateproceedings:

A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al.,clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo andVirginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus applies.However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, shenot being a compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to anabuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court[155 SCRA 100 (1987)] has made its position clear: "for respondents to have tolerated theprobate of the will and allowed the case to progress when, on its face, the will appears to beintrinsically void 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 couldhave passed upon the intrinsic validity of the testamentary provisions before the extrinsic validityof the will was resolved(underscoring supplied).

WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED forlack of merit. Special Proceedings No. 9993396 is hereby DISMISSED without pronouncementas to costs.SO ORDERED.7Petitioners motion for reconsideration was denied by the RTC in its order dated October 14,1999.Petitioners contend that:THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION ANDDECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE INISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999(ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:ITHE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OFRULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE

CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
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FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THETESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OFPRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THEFACT THAT IT IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS ISLIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E.,THE DUE EXECUTION THEREOF, THE TESTATORS TESTAMENTARY CAPACITY ANDTHE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;IIEVEN ASSUMINGARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITYTO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT ISINDUBITABLE FROM THE FACE OF THE TESTATORS WILL THAT NO PRETERITON

EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,IIIRESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THEINTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATEPROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.Petitioners argue, as follows:First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Courtwhich respectively mandate the court to: a) fix the time and place for proving the will when allconcerned may appear to contest the allowance thereof, and cause notice of such time andplace to be published three weeks successively previous to the appointed time in a newspaperof general circulation; and, b) cause the mailing of said notice to the heirs, legatees anddevisees of the testator Segundo;Second, the holographic will does not contain any institution of an heir, but rather, as its titleclearly states,Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsoryheir. Thus, there is no preterition in the decedents will and the holographic will on its face is not

intrinsically void;Third, the testator intended all his compulsory heirs, petitioners and private respondents alike,with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the directline of Segundo were preterited in the holographic will s ince there was no institution of an heir;Fourth, inasmuch as it clearly appears from the face of the holographic will that it is bothintrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearingof the testate case; and,Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners,and will render nugatory the disinheritance of Alfredo.The purported holographic will of Segundo that was presented by petitioners was dated, signedand written by him in his own handwriting. Except on the ground of preterition, privaterespondents did not raise any issue as regards the authenticity of the document.The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundosintention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that hecited therein. In effect, Alfredo was disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must beeffected through a will wherein the legal cause therefor shall be specified. With regard to thereasons for the disinheritance that were stated by Segundo in his document, the Court believesthat the incidents, taken as a whole, can be considered a form of maltreatment of Segundo byhis son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a childor descendant under Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children anddescendants, legitimate as well as i llegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life ofthe testator, his or her spouse, descendants, or ascendants;(2) When a child or descendant has accused the testator of a crime for which the lawprescribes imprisonment for six years or more, if the accusation has been foundgroundless;(3) When a child or descendant has been convicted of adultery or concubinage withthe spouse of the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influencecauses the testator to make a will or to change one already made;(5) A refusal without justifiable cause to support the parents or ascendant whodisinherit such child or descendant;(6) Maltreatment of the testator by word or deed, by the child or descendant;

8(7) When a child or descendant leads a dishonorable or disgraceful life;(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo can beconsidered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely written,dated, and signed by the hand of the testator himself. It is subject to no other form, and may bemade in or out of the Philippines, and need not be witnessed.Segundos document, although it may initially come across as a mere disinheritance instrument,conforms to the formalities of a holographic will prescribed by law. It is written, dated and signedby the hand of Segundo himself. An intent to dispose mortis causa[9]can be clearly deducedfrom the terms of the instrument, and while it does not make an affirmative disposition of thelatters property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. Inother words, the disinheritance results in the disposition of the property of the testator Segundoin favor of those who would succeed in the absence of Alfredo.10Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in theform and within the limits prescribed by law, must be recognized as the supreme law insuccession. All rules of construction are designed to ascertain and give effect to that intention. Itis only when the intention of the testator is contrary to law, morals, or public policy that it cannotbe given effect.11Holographic wills, therefore, being usually prepared by one who is not learned in the law, asillustrated in the present case, should be construed more liberally than the ones drawn by an

expert, taking into account the circumstances surrounding the execution of the instrument andthe intention of the testator.12In this regard, the Court is convinced that the document, even ifcaptioned as Kasulatan ng Pag-Aalis ng Mana,was intended by Segundo to be his lasttestamentary act and was executed by him in accordance with law in the form of a holographicwill. Unless the will is probated,13the disinheritance cannot be given effect.14With regard to the issue on preterition,15the Court believes that the compulsory heirs in thedirect line were not preterited in the will. It was, in the Courts opinion, Segundos last expressionto bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also,Segundo did not institute an heir16to the exclusion of his other compulsory heirs. The meremention of the name of one of the petitioners, Virginia, in the document did not operate toinstitute her as the universal heir. Her name was included plainly as a witness to the altercationbetween Segundo and his son, Alfredo.1wphi1Considering that the questioned document is Segundos holographic will, and that the law favorstestacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the CivilCode provides that no will shall pass either real or personal property unless it is proved and

allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of aperson to dispose of his property may be rendered nugatory.17In view of the foregoing, the trial court, therefore, should have allowed the holographic will to beprobated. It is settled that testate proceedings for the settlement of the estate of the decedenttake precedence over intestate proceedings for the same purpose.18WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila,Branch 21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge isdirected to reinstate and hear SP Proc. No. 99-93396 for the allowance of the holographic will ofSegundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until thetermination of the aforesaid testate proceedings.No costs.SO ORDERED.
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with the Registry of Deeds, they would have discovered that five (5) years earlier, OCT No. 5203had already been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trialcourt added.27The Court of Appeals, however, reversed the trial courts decision. The decretal part of theappellate decision reads:

WHEREFORE, premises considered, the decision appealed from is herebyREVERSED and SET ASIDE and a new one is entered declaring the TransferCertificate of Title No. T-375 registered in the name of J.L.T. Agro, Inc. as null andvoid.With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L.Teves.

SO ORDERED.28Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31January 1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to DonJulians two sets of heirs their future legitimes in his estate except as regards his (Don Julians)share in Hacienda Medalla Milagrosa.29The two sets of heirs acquired full ownership andpossession of the properties respectively adjudicated to them in the CFI decision and Don Julianhimself could no longer dispose of the same, including Lot No. 63. The disposition in the CFIdecision constitutes res judicata.30Don Julian could have disposed of only his conjugal share inthe Hacienda Medalla Milagrosa.31The appellate court likewise emphasized that nobody in his right judgment would preterit hislegal heirs by simply executing a document like the Supplemental Deed which practically coversall properties which Don Julian had reserved in favor of his heirs from the second marriage. Italso found out that the blanks reserved for the Book No. and Page No. at the upper right cornerof TCT No. T-375, "to identify the exact location where the said title was registered ortransferred," were not filled up, thereby indicating that the TCT is "spurious and of dubious

origin."32Aggrieved by the appella te courts decision, petitioner elevated it to this Court via a petition forreview on certiorari, raising pure questions of law.Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit:(a) that future legitime can be determined, adjudicated and reserved prior to the death of DonJulian; (b) that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner becausehe reserved the same for his heirs from the second marriage pursuant to the Compromise

Agreement; (c) that the Supplemental Deed was tantamount to a preterition of his heirs from thesecond marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for notcontaining entries on the Book No. and Page No.33While most of petitioners legal arguments have merit, the application of the appropriateprovisions of law to the facts borne out by the evidence on record nonetheless warrants theaffirmance of the result reached by the Court of Appeals in favor of respondents.Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to bequoted again:

13. That in the event of death of Julian L. Teves, the properties herein adjudicated toJosefa Teves Escao and Emilio B. Teves, (excluding the properties comprised asHacienda Medalla Milagrosa together with all its accessories and accessions) shall beunderstood as including not only their one-half share which they inherited from theirmother but also the legitimes and other successional rights which would correspond tothem of the other half belonging to their father, Julian L.Teves . In other words, theproperties now selected and adjudicated to Julian L. Teves (not including hisshare in the Hacienda Medalla Milagrosa) shall exclusively be adjudicatedto thewife in second marriage of Julian L. Teves and his four minor children, namely,Milagros Donio Teves, his two acknowledged natural children Milagros ReyesTeves and Pedro Reyes Teves and his two legitimated children Maria EvelynDonio Teves and Jose Catalino Donio Teves." (Emphasis supplied)

With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor ofthe heirs of Don Julian from the second marriage became automatically operative upon theapproval of the Compromise Agreement, thereby vesting on them the right to validly dispose of

Lot No. 63 in favor of respondents.

Petitioner argues that the appellate court erred in holding that future legitime can be determined,adjudicated and reserved prior to the death of Don Julian. The Court agrees. Our declarationin Blas v. Santos34is relevant, where we defined future inheritance as any property or right notin existence or capable of determinat ion at the t im e of the contract,that a person may inthe future acquire by succession. Article 1347 of the New Civil Code explicitly provides:

ART. 1347. All things which are not outside the commerce of men, including futurethings, may be the object of a contract. All rights which are not intransmissible mayalso be the object of contracts.No contract may be entered into upon future inheritance except in casesexpressly authorized by law.

All services which are not contrary to law, morals, good customs, public order or public policy

may likewise be the object of a contract.Well-entrenched is the rule that all things, even future ones, which are not outside the commerceof man may be the object of a contract. The exception is that no contract may be entered intowith respect to future inheritance, and the exception to the exception is the partition intervivosreferred to in Article 1080.35For the inheritance to be considered "future," the succession must not have been opened at thetime of the contract.36A contract may be classified as a contract upon future inheritance,prohibited under the second paragraph of Article 1347, where the following requisites concur:

(1) That the succession has not yet been opened;(2) That the object of the contract forms part of the inheritance; and(3) That the promissor has, with respect to the object, an expectancy of a right whichis purely hereditary in nature.37

The first paragraph of Article 1080, which provides the exception to the exception and thereforealigns with the general rule on future things, 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 ofthe compulsory heirs.. . . .

In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition ismade by an act inter vivos, no formalities are prescribed by the Article.38The part i t ion wil l ofcourse be ef fect ive only af ter death. It does not necessarily require the formalities of a will forafter all it is not the partition that is the mode of acquiring ownership. Neither will the formalitiesof a donation be required since donation will not be the mode of acquiring the ownership hereafter death; since no will has been made it follows that the mode will be succession (intestatesuccession). Besides, the partition here is merely the physical determination of the part to begiven to each heir.39The historical antecedent of Article 1080 of the New Civil Code is Article 105640of the old CivilCode. The only change in the provision is that Article 1080 now permits anyperson (not atestator, as under the old law) to partition his estate by act inter vivos. This was intended toabrogate the then prevailing doctrine that for a testator to partition his estate by an act inter

vivos, he must first make a will with all the formalities provided by law.41Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition intervivoshis property, and distribute them among his heirs, and this partition is neither a donationnor a testament, but an inst rument of a sp ecial character, sui generis,which is revocable atany t ime by thecausante during his l i fet ime, and does not operate as a conveyance of t i t leunt i l his d eath.It derives its binding force on the heirs from the respect due to the will of theowner of the property, limited only by his creditors and the intangibility of the legitime of theforced heirs.42The partition inter vivosof the properties of Don Julian is undoubtedly valid pursuant to Article1347. However, considering that it would become legally operative only upon the death of DonJulian, the right of his heirs from the second marriage to the properties adjudicated to him underthe compromise agreement was but a mere expectancy. It was a bare hope of succession to theproperty of their father. Being the prospect of a future acquisition, the interest by its nature wasinchoate. It had no attribute of property, and the interest to which it related was at the timenonexistent and might never exist.43
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Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor ofpetitioner, Don Julian remained the owner of the property since ownership over the subject lotwould only pass to his heirs from the second marriage at the time of his death. Thus, as theowner of the subject lot, Don Julian retained the absolute right to dispose of it during his lifetime.His right cannot be challenged by Milagros Donio and her children on the ground that it hadalready been adjudicated to them by virtue of the compromise agreement.Emerging as the crucial question in this case is whether Don Julian had validly transferredownership of the subject lot during his lifetime. The lower court ruled that he had done sothrough the Supplemental Deed. The appellate court disagreed, holding that the SupplementalDeed is not valid, containing as it does a prohibited preterition of Don Julians heirs from thesecond marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. The

contention is well-founded.Article 854 provides that the preterition or omission of one, some, or all of the compulsory heirsin the direct line, whether living at the time of the execution of the will or born after the death ofthe testator, shall annul the institution of heir; but the devises and legacies shall be valid insofaras they are not inofficious. Manresadefines preterition as the omission of the heir in the wil l,either by not naming him at all or, while mentioning him as father, son, etc., by not instituting himas heir without disinheriting him expressly, nor assigning to him some part of the properties.44Itis the total omission of a compulsory heir in the direct line from inheritance.45It consists in thesilence of the testator with regard to a compulsory heir, omitting him in the testament, either bynot mentioning him at all, or by not giving him anything in the hereditary property but withoutexpressly disinheriting him, even if he is mentioned in the will in the latter case.46But there is nopreterition where the testator allotted to a descendant a share less than the legitime, since therewas no total omission of a forced heir.47In the case at bar, Don Julian did not execute a will since what he resorted to was apartition inter vivosof his properties, as evidenced by the court approved Compromise

Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to the death of DonJulian in the absence of a will depriving a legal heir of his legitime. Besides, there are otherproperties which the heirs from the second marriage could inherit from Don Julian upon hisdeath. A couple of provisions in the Compromise Agreement are indicative of Don Julians desirealong this line.48Hence, the total omission from inheritance of Don Julians heirs from the secondmarriage, a requirement for preterition to exist, is hardly imaginable as it is unfounded.Despite the debunking of respondents argument on preterition, still the petition would ultimatelyrise or fall on whether there was a valid transfer effected by Don Julian to petitioner. Notably,Don Julian was also the president and director of petitioner, and his daughter from the firstmarriage, Josefa, was the treasurer thereof. There is of course no legal prohibition against sucha transfer to a family corporation. Yet close scrutiny is in order, especially considering that suchtransfer would remove Lot No. 63 from the estate from which Milagros and her children couldinherit. Both the alleged transfer deed and the title which necessarily must have emanated fromit have to be subjected to incisive and detailed examination.Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible

title to the property in favor of the person whose name appears therein.49A certificate of titleaccumulates in one document a precise and correct statement of the exact status of the fee heldby its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactlythe real interest of its owner.50To successfully assail the juristic value of what a Torrens title establishes, a sufficient andconvincing quantum of evidence on the defect of the title must be adduced to overcome thepredisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate courtsruling, the appearance of a mere thumbmark of Don Julian instead of his signature inthe Supplemental Deedwould not affect the validity of petitioners title for this Court has ruledthat a thumbmark is a recognized mode of signature.51The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No.T-375 is marred by a grave irregularity which is also an illegality, as it contravenes the orthodox,conventional and normal process established by law. And, worse still, the illegality is reflected onthe face of both titles. Where, as in this case, the transferee relies on a voluntary instrument tosecure the issuance of a new title in his name such instrument has to be presented to the

Registry of Deeds. This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No.1529 or the Property Registration Decree. The sections read, thus:

SEC. 53. Presentation of owners duplicate upon entry of new certificate. No voluntary instrument shall be registered by the Register of Deeds unless theowners duplicate certificate is presented with such instrument, except in casesexpressly provided for in this Decree or upon order of the court, for cause shown.(Emphasis supplied). . . .SEC. 57. Procedure in registration of conveyances.An owner desiring to convey hisregistered land in fee simple shall execute and register a deed of conveyance in aform sufficient in law.The Register of Deeds shall thereafter make out in the

registration book a new certificate of title to the grantee and shall prepare and deliverto him an owners duplicate certificate. The Register of Deeds shall note upon theoriginal and duplicate certificate the date of transfer, the volume and page of theregistration book in which the new certificate is registered and a reference by numberto the last preceding certificate. The original and the owners duplicate of the grantorscertificate shall be stamped "cancelled." The deed of conveyance shall be filed andendorsed with the number and the place of registration of the certificate of titleof the land conveyed. (Emphasis supplied)

As petitioner bases its right to the subject lot on the Supplemental Deed, it should havepresented it to the Register of Deeds to secure the transfer of the title in its name. Apparently, ithad not done so. There is nothing on OCT No. 5203 or on the succeeding TCT No. T-375 eitherwhich shows that it had presented the Supplemental Deed. In fact, there is absolutely nomention of a reference to said document in the original and transfer certificates of title. It is in thisregard that the finding of the Court of Appeals concerning the absence of entries on the blanksintended for the Book No. and Page No. gains significant relevance. Indeed, this aspect fortifies

the conclusion that the cancellation of OCT No. 5203 and the consequent issuance of TCT No.T-375 in its place are not predicated on a valid transaction.What appears instead on OCT No. 5203 is the following pertinent entry:

Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC.CONDITIONS: Lost owners duplicate is hereby cancelled, and null and void anda new Certificate of Title No. 375 is issued per Order of the Court of FirstInstanceon file in this office.Date of Instrument: November 12, 1979Date of Inscription: Nov. 12, 1979 4:00 P.M.

(SGD) MANUEL C. MONTESAActing Deputy Register of Deeds II(Emphasis supplied)52

What the entry indicates is that the owners duplicate of OCT No. 5203 was lost, a petition forthe reconstitution of the said owners duplicate was filed in court, and the court issued an order

for the reconstitution of the owners duplicate and its replacement with a new one. But if theentry is to be believed, the court concerned (CFI, according to the entry) issued an order for theissuance of a new title which is TCT No. T-375 although the original of OCT No. 5203 on file withthe Registry of Deeds had not been lost.Going by the legal, accepted and normal process, the reconstitution court may order thereconstitution and replacement of the lost title only, nothing else. Since what was lost is theowners copy of OCT No. 5203, only that owners copy cou ld be ordered replaced. Thus, theRegister of Deeds exceeded his authority in issuing not just a reconstituted owners copy of theoriginal certificate of title but a new transfer certificate of title in place of the original certificate oftitle. But if the court order, as the entry intimates, directed the issuance of a new transfercertificate of titleeven designating the very number of the new transfer certificate of title itselfthe order would be patently unlawful. A court cannot legally order the cancellation andreplacement of the original of the O.C.T. which has not been lost,53as the petition forreconstitution is premised on the loss merely of the owners duplicate of the OCT

Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the

transfer of title to the subject lot in its name, instead of the Supplemental Deedwhich should be
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its proper course of action. It was so constrained to do because the Supplemental Deed doesnot constitute a deed of conveyance of the "registered land in fee simple" "in a form sufficient inlaw," as required by Section 57 of P.D. No. 1529.

A plain reading of the pertinent provisions of the Supplemental Deeddiscloses that theassignment is not supported by any consideration. The provision reads:

. . . .WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilitiesexecuted by Julian L. Teves, Emilio B. Teves and Josefa T. Escao at DumagueteCity on 16th day of November 1972 and ratified in the City of Dumaguete beforeNotary Public Lenin Victoriano, and entered in the latters notarial register as Doc. No.367; Page No. 17; Book No. V; series of 1972, Julian L. Teves, Emilio B. Teves and

Josefa T. Escao, transferred, conveyed and assigned unto J.L.T. AGRO, INC., all itsassets and liabilities as reflected in the Balance Sheet of the former as of December31, 1971.WHEREAS, on the compromise agreement, as mentioned in the Decision made in theCourt of First Instance of Negros Oriental, 12 thJudicial District Branch II, on Dec. 31,1964 pertaining to Civil Case No. 3443 the following properties were adjudicated toDon Julian L. Teves. We quote.From the properties at Bais

Adjudicated to Don Julian L.Teves. . . .Lot No. 63,Tax Dec. No. 33, Certificate of Title No. 5203, together with allimprovements. Assessed value -P2,720.00. . . .WHEREAS, this Deed of Assignment is executed by the parties herein in order toeffect the registration of the transfer of the above corporation.

NOW, THEREFORE, for and in consideration of the above premises the ASSIGNORhereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above describedparcel of land[s] with a fair m arket value of EIGHTY-FOUR THOUSAND PESOS(P84,000.00),Philippine Currency, and which transfer, conveyance and assignmentshall become absolute upon signing.54(Emphasis supplied)

The amount of P84,000.00 adverted to in the dispositive portion of the instrument does notrepresent the consideration for the assignment made by Don Julian. Rather, it is a merestatement of the fair market value of allthe nineteen (19) properties enumerated in theinstrument, of which Lot No. 63 is just one, that were transferred by Don Julian in favor ofpetitioner. Consequently, the testimony55of petitioners accountant that the assignment issupported by consideration cannot prevail over the clear provision to the contrary inthe Supplemental Deed.The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which isannotated on the back of the TCT No. T-375 as the consideration for theassignment.56However, the said annotation57shows that the mortgage was actually executed in

favor of Rehabilitation Finance Corporation, not of petitioner.58

Clearly, said mortgage, executedas it was in favor of the Rehabilitation Finance Corporation and there being no showing thatpetitioner itself paid off the mortgate obligation, could not have been the consideration for theassignment to petitioner.

Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1)consent of the contracting parties; (2) object certain which is the subject matter of the contract;and (3) Causeof the obligation which is established.Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce noeffect whatsoever. Those contracts lack an essential element and they are not only voidable butvoid or inexistent pursuant to Article 1409, paragraph (2).59The absence of the usual recital ofconsideration in a transaction which normally should be supported by a consideration such asthe assignment made by Don Julian of all nineteen (19) lots he still had at the time, coupled withthe fact that the assignee is a corporation of which Don Julian himself was also the Presidentand Director, forecloses the application of the presumption of existence of considerationestablished by law.60

Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New CivilCode is clear on the point, thus:

Art. 749. In order that the donation of the immovable may be valid, it must be made ina public document, specifying therein the property donated and the value of thecharges which the donee must satisfy.The acceptance may be made in the same deed of donation or in a separate publicdocument, but it shall not take effect unless it is done during the lifetime of the donor.If the acceptance is made in a separate instrument, the donor shall be notified thereofin an authentic form, and this step shall be noted in both instruments.

InSumipat, et al v. Banga, et al.,61this Court declared that title to immovable property does notpass from the donor to the donee by virtue of a deed of donation until and unless it has been

accepted in a public instrument and the donor duly notified thereof. The acceptance may bemade in the very same instrument of donation. If the acceptance does not appear in the samedocument, it must be made in another. Where the deed of donation fails to show theacceptance, or where the formal notice of the acceptance, made in a separate instrument, iseither not given to the donor or else not noted in the deed of donation and in the separateacceptance, the donation is null and void.In the case at bar, although the SupplementalDeed appears in a public document,62theabsence of acceptance by the donee in the same deed or even in a separate document is aglaring violation of the requirement.One final note. From the substantive and procedural standpoints, the cardinal objectives towrite finis to a protracted litigation and avoid multiplicity of suits are worth pursuing at alltimes.63Thus, this Court has ruled that appellate courts have ample authority to rule on specificmatters not assigned as errors or otherwise not raised in an appeal, if these are indispensable ornecessary to the just resolution of the pleaded issues.64Specifically, matters not assigned aserrors on appeal but consideration of which are necessary in arriving at a just decision and

complete resolution of the case, or to serve the interest of justice or to avoid dispensingpiecemeal justice.65In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is validor void,is unmistakably determinative of the underlying controversy. In other words, the issue ofvalidity or nullity of the instrument which is at the core of the controversy is interwoven with theissues adopted by the parties and the rulings of the trial court and the appellate court.66Thus,this Court is also resolute in striking down the alleged deed in this case, especially as it appearson its face to be a blatant nullity.WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of theCourt of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc.SO ORDERED.
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G.R. No. 72706 October 27, 1987CONSTANTINO 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 thepetition 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 TrialCourt of the Seventh Judicial Region, Branch XIII (Cebu City), is herebyordered to dismiss the petition in Special Proceedings No. 591 ACEB Nospecial pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, nowCourt of Appeals, (Rollo, pp. 108-109) are as follows:On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu CityBranch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuanceto 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 hisbrothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura wereinstituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 waswritten in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitionerwithout 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 executorof 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, landsand money which I earned jointly with my wife Rosa Diongson shall all begiven by me to my brother SEGUNDO ACAIN Filipino, widower, of legal ageand presently residing at 357-C Sanciangko Street, Cebu City. In case mybrother Segundo Acain pre-deceased me, all the money properties, lands,houses there in Bantayan and here in Cebu City which constitute my shareshall 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 claimingto 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 thelatter'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 universalheir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Saidmotion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court, respondentsfiled with the Supreme Court a petition for certiorari and prohibition with preliminary injunctionwhich was subsequently referred to the Intermediate Appellate Court by Resolution of the Courtdated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).Respondent Intermediate Appellate Court granted private respondents' petition and ordered thetrial court to dismiss the petition for the probate of the will of Nemesio Acain in SpecialProceedings No. 591 ACEBHis motion for reconsideration having been denied, petitioner filed this present petition for thereview 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 withpreliminary injunction is not the proper remedy under the premises;(B) The authority of the probate courts is limited only to inquiring into theextrinsic validity of the will sought to be probated and it cannot pass uponthe intrinsic validity thereof before it is admitted to probate;(C) The will of Nemesio Acain is valid and must therefore, be admitted toprobate. The preterition mentioned in Article 854 of the New Civil Coderefers to preterition of "compulsory heirs in the direct line," and does notapply 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 thelaw;(E) There may be nothing in Article 854 of the New Civil Code, thatsuggests that mere institution of a universal heir in the will would give theheir so instituted a share in the inheritance but there is a definite distinctintention 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 filethe 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 thereforeunconstitutional 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 willor born after the death of the testator, shall annul the institution of heir; butthe devisees and legacies shall be valid insofar as they are not; inofficious.If the omitted compulsory heirs should die before the testator, the institutionshall 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 themeither because they are not mentioned therein, or, though mentioned, they are neither institutedas 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 theCivil Code may not apply as she does not ascend or descend from the testator, although she isa compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there isno 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 ifhe were a legitimate child of the adopter and makes the adopted person a legal heir of theadopter. It cannot be denied that she has totally omitted and preterited in the will of the testatorand that both adopted child and the widow were deprived of at least their legitime. Neither can itbe denied that they were not expressly disinherited. Hence, this is a clear case of preterition ofthe legally adopted child.Pretention annuls the institution of an heir and annulment throws open to intestate successionthe entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legadomejora 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 anddevises made in the will for they should stand valid and respected, except insofar as thelegitimes are concerned.The universal institution of petitioner together with his brothers and sisters to the entireinheritance of the testator results in totally abrogating the will because the nullification of suchinstitution 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


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Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legaciesnor devises having been provided in the will the whole property of the deceased has been left byuniversal title to petitioner and his brothers and sisters. The effect of annulling the " Institution ofheirs 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 aprobate proceeding he must have an interest iii the estate, or in the will, or in the property to beaffected by it either as executor or as a claimant of the estate and an interested party is one whowould be benefited by the estate such as an heir or one who has a claim against the estate likea creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointedexecutor, 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 (Article782, Civil Code). At the outset, he appears to have an interest in the will as an heir, definedunder Article 782 of the Civil Code as a person called to the succession either by the provision ofa will or by operation of law. However, intestacy having resulted from the preterition ofrespondent adopted child and the universal institution of heirs, petitioner is in effect not an heir ofthe testator. He has no legal standing to petition for the probate of the will left by the deceasedand Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned orderis 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, 128SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that theremedies of certiorari and prohibition are not available where the petitioner has the remedy ofappeal or some other plain, speedy and adequate remedy in the course of law (DD ComendadorConstruction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remediesto 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 thewill, the due execution thereof, the testator's testamentary capacity and the compliance with therequisites or solemnities prescribed by law. The intrinsic validity of the will normally comes onlyafter the Court has declared that the will has been duly authenticated. Said court at this stage ofthe proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions ofthe 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]; andNepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probatecourt is not powerless to do what the situation constrains it to do and pass upon certainprovisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid theoppositors 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 thepetition 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. Andfor aught that appears in the record, in the event of probate or if the courtrejects the will, probability exists that the case will come up once againbefore 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 thepractical considerations that induce us to a belief that we might as well meethead-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 thesurviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedingswhich 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 petitiondeals with the validity of the provisions of the will. Respondent Judge allowed the probate of thewill. The Court held that as on its face the will appeared to have preterited the petitioner therespondent judge should have denied its probate outright. Where circumstances demand thatintrinsic validity of testamentary provisions be passed upon even before the extrinsic validity ofthe 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. ProceedingsNo. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner hasno legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widowand 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 arematters properly to be resolved after a hearing on the issues in the course of the trial on themerits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trialcourt on February 15, 1985 (Rollo, p. 109).For private respondents to have tolerated the probate of the will and allowed the case toprogress when on its face the will appears to be intrinsically void as petitioner and his brothersand sisters were instituted as universal heirs coupled with the obvious fact that one of the privaterespondents had been preterited would have been an exercise in futility. It would have meant awaste of time, effort, expense, plus added futility. The trial court could have denied its probateoutright or could have passed upon the intrinsic validity of the testamentary provisions before theextrinsic 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 hadthe right to resort to the more speedy, and adequate remedies of certiorari and prohibition tocorrect 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 theexistence 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 affordspeedy and adequate relief. (Maninang Court of Appeals, supra).PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioneddecision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolutiondated October 23, 1985 are hereby AFFIRMED.SO ORDERED.


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May 21, 1943G.R. No. 47799Administration of the estate of Agripino Neri y Chavez.ELEUTERIO NERI, ET AL.,petitioners,vs.IGNACIA AKUTIN AND HER CHILDREN, respondents.Ozamis and Capistrano for petitioners.Gullas, Leuterio, Tanner and Laput for respondents. MORAN, J. :This is a case where the testator in his will left all his property by universal title to the children byhis second marriage, the herein respondents, with preterition of the children by his first marriage,

the herein petitioner. This Court annulled the institution of heirs and declared a total intestacy.A motion for reconsideration has been filed by the respondents on the ground (1) that there is nopreterition as to the children of the first marriage who have received their shares in the propertyleft by the testator, and (2) that, even assuming that there has been a preterition, the effectwould not be the annulment of the institution of heirs but simply the reduction of the bequestmade to them.1. The findings of the trial court and those of the Court of Appeals are contrary to respondents'first contention. The children of the first marriage are Eleuterio, Agripino, Agapita, Getulia (whodied a little less than eight years before the death of her father Agripino Neri, leaving sevenchildren), Rosario and Celerina.

As to Eleuterio, the trial court said that "it is not, therefore, clear that Eleuterio has received hisshare out of the properties left by his father." It is true that Eleuterio appears to have received,as a donation from his father, parcel of land No. 4, but the question of whether there has been adonation or not is apparently left for decision in an independent action, and to that effect Ignacia

Akutin has been appointed special administratrix for the purpose of instituting such action.

With respect to Agripino and Agapita, the parcels of land which they have occupied, according tothe trial Court, "are a part of public land which had been occupied by Agripino Neri Chaves, and,therefore, were not a part of the estate of the latter."Concerning Getulia who died about eight years before the death of her father Agripino Neri, thetrial Court found that "neither Getulia nor her heirs received any share of the properties."

And with respect to Rosario and Celerina, the trial Court said that " it does not appear clear,therefore, that Celerina and Rosario received their shares in the estate left by their father

Agripino Neri Chaves."This is in connection with the property, real or personal, left by the deceased. As to moneyadvances, the trial Court found:It is contented, furthermore, that the children of Agripino Neri Chaves in his first marriagereceived money from their father. It appears that Nemesio Chaves is indebted in the amount ofP1,000; Agripino, in the amount of P500 as appears in Exhibits 14 and 15; Getulia, in theamount of P155 as appears in Exhibit 16, 17, and 18; Celerina in the amount of P120 asappears in Exhibit 19, 19-A and 19-B.

From these findings of the trial Court it is clear that Agapita, Rosario and the children of Getuliahad received from the testator no property whatsoever, personal, real or in cash.But clause 8 of the will is invoked wherein the testator made the statement that the children byhis first marriage had already received their shares in his property excluding what he had giventhem as aid during their financial troubles and the money they had borrowed from him which hecondoned in the will. Since, however, this is an issue of fact tried by the Court of Fi rst Instance,and we are reviewing the decision of the Court of Appeals upon a question of law regarding thatissue, we can rely only upon the findings of fact made by the latter Court, which are as follows:Since all the parcels that corresponded to Agripino Neri y Chaves are now in the administrator'spossession, as appears in the inventory filed in court, it is clear that the property of the deceasedhas remained intact and that no portion thereof has been given to the children of the firstmarriage.x x x x x x x x xIt is stated by the court and practically admitted by the appellants that a child of the first marriagenamed Getulia, or her heirs after her death, did not receive any share of the property of her

father.

It is true that in the decision of the Court of Appeals there is also the following paragraphs:As regards that large parcel of land adjoining parcel No. 1, it is contended that after the courthad denied the registration thereof. Agripino Neri y Chaves abandoned the said land and thatlater on some of the children of the first marriage possessed it, thereby acquiring title andinterest therein by virtue of occupation and not through inheritance. It is not true that this parcelcontaining 182.6373 hectares is now assessed in the names of some of the children of the firstmarriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g, the owners of the propertyare Agapita Neri de Chaves y Hermanos. Apparently, the said land is still claimed to be theproperty not only of the children of the first marriage but also of those of the second marriage.This paragraph is but a corroboration of the finding made by the Court of Appeals that noproperty has ever been advanced by the testator to the children by his first marriage. The large

parcel of land adjoining parcel No. 1 was alleged by the children of the second marriage to havebeen advanced by the testator to the children by his first marriage; but the Court of Appealsbelied this claim. "It is not true," says that Court, "that this parcel containing 182.6373 hectares isnow assessed in the names of some of the children of the first marriage, for as shown on TaxDeclaration No. 9395, Exhibit 11-g, the owners of the property are Agapita Neri de Chaves yHermanos," that is, the children of both marriages. And the Court of Appeals added that"apparently, the said land is still claimed to be the property not only of the children of the firstmarriage but also of those of the second marriage," which is another way of stating that theproperty could not have been advanced by the testator to the children by the first marriage wouldnot lay a claim on it.We conclude, therefore, that according to the findings of fact made by the Court of Appeals, thetestator left all his property by universal title to the children by his second marriage, and thatwithout expressly disinheriting the children by his first marriage, he left all his property byuniversal title to the children by his second marriage, he left nothing to them or, at least, some ofthem. This is, accordingly, a case of preterition governed by article 814 of the Civil Code, which

provides that the institution of heirs shall be annulled and intestate succession should bedeclared open.2. Upon the second question propounded in the motion for reconsideration, respondents seemto agree that article 814 of the Civil Code is the law applicable but, in their discussion as to theeffect of preterition, they confuse article 814 with articles 817 and 851 and other articles of theCivil Code. These three articles read:

ART. 814. The preterition of one or of all of the forced heirs in the direct line, whether living atthe execution of the will or born after the death of the testator, shall annul the institution of heirs;but the legacies and betterments shall be valid in so far as they are not inofficious.The preterition of the widower or widow does not annul the institution; but the person omittedshall retain all the rights granted to him by articles 834, 835, 836, and 837 of this Code.

ART. 817. Testamentary dispositions which diminish the legitimate of the forced heirs shall bereduced on petition of the same in so far as they are inofficious or excessive.

ART. 851. Disinheritance made without a statement of the cause, or for a cause the truth ofwhich, if contested, is not shown, or which is not one of those stated in the four following articles,

shall annul the institution of heirs in so far as it is prejudicial to the disinherited person; but thelegacies, betterments, and other testamentary dispositions shall be valid in so far as they are notprejudicial to said legitime.The following example will make the question clearer: The testator has two legitimate sons, Aand B, and in his will he leaves all his property to A, with total preterition of B. Upon these facts,shall we annul entirely the institution of heir in favor of A and declare a total intestacy, or shall wemerely refuse the bequest left A, giving him two-thirds, that is one third of free disposal and one-third of betterments, plus one-half of the other third as strict legitime, and awarding B only theremaining one-half of the strict legitime? If we do the first, we apply article 814; if the second, weapply articles 851 or 817. But article 851 applies only in cases of unfounded disinheritance, andall are agreed that the present case is not one of disinheritance but of preterition. Article 817 ismerely a general rule inapplicable to specific cases provided by law, such as that of preterition ordisinheritance. The meaning of articles 814 and 851, their difference and philosophy, and theirrelation to article 817, are lucidly explained by Manresa in the following manner:Cuando la legitima no es usufructuria, como ocurre en los demas casos, la pretericion no puede

menos de alterar esencialmente la institucion de heredero. Esta ha de anularse, pero en todo o


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en parte, esto es, solo en cuanto perjudique el derecho del legitimario preterido? El articulo 814opta por la primer solucion, ya que hemos de atenermos estrictmente al testo de la ley; mientrasque el articulo 851, en casos anlogos, opta por la segunda.En efecto; la desheredacion sin justa causa no produce el efecto de desheredar. El herederoconserva derecho a su legitima, pero nada mas que a su legitima. Los legados, las merjoras, silas hay, y aun la institucion de heredero, son validas en cuanto no perjudiquen al herederoforzoso.La diferencia se notara perfectamente con un ejemplo. Un solteron, sin decendientes niascendientes legitimos, hace testamento instituyendo por heredero a un pariente lejano.Despues reconoce un hijo natural, o se casa y tiene descendencia, y muere sin modificar sudisposicion testamentaria. A su muerte, el hijo natural, o los legitimos, fundadose en la nulidad

total de la institucion, con arreglo al articulo 814, piden toda la herencia. En el caso del articulo851 solo podrian podrian pedir su legitima. Preterdos, adquieren derecho atodo;desheredados, solo les corresponde un tercio o dos tercios, segun el caso.En el fondo la cuestion es indentica. El testador puede siempre disponer a su arbitrio de la partelibre. El legitimario, contra la voluntad expresa del testdor, solo tiene derecho a su legitima.Preterido o desheredado sin justa causa la legitima. Preterido o desheredado sin justa causa lalegitma es suya. Desheredado o preterido, la porcion libre no le corresponde, cuando el testadorla asigna a otro. Logicamente no cabe que el legitmario, en caso de pretericion, reciba todos losbienes cuando el testador haya dispuesto de ellos a titulo de herencia, y no cuando hayadispuesto del tercio lebre a titulo de legado.Cual es la razon de esta differencia? En la generalidad de los casos puede fundarse el preceptoen la presunta voluntad del testador. Este, al desheredar, revela que existe alguna razon amotivo que le impulsa a obrar asi; podra no ser bastante para privar al heredero de su legitima,pero siempre ha de estimarse sufficiente para privarle del resto de la herencia, pues sobre estano puede pretender ningun derecho el desheredad. El heredero preterido no ha sido privado

expresamente de nada; el testador, en los casos normales, obra si por descuido o por error.Hemos visto un testamento en el que no se institula heredera a una hija monja, por creer latestadora que no podia heredar. En otros caos se ignora la existencia de un descendiente o deun ascendiente. Cuando el preterido es una persona que ha nacido despues de muerto eltestador o despues de hecho el testamento, la razon es aun mas clara; la omision ha depresumirse involuntaria; el testador debe suponerse que hubiera instituido heredero a esapersona si hubiera existido al otorgarse el testamento, y no solo en cuanto a la legitima, sino entoda la herencia, caso de no haber otros herederos forzosos, y en iguales terminos que losdemas herederos no mejorados de un mode expreso.La opinion contraria puede tambien defederse, suponiendo que la ley anula el titulo deheredero, mas no en absoluto la participacion en el caudal; que asi como al exceptuar la mejorase refiere a todo el tercio o a la parte de el que haya distribuido el causante, al exceptuar loslegados se refierse a la parte libre de que haya dispuesto el mismo testador, considerandocomo un simple legatario de esa porcion a la persona a quien el testador designo comoheredero. Abonaria esta solucion el articulo 817, al declarar que las disposiciones testamentaria

que menguan la legitima de los herederos forzosos han de reducirse en cuanto fuereninoficiosas, pues amparado en este articulo el heredero voluntario, puede pretender que ladisposicion a su favor sea respetada en cuato no perjudique a las legitimas.La jurisprudencia no ha resuelto de frente esta cuestion, porque no se le ha presentado en losterminos propuestos; pero ha demonstrado su criterio.Hemos citado las Resoluciones de la Direccion de 30 de octubre de 1896 y de 20 de mayo de1893. En la primera se decide con valentia, con arreglo al texto expreso del articulo 814; lainstitucion de heredero se anula en absoluto, y se abre para toda la herencia la succesionintestada. En la segunda se rehuye la cuestion, fundandose en circunstancias secundarias. Enel articulo siguiente examinaremos

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