G.R. No. L-23079 February 27, 1970RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO,petitioners,vs.HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGArespondents.CASTRO,J.:On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457) a petition for probate,ante mortem, of her last will and testament. The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate of the will allowed after due hearing.The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted children.On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto Cruz was appointed executor without bond by the same court in accordance with the provisions of the decedent's will, notwithstanding the blocking attempt pursued by the petitioner Ruben Austria.Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs.Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the courta quoallowed the petitioners' intervention by its order of December 22, 1959, couched in broad terms, as follows: "The Petition in Intervention for Partition filed by the above-named oppositors [Ruben Austria, et al.,] dated November 5, 1959 is hereby granted."In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers produced and presented by the respondents. On motion of the petitioners Ruben Austria, et al., these documents were referred to the National Bureau of Investigation for examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the petitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from a Constabulary questioned-document examiner whose views undermine the authenticity of the said documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption papers to the Philippine Constabulary for further study. The petitioners likewise located former personnel of the court which appeared to have granted the questioned adoption, and obtained written depositions from two of them denying any knowledge of the pertinent adoption proceedings.On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, let al., moved the lower court to set for hearing the matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for hearing arrived, however, the respondent Benita Cruz-Meez who entered an appearance separately from that of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners' intervention, should it be permitted, to properties not disposed of in the will of the decedent.On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their respective memoranda, and finally, the lower court issued an order on June 4, 1963, delimiting the petitioners' intervention to the properties of the deceased which were not disposed of in the will.The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition, from the respondents. On October 25, 1963 the same court denied the petitioners' motion for reconsideration.A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily denied on April 21, 1964.Hence this petition forcertiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties that were not included in the decedent's testamentary dispositions.The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearest surviving blood relatives of the decedent. On the other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last will immaculate in its extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds support in article, 842 of the Civil Code which reads:One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor of any person having capacity to succeed.One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs.The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been disposed of in the will, for to that extent intestate succession can take place and the question of the veracity of the adoption acquires relevance.The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs would retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false.The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this Court to the following pertinent portions of the will of the deceased which recite:III. Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan, sa kaparaanang sumusunod:A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati () ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati () ng mga lagay na lupa at palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang kalahati () ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria.The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived into believing that she was legally bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had the deceased known the adoption to be spurious, she would not have instituted the respondents at all the basis of the institution being solely her belief that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the rights of the parties in barring the petitioners nephews and niece from registering their claim even to properties adjudicated by the decedent in her will?Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur:First, the cause for the institution of heirs must be stated in the will;second, the cause must be shown to be false; andthird, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause.The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the institution of the respondents was the testatrix's belief that under the law she could not do otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications.And even if we should accept the petitioners' theory that the decedent instituted the respondents Perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false assumption that her adoption of these respondents was valid, still such institution must stand.Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may have written in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not have made the institution if he had known the cause for it to be false. Now, would the late Basilia have caused the revocation of the institution of heirs if she had known that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them nonetheless?The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain. The phrases,"mga sapilitang tagapagmana"and"sapilitang mana,"were borrowed from the language of the law on succession and were used, respectively, to describe the class of heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the decedent would have willed her estate other than the way she did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the respondents more than what she thought the law enjoined her to give to them. Compare this with the relatively small devise of land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the testate by intestacy a result which would subvert the clear wishes of the decedent.Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code: "The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy."1Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate,2as was done in this case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect.3A probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence. In this situation, it becomes our duty to give full expression to her will.4At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose, and cannot be the subject of a collateral attack.5To the petitioners' charge that the lower court had no power to reverse its order of December 22, 1959, suffice it to state that, as borne by the records, the subsequent orders complained of served merely to clarify the first an act which the court could legally do. Every court has the inherent power to amend and control its processes and orders so as to make them conformable to law and justices.6That the courta quohas limited the extent of the petitioners' intervention is also within its powers as articulated by the Rules of Court.7ACCORDINGLY, the present petition is denied, at petitioners cost.G.R. No. L-17818 January 25, 1967TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all surnamed Reyes y Barretto,plaintiffs-appellants,vs.LUCIA MILAGROS BARRETTO-DATU,defendant-appellee.Recto Law Office for plaintiff-appealant.Deogracias T. Reyes and Associates for defendant-appellee.REYES, J.B.L.,J.:Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No. 1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver to the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his deceasea wife under the terms of the will of the late Bibiano Barretto, consisting of lots in Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.The decision appealed from sets the antecedents of the case to be as follows:"This is an action to recover one-half share in the fishpond, located in the barrio of San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land Records of this Province, being the share of plaintiff's wards as minor heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto and his nephew an nieces The usufruct o the fishpon situate i barrio Sa Roque Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria Gerardo I the meantime Maria Gerardo was appointe administratrix. By virtue thereof, she prepared a project of partition, which was signed by her in her own behalf and as guardian of the minor Milagros Barretto. Said project of partition was approved by the Court of First Instance of Manila on November 22, 1939. The distribution of the estate and the delivery of the shares of the heirs followed forthwith. As a consequence, Salud Barretto took immediate possession of her share and secured the cancellation of the original certificates of title and the issuance of new titles in her own name.Everything went well since then. Nobody was heard to complain of any irregularity in the distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon her death, it was discovered that she had executed two wills, in the first of which, she instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second, she revoked the same and left all her properties in favor of Milagros Barretto alone. Thus, the later will was allowed and the first rejected. In rejecting the first will presented by Tirso Reyes, as guardian of the children of Salud Barretto, the lower court held that Salud was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was appealed to the Supreme Court, which affirmed the same.1Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this action for the recovery of one-half portion, thereof.This action afforded the defendant an opportunity to set up her right of ownership, not only of the fishpond under litigation, but of all the other properties willed and delivered to Salud Barretto, for being a spurious heir, and not entitled to any share in the estate of Bibiano Barretto, thereby directly attacking the validity, not only of the project of partition, but of the decision of the court based thereon as well.The defendant contends that the Project of Partition from which Salud acquired the fishpond in question is void ab initio and Salud Barretto did not acquire any valid title thereto, and that the court did not acquire any jurisdiction of the person of the defendant, who was then a minor.'Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the project of partition submitted in the proceedings for the settlement of the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null and voidab initio(not merely voidable) because the distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was not a daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity of the project of partition was decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force) providing as follows: .A partition in which a person was believed to be an heir, without being so, has been included, shall be null and void.The courta quofurther rejected the contention advanced by plaintiffs that since Bibiano Barretto was free to dispose of one-third (1/3) of his estate under the old Civil Code, his will was valid in favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such free part. And it concluded that, as defendant Milagros was the only true heir of Bibiano Barretto, she was entitled to recover from Salud, and from the latter's children and successors, all the Properties received by her from Bibiano's estate, in view of the provisions of Article 1456 of the new Civil Code of the Philippines establishing that property acquired by fraud or mistake is held by its acquirer in implied trust for the real owner. Hence, as stated at the beginning of this opinion, the Courta quonot only dismissed the plaintiffs' complaint but ordered them to return the properties received under the project of partition previously mentioned as prayed for in defendant Milagros Barretto's counterclaim. However, it denied defendant's prayer for damages. Hence, this appeal interposed by both plaintiffs and defendant.Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to the present case by the court below. The reason is obvious: Salud Barretto admittedly had been instituted heir in the late Bibiano Barretto's last will and testament together with defendant Milagros; hence, the partition had between them could not be one such had with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (Article 1081) does not speak of children, or descendants, but ofheirs(without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament; for Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the share () assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of Bibiano Barretto.Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime invalidate the institution of Salud as heir, since there was here nopreterition, or total ommission of a forced heir. For this reason,Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable, that case involving an instance of preterition or omission of children of the testator's former marriage.Appellee contends that the partition in question was void as a compromise on the civil status of Salud in violation of Article 1814 of the old Civil Code. This view is erroneous, since a compromise presupposes the settlement of a controversy through mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and the condition of Salud as daughter of the testator Bibiano Barretto, while untrue, was at no time disputed during the settlement of the estate of the testator. There can be no compromise over issues not in dispute. And while a compromise over civil status is prohibited, the law nowhere forbids a settlement by the parties over the share that should correspond to a claimant to the estate.At any rate, independently of a project of partition which, as its own name implies, is merely a proposal for distribution of the estate, that the court may accept or reject, it is the court alone that makes the distribution of the estate and determines the persons entitled thereto and the parts to which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree of distribution, once final, that vests title in the distributees. If the decree was erroneous or not in conformity with law or the testament, the same should have been corrected by opportune appeal; but once it had become final, its binding effect is like that of any other judgmentin rem, unless properly set aside for lack of jurisdiction or fraud.It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the same has become final, the validity or invalidity of the project of partition becomes irrelevant.It is, however, argued for the appellee that since the court's distribution of the estate of the late Bibiano Barretto was predicated on the project of partition executed by Salud Barretto and the widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto), and since no evidence was taken of the filiation of the heirs, nor were any findings of fact or law made, the decree of distribution can have no greater validity than that of the basic partition, and must stand or fall with it, being in the nature of a judgment by consent, based on a compromise.Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority for the proposition that a judgment by compromise may be set aside on the ground of mistake or fraud, upon petition filedin due time, where petition for "relief was filed before the compromise agreement a proceeding, was consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partition was not only ratified by the court's decree of distribution, but actually consummated, so much so that the titles in the name of the deceased were cancelled, and new certificates issued in favor of the heirs, long before the decree was attacked. Hence, Saminiada vs. Mata does not apply.Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole basis for the decree of distribution was the project of partition. But, in fact, even without it, the distribution could stand, since it was in conformity with the probated will of Bibiano Barretto, against the provisions whereof no objection had been made. In fact it was the court's duty to do so. Act 190, section 640, in force in 1939, provided: .SEC. 640.Estate, How Administered. When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, and such letters testamentary or of administration, shall extend to all the estate of the testator in the Philippine Islands.Such estate, after the payment of just debts and expenses of administration,shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in these Islands belonging to persons who are inhabitants of another state or country. (Emphasis supplied)That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of her father in 1939 does not imply that the said court was without jurisdiction to enter the decree of distribution. Passing upon a like issue, this Court ruled inRamos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they would be concluded by the result of the proceedings, not only as to their civil status but as the distribution of the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil. 938, "The proceeding for probate is onein rem(40 Cyc., 1265) and the court acquires jurisdiction over all persons interested, through the publication of the notice prescribed by section 630 C.P.C.; and any order that any be entered therein is binding against all of them." (See alsoin reEstate of Johnson, 39 Phil. 156.) "A final order of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees". (Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why, by analogy, these salutary doctrines should not apply to intestate proceedings.The only instance that we can think of in which a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action the effect of which, if successful, would be, as in the instant case, for another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and disposed of.It is well to observe, at this juncture, as this Court expressly declared inReyes vs. Barretto Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and that Maria Gerardo was not her judicially appointed guardian. The claim is not true. Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere statement in the project of partion that the guardianship proceedings of the minor Lucia Milagros Barretto are pending in the court, does not mean that the guardian had not yet been appointed; it meant that the guardianship proceedings had not yet been terminated, and as a guardianship proceedings begin with the appointment of a guardian, Maria Gerardo must have been already appointed when she signed the project of partition. There is, therefore, no irregularity or defect or error in the project of partition, apparent on the record of the testate proceedings, which shows that Maria Gerardo had no power or authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto, and, consequently, no ground for the contention that the order approving the project of partition is absolutely null and void and may be attacked collaterally in these proceedings.So that it is now incontestable that appellee Milagros Barretto was not only made a party by publication but actually appeared and participated in the proceedings through her guardian: she, therefore, can not escape the jurisdiction of the Manila Court of First Instance which settled her father's estate.Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have ignored that the distributee Salud was not her child, the act of said widow in agreeing to the oft-cited partition and distribution was a fraud on appellees rights and entitles her to relief. In the first place, there is no evidence that when the estate of Bibiano Barretto was judicially settled and distributed appellants' predecessor, Salud Lim Boco Barretto to, knew that she was not Bibiano's child: so that if fraud was committed, it was the widow, Maria Gerardo, who was solely responsible, and neither Salud nor her minor children, appellants herein, can be held liable therefor. In the second placegranting that there was such fraud, relief therefrom can only be obtained within 4 years from its discovery, and the record shows that this period had elapsed long ago.Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she became of age five years later, in 1944. On that year, her cause of action accrued to contest on the ground of fraud the court decree distributing her father's estate and the four-year period of limitation started to run, to expire in 1948 (Section 43, Act. 190). In fact, conceding that Milagros only became aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still became extinct in 1950. Clearly, therefore, the action was already barred when in August 31, 1956 she filed her counterclaim in this case contesting the decree of distribution of Bibiano Barretto's estate.In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso Reyes had induced her to delay filing action by verbally promising to reconvey the properties received by his deceased wife, Salud. There is no reliable evidence of the alleged promise, which rests exclusively on the oral assertions of Milagros herself and her counsel. In fact, the trial court made no mention of such promise in the decision under appeal. Even more: grantingarguendothat the promise was made, the same can not bind the wards, the minor children of Salud, who are the real parties in interest. An abdicative waiver of rights by a guardian, being an act of disposition, and not of administration, can not bind his wards, being null and void as to them unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for the settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or 1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition and decree of distribution is barred by the statute of limitations; and (3) that her claim that plaintiff-appellant guardian is a possessor in bad faith and should account for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the plaintiffs' action for partition of the fishpond described in the complaint should have been given due course.Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu the properties enumeracted in said decision, and the same is affirmed in so far as it denies any right of said appellee to accounting. Let the records be returned to the court of origin, with instructions to proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of the Register of Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in the complaint No costs.

G.R. No. L-24365 June 30, 1966IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased.ADOLFO C. AZNAR,executor and appellee,vs.MARIA LUCY CHRISTENSEN DUNCAN,oppositor and appellant.MARIA HELEN CHRISTENSEN,oppositor and appellee.J. Salonga and L. M. Abellera for oppositor and appellee.Carlos Dominguez, Jr. for executor-appellee.M. R. Sotelo for appellant.MAKALINTAL,J.:Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its decision of February 28, 1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased. The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484).In another incident relative to the partition of the deceased's estate, the trial court approved the project submitted by the executor in accordance with the provisions of the will, which said court found to be valid under the law of California. Helen Garcia appealed from the order of approval, and this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisions of the will should be governed by Philippine law, and returned the case to the lower court with instructions that the partition be made as provided by said law (G.R. No. L-16749).On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees.The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to the issue in this case:3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.4. I further declare that I now have no living ascendants, and no descendants except my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.x x x x x x x x x7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.x x x x x x x x x12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in that event, the life interest herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property with the same force and effect as if I had originally so given, devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and bequeath all the rest, remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share alike, the share of any of the three above named who may predecease me, to go in equal parts to the descendants of the deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton die before my own decease, then, and in that event, the share of my estate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de Trevio, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may die before my own decease, share and share alike.The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil Code, which provides:ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied." Appellant also suggests that considering the provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads:ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devices and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitimate.Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate.Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Commenting on Article 815, Manresa explains:Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el testador; en el de dejar algo al heredero forzoso no.Este no se encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima, pero que influeye poderosamente en el animo del legislador para decidirle a adoptar una solucion bien diferente de la sealada para el caso de pretericion.El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un calculo equivocado, ha repartido en favor de extraos o en favor de otros legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al complemento de la porcion que forzosamente la corresponde.... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)On the difference between preterition of a compulsory heir and the right to ask for completion of his legitime, Sanchez Roman says:La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se presume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente de ely no mencionandole en ninguna de sus disposiciones testamentarias, o noinstituyendole en parte alguna de la herencia,ni por titulo de heredero ni por el de legatar o aunque le mencionarao nombrara sin dejarle mas o menos bienes. Si le dejara algunos,por pocos que sean e insuficientes para cubrir su legitima, ya no seria caso depretericion,sino de complementode aquella. El primer supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo original la accionadsuplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.)Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, norassigning to him some part of the properties. Manresa continues:Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento.1wph1.tx x x x x x x x xB.Que la omision sea completa Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son, como veremos completamente distintos (6 Manresa, p. 428.)La privacion de la legitima puede ser total o parcial.Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815. (6 Manresa p. 418.)Again Sanchez Roman:QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no consigna de modo expreso esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria pedir el complemento de la misma, lo cual yano son el caso ni los efectos de la pretericion,que anula la institucion, sino simplemente los del suplemento necesariopara cubrir su legitima. (Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.)The question may be posed: In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, atitulo de heredero? In other words, should he be recognized or referred to in the will as heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir indeed her status as such is denied but is given a legacy of P3,600.00.While the classical view, pursuant to the Roman law, gave an affirmative answer to the question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows:RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo en esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le dejaba portitulode tal el completo de su legitima, la accion para invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de laquerella de inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no fuera el de heredero,sino al honor de que se le privaba no dandole estecaracter, y solo cuando era instituido heredero en parte o cantidad inferior a lo que le correspondiera porlegitima, era cuando bastaba el ejercicio de la accion ad suplementum para completarla,sin necesidad de anular las otras instituciones de heredero o demas disposiciones contenidas en el testamento.El Articulo 851se apartade este criterio estricto y se ajusta a la unica necesidad que le inspira cual es la de que secompletela legitima del heredero forzoso, a quienpor cualquier titulose haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de pedir elcomplementode la misma sin necesidad de que se anulen las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejadode menosde la legitima al heredero forzoso, lo haya sidoen el testamento, o sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero forzoso a quienel testadorhaya dejado,etc., esto es por titulo de legado o donacionmortis causaen el testamento y, no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 p. 937.)Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.)The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him.The decision of this Court inNeri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory of preterition. That decision is not here applicable, because it referred to a will where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime.One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this, point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned in fee simple.Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs against appellees in this instance.

G.R. No. L-47799 May 21, 1943Administration 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 by his 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 no preterition as to the children of the first marriage who have received their shares in the property left by the testator, and (2) that, even assuming that there has been a preterition, the effect would not be the annulment of the institution of heirs but simply the reduction of the bequest made 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 (who died a little less than eight years before the death of her father Agripino Neri, leaving seven children), Rosario and Celerina.As to Eleuterio, the trial court said that "it is not, therefore, clear that Eleuterio has received his share 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 a donation 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 to the 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, the trial 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 money advances, the trial Court found:It is contented, furthermore, that the children of Agripino Neri Chaves in his first marriage received money from their father. It appears that Nemesio Chaves is indebted in the amount of P1,000; Agripino, in the amount of P500 as appears in Exhibits 14 and 15; Getulia, in the amount of P155 as appears in Exhibit 16, 17, and 18; Celerina in the amount of P120 as appears 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 Getulia had 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 by his first marriage had already received their shares in his property excluding what he had given them as aid during their financial troubles and the money they had borrowed from him which he condoned in the will. Since, however, this is an issue of fact tried by the Court of First Instance, and we are reviewing the decision of the Court of Appeals upon a question of law regarding that issue, 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's possession, as appears in the inventory filed in court, it is clear that the property of the deceased has remained intact and that no portion thereof has been given to the children of the first marriage.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 marriage named 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 court had denied the registration thereof. Agripino Neri y Chaves abandoned the said land and that later on some of the children of the first marriage possessed it, thereby acquiring title and interest therein by virtue of occupation and not through inheritance. It is not true that this parcel containing 182.6373 hectares is now assessed in the names of some of the children of the first marriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g, the owners of the property are Agapita Neri de Chaves y Hermanos. Apparently, the said land is still claimed to be the property 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 no property 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 have been advanced by the testator to the children by his first marriage; but the Court of Appeals belied this claim. "It is not true," says that Court, "that this parcel containing 182.6373 hectares is now assessed in the names of some of the children of the first marriage, for as shown on Tax Declaration No. 9395, Exhibit 11-g, the owners of the property are Agapita Neri de Chaves y Hermanos," 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 first marriage but also of those of the second marriage," which is another way of stating that the property could not have been advanced by the testator to the children by the first marriage would not lay a claim on it.We conclude, therefore, that according to the findings of fact made by the Court of Appeals, the testator left all his property by universal title to the children by his second marriage, and that without expressly disinheriting the children by his first marriage, he left all his property by universal title to the children by his second marriage, he left nothing to them or, at least, some of them. 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 be declared open.2. Upon the second question propounded in the motion for reconsideration, respondents seem to agree that article 814 of the Civil Code is the law applicable but, in their discussion as to the effect of preterition, they confuse article 814 with articles 817 and 851 and other articles of the Civil Code. These three articles read:ART. 814. The preterition of one or of all of the forced heirs in the direct line, whether living at the 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 omitted shall 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 be reduced 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 of which, 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 the legacies, betterments, and other testamentary dispositions shall be valid in so far as they are not prejudicial to said legitime.The following example will make the question clearer: The testator has two legitimate sons, A and 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 we merely 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 the remaining one-half of the strict legitime? If we do the first, we apply article 814; if the second, we apply articles 851 or 817. But article 851 applies only in cases of unfounded disinheritance, and all are agreed that the present case is not one of disinheritance but of preterition. Article 817 is merely a general rule inapplicable to specific cases provided by law, such as that of preterition or disinheritance. The meaning of articles 814 and 851, their difference and philosophy, and their relation 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 en parte, esto es, solo en cuanto perjudique el derecho del legitimario preterido? El articulo 814 opta por la primer solucion, ya que hemos de atenermos estrictmente al testo de la ley; mientras que el articulo 851, en casos anlogos, opta por la segunda.En efecto; la desheredacion sin justa causa no produce el efecto de desheredar. El heredero conserva derecho asu legitima,pero nada mas que a su legitima. Los legados, las merjoras, si las hay, y aun la institucion de heredero, son validas en cuanto no perjudiquen al heredero forzoso.La diferencia se notara perfectamente con un ejemplo. Un solteron, sin decendientes ni ascendientes 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 su disposicion 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 articulo 851 solo podrian podrian pedir su legitima.Preterdos,adquieren derecho a todo;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 parte libre. 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 la legitma es suya. Desheredado o preterido, la porcion libre no le corresponde, cuando el testador la asigna a otro. Logicamente no cabe que el legitmario, en caso de pretericion, reciba todos los bienes cuando el testador haya dispuesto de ellos a titulo deherencia,y no cuando haya dispuesto del tercio lebre a titulo de legado.Cual es la razon de esta differencia? En la generalidad de los casos puede fundarse el precepto en la presunta voluntad del testador. Este, al desheredar, revela que existe alguna razon a motivo 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 esta no 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 la testadora que no podia heredar. En otros caos se ignora la existencia de un descendiente o de un ascendiente. Cuando el preterido es una persona que ha nacido despues de muerto el testador o despues de hecho el testamento, la razon es aun mas clara; la omision ha de presumirse involuntaria; el testador debe suponerse que hubiera instituido heredero a esa persona si hubiera existido al otorgarse el testamento, y no solo en cuanto a la legitima, sino en toda la herencia, caso de no haber otros herederos forzosos, y en iguales terminos que los demas herederos no mejorados de un mode expreso.La opinion contraria puede tambien defederse, suponiendo que la ley anula el titulo de heredero, mas no en absoluto la participacion en el caudal; que asi como al exceptuar la mejora se refiere a todo el tercio o a la parte de el que haya distribuido el causante, al exceptuar los legados se refierse a la parte libre de que haya dispuesto el mismo testador, considerando como un simple legatario de esa porcion a la persona a quien el testador designo como heredero. 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 fueren inoficiosas, pues amparado en este articulo el heredero voluntario, puede pretender que la disposicion 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 los terminos propuestos; pero ha demonstrado su criterio.Hemos citado las Resoluciones de la Direccion de 30 de octubre de 1896 y de 20 de mayo de 1893. En la primera se decide con valentia, con arreglo al texto expreso del articulo 814; la institucion de heredero se anula en absoluto, y se abre para toda la herencia la succesion intestada. En la segunda se rehuye la cuestion, fundandose en circunstancias secundarias. En el articulo siguiente examinaremos la sentencia de 16 de enero de 1895.Lainterpretacion que rectamente se deprende del art 814, es la de que solo valen, y eso en cuanto no sean inoficiosas, las disposiciones hechas a titulo de legado a mejora. En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo, o en parte?No se aade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara a institucion de heredero en cuanto perjudique a la legitima del desheredado.Debe, pues, entenderse que la anulacion es completa o total, y que este articulo, como especial en el caso que le motiva, rige con preferencia al 817.(6 Manresa, 3.a ed., pags. 351-353.) (Emphasis supplied).The following opinion of Sanchez Roman is to the same effect and dispels all possible doubt on the matter:La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion entestada,total o parcial.Sera total, cuando el testador que comete la pretericion, hubiere dispuesto de todos los bienes por titulo universal de herencia en favor de los hrederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del articulo 814, al determinar, como efecto de la pretericion, el de que "anularia la institucion de heredero". Cierto es que la preericion esta intorducida, como remedio juridico, por sus efectos, en nombre y para garantia de la intergridad de la legitima de los herederos forzosos y como consecuencia del precepto del 813, de que "el testador no podra privar a los herederos de su legitima, sino en los casos expresamente determinados por la ley", que son los de desheredacion con justa causa.Cierto es, tambien, que en la desheredacion es muy otro el criterio del Codigo y que su formula legal, en cuanto a sus efectos, es de alcance mas limitado, puesto que, conforme al articulo 851, la desheredacion hecha sin condiciones de validez, "anulara la institucion de heredero", lo mismo que la pretericion, pero solo "en cuanto perjudique la desheredado de modo ilegal e ineficaz; salvedad o limitacion de los efectos de nulidad de la institucion de los efectos de nulidad de la institucion hecha en el testmento, que no existe, segun se ha visto en el 814, por el que se declara, en forma general e indistinta, que anulara la institucion de heredero sin ninguna atencuacion respecto de que perjudique o no, total o parcialmente, la cuantia de la legitima del heredero forzoso en linea recta, preterido.El resultado de ambos criterios y formulas legales, manifestamente distintas, tiene que ser muy diverso. En el caso de la pretericion, propiamente tal o total pues si fuera parcial y se la dejara algo al heredero forzoso por cualquier titulo, aunque see algo no fuere suficiente al pago de sus derechos de legitima, no seria caso depretericion,regulado por el articulo 814, sino de complemento, regido por el 815 y la institucion no se anularia sino que se modificaria o disminuiria en lo necesario para dicho complente o de institucion de heredero en toda la herencia, al anularse la institucion, por efecto de la preterido o preteridos, respecto de toda la herencia, tambien; mientras qeu en el caso de desheredacion y de institucion en la totalidad de la herencia, tambien; mientras que en el caso de desheredacion y de institucion en la totalidad de la herencia a favor de otra persona, solo se anulara en parte precisa pra no perjudicar la legitima del deshersado, que aun siendo en este caso lalata,si no hubo mejoras, porque no se establecieron o porque los intituidos eran herederos voluntarios, dejaria subsistente la institucion en la poarte correspoondiente al tercio de libre disposicion. Asi es que los preteridos, en el supuesto indicado, sucedenabintestatoen todo, en concurrencia conlos demas herederos forzosos o llamados pro la ley alabintestato;los desheredados,unicamente en dos tercios o en uno o en uno tan solo, en la hipotesis de haberse ordernado mejoras.En cambio, ni por la desheredacion ni por la pretericion pierde su fuerza el testamento, en cuanto a dicho tercio libre, is se trata dedescendientes; o la mitad, si se trata de ascendientes, ya desheredados, ya preteridos, proque, ni por el uno ni por el otro medio, se anula mas que la institucion de heredero, en general, y totalmente por la pretericion, y solo en cuanto perjudique a la legitima del desheredado por la desheredacion; pero subsistiendo, en ambos casos, todas acquellas otras disposiciones que no se refeiren a la institucion de heredero y se hallen dentro del limite cuantitativo del tercio o mitad de libre disposicion, segun que se trate de descendientes o ascendientes, preteridos o desheredados.La invocacion del articulo 817 para modificar estos efectos de la pretericion, procurando limitar la anulacion de la institucion de herederos solo en cuanto perjudique a la legitima, fundadose en que dicho articulo establece que "las disposiciones testamentarias que menguan la legitma de los herederos forzosos se reduciran, a peticion de estos, en lo que fueren inoficiosas o excesivas," no es aceptable ni puede variar acquellos resultados, porque es un precepto decaracter generalen toda otra clase de dsiposiciones testamentarias que produzcan el efecto de menguar la legitima, que no puede anteponerse, en su aplicacion, a las deindole especialpara sealar los efectos de la pretericion o de la desheredacion, regulados privativa y respectivamente por los articulos 814 y 851.No obstante la pretericion, "valdran las mandas y legados en cuanto no sean inoficiosas." El texto es terminante y no necesita mayor explicacion, despues de lo dicho, que su propia letra, a no ser para observar que constituye una confimacion indudable de los efectos de la pretericion, en cuanto alcanzansolo, pero totalmente,a la anulacion de la institucion de heredero, pero no a la de las mandas y mejoras en cuanto no sean preteridos; calficativo de tales, como sinonimo legal deexcessivas,que en otros articulos, como el 817, establece la ley. (6 Sanchez Roman, Volumen 2.o pags. 1140-1141.)These comments should be read with care if we are to avoid misunderstanding. Manresa, for instance, starts expounding the meaning of the law with an illustration. He says that in case of preterition (article 814). the nullity of the institution of heirs is total, whereas in case of disinheritance (article 851), the nullity is partial, that is, in so far as the institution affects the legitime of the disinherited heirs. "Preteridos, adquieren derecho atodo;desheredados, solo les corresponde un tercio o dos tercios, segun el caso." He then proceeds to comment upon the wisdom of the distinction made by law, giving two views thereon. He first lays the view contrary to the distinction made by law, then the arguments in support of the distinction, and lastly a possible defense against said arguments. And after stating that the Spanish jurisprudence has not as yet decided squarely the question, with an allusion] to two resolutions of the Spanish Administrative Direction, one in favor of article 814 and another evasive, he concludes that the construction which may rightly be given to article 814 is that in case of preterition, the institution of heirs is nullin totowhereas in case of disinheritance the nullity is limited to that portion of the legitime of which the disinherited heirs have been illegally deprived. He further makes it clear that in cases of preterition, the property bequeathed by universal titled to the instituted heirs should not be merely reduced according to article 817, but instead, intestate succession should be opened in connection therewith under article 814, the reason being that article 814, "como especial en el caso que le motiva, rige con preferencia al 817." Sanchez Roman is of the same opinion when he said: "La invocacion del articulo 817 para modificar estos efectos de la pretecion, procurando limitar la anulacion de la institucion de heredero solo en cuanto perjudque a la legitima, fundandose en que dicho articulo establece que "las disposiciones testmentarias que menguan la legitima de los herederos forzosos se fueren inoficisosas o excesivas," no es aceptable ni puede variar aquellos resultados, porque es un precepto decaracter generalen toda otra clase de disposiciones testmentarias que produzcan el efecto de menguar la legitima, que no puede anteponerse, en su aplicacion, a las deindole especialpara sealar los efectos de la pretericon o de la desheredacion, regulados privativa y respectivamente por los articulos 814 y 851.Of course, the annulment of the institution of heirs in cases of preterition does not always carry with it the ineffectiveness of the whole will. Neither Manresa nor Sanchez Roman nor this Court has ever said so. If, aside from the institution of heirs, there are in the will provisions leaving to the heirs so instituted or to other persons some specific properties in the form of legacies ormejoras, such testamentary provisions shall be effective and the legacies andmejorasshall be respected in so far as they are not inofficious or excessive, according to article 814. In the instant case, however, no legacies ormejorasare provided in the will, the whole property of the deceased having been left by universal title to the children of the second marriage. The effect, therefore, of annulling the institution of heirs will be necessarily the opening of a total intestacy.But the theory is advanced that the bequest made by universal titled in favor of the children by the second marriage should be treated aslegadoandmejoraand, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code.The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with as a thing of separate and distinct from legacies or betterment. And they are separate and distinct not only because they are distinctly and separately treated in said article but because they are in themselves different. Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific property bequeathed by a particular or special title. The first is also different from a betterment which should be made expressly as such (article 828). The only instance of implied betterment recognized by law is where legacies are made which cannot be included in the free portion (article 828). But again an institution of heirs cannot be taken as a legacy.It is clear, therefore, that article 814 refers to two different things which are the two different objects of its two different provisions. One of these objects cannot be made to merge in the other without mutilating the whole article with all its multifarious connections with a great number of provisions spread throughout the Civil Code on the matter of succession. It should be borne in mind, further, that although article 814 contains who different provisions, its special purpose is to establish a specific rule concerning a specific testamentary provision, namely, the institution of heirs in a case of preterition. Its other provision regarding the validity of legacies and betterments if not inofficious is a mere reiteration of the general rule contained in other provisions (articles 815 and 817) and signifies merely that it also applies in cases of preterition. As regards testamentary dispositions in general, the general rule is that all "testamentary disposition which diminish the legitime of the forced heirs shall be reduced on petition of the same in so far as they are inofficous or excessive" (article 817). But this general rule does not apply to the specific instance of a testamentary disposition containing an institution of heirs in a case of preterition, which is made the main and specific subject of article 814. In such instance, according to article 814, the testamentary disposition containing the institution of heirs should be not only reduced but annulled in its entirety and all the forced heirs, including the omitted ones, are entitled to inherit in accordance with the law of intestate succession. It is thus evident that, if, in construing article 814, the institution of heirs therein dealt with is to be treated as legacies or betterments, the special object of said article would be destroyed, its specific purpose completely defeated, and in that wise the special rule therein established would be rendered nugatory. And this is contrary to the most elementary rule of statutory construction. In construing several provisions of a particular statute, such construction shall be adopted as will give effect to all, and when general and particular provisions are inconsistent, the latter shall prevail over the former. (Act No. 190, secs. 287 and 288.)The question herein propounded has been squarely decided by the Supreme Court of Spain in a case wherein a bequest by universal title was made with preterition of heirs and the theory was advanced that the instituted heirs should be treated aslegatarios. The Supreme Court of Spain said:El articulo 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido antes expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo, por lo tanto, procederse sobre tal base o supuesto, y consiguientemente, en un testmento donde fate la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribuido todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quein testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz,por lo que constituiria una interpertacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador,pues aun cuando asi fuese, sera esto razon para modificar la ley, peo que no autoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamnetificaion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay rason para convertir este juico en regla de interpretacion, desvirtuando y anulando por este procedimiento lo que el legislator quiere establecer. (6 Sanchez Roman, Volumen 2.o, p. 1138.)It is maintained that the word "heredero" under the Civil Code, is not synonymous with the term "heir" under the Code of Civil Procedure, and that the "heir" under the latter Code is no longer personally liable for the debts of the deceased as was the "heredero" under the Civil Code, should his acceptance be pure and simple, and from all these the conclusion is drawn that the provisions of article 814 of the Civil Code regarding the total nullity of the institution of heirs has become obsolete. This conclusion is erroneous. It confuses form with substance. It must be observed, in this connection, that in construing and applying a provision of the Civil Code, such meaning of its words and phrases as has been intended by the framers thereof shall be adopted. If thus construed it is inconsistent with the provisions of the Code of Civil Procedure, then it shall be deemed repealed; otherwise it is in force. Repeals by implication are not favored by the courts and when there are two acts upon the same subject, effect should be given to both if possible (Posadasvs.National City Bank, 296 U. S., 497). The word "heir" as used in article 814 of the Civil Code may not have the meaning that it has under the Code of Civil Procedure, but this in no wise can prevent a bequest from being made by universal title as is in substance the subject-matter of article 814 of the Civil Code. Again, it may also be true that heirs under the Code of Civil Procedure may receive that bequest only after payment of debts left by the deceased and not before as under the Civil Code, but this may have a bearing only upon the question as to when succession becomes effective and can in no way destroy the fact that succession may still be by universal or special title. Since a bequest may still be made by universal title and with preterition of forced heirs, its nullity as provided in article 814 still applies there being nothing inconsistent with it in the Code of Civil Procedure. What is important and is the basis for its nullity is the nature and effect of the bequest and not its possible name nor the moment of its effectiveness under the Code of Civil Procedure.Furthermore, there were in the Code of Civil Procedure sections Nos. 755 and 756 which read:SEC. 755.Share of child born after making will. When a child of a testator is born after the making of a will, and no provision is therein made for him, such child shall have the same share in the estate of the testator as if he had died intestate; and share of such child shall be assigned to him as in cases of intestate estates, unless it is apparent from the will that it was the intention of the testator that no provision should be made for such child.SEC. 756.Share of child or issue of child omitted from will. When a testator omits to provide in his will for any of his children, or for issue of a deceased child, and it appears that such omission was made by mistake, or accident, such child, or the issue of such child, shall have the same share in the estate of the testator as if he had died intestate, to be assigned to him as in the case of intestate estates.It is these provisions of the Code of Civil Procedure that have affected substantially articles 814 and 851 of the Civil Code, but they have been expressly repealed by Act No. 2141, section 1 of which read as follows:Sections seven hundred and fifty-five, seven hundred and fifty-six, seven hundred and fifty-seven, seven hundred and fifty-eight, and seven hundred and sixty of Act Numbered One hundred and ninety, entitled `An Act providing a Code of Procedure in Civil Actions and Special Proceedings in the Philippine Islands are hereby repealedand such provisions of the Civil Code as may have been amended or repealed by said sections are hereby restored to full force and effects. (Emphasis ours.)Among the provisions of the Civil Code which are thus expressly restored to full force are undoubtedly articles 814 and 851. There can be no possible doubt, therefore, that those two articles are in force.Article 1080 of the Civil Code that is also invoked deserves no consideration except for the observation that it has no relevancy in the instant case.Our attention is directed to the case ofEscuin vs. Escuin(11 Phil., 332). We have never lost sight of the ruling laid down in that case which has been reiterated inEleazar vs. Eleazar(37 Off. Gaz., p. 1782). In the Escuin case, the deceased left all his property to his natural father (not a forced heir) and his wife with total preterition of his father and wife. Without reconsidering the correctness of the ruling laid down in these two cases, we will note that the doctrine stands on facts which are different from the facts in the present case. There is certainly a difference between a case of preterition in which the whole property is left to a mere friend and a case of preterition in which the whole property is left to one or some forced heirs. If the testamentary disposition be annulled totally in the first case, the effect would be a total deprivation of the friend of his share in the inheritance. And this is contrary to the manifest intention of the testator. It may fairly be presumed that, under such circumstances, the testator would at leave give his friend the portion of free disposal. In the second case, the total nullity of the testamentary disposition would have the effect, not of depriving totally the instituted heir of his share in the inheritance, but of placing him and the other forced heirs upon the basis of equality. This is also in consonance with the presumptive intention of the testator. Preterition, generally speaking, is due merely to mistake or inadvertence without