1. DESCENT AND DISTRIBUTION; EFFECT OF PRETERITION. — According to the findings of fact in this case, 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. Held: That this is 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. ID.; ID.; RESPECTIVE SCOPE OF ARTICLES 814, 817, AND 851 OF THE CIVIL CODE. — 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 the court annul entirely the institution of heir in favor of A and declare a total intestacy, or shall it merely refuse the bequest left to 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 the court does the first, it applies article 814; if the second, it applies 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.

3. ID.; ID.; ID.; LEGACIES AND BETTERMENTS SHOULD BE RESPECTED IN SO FAR AS THEY ARE NOT INOFFICIOUS OR EXCESSIVE. — 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 or mejoras, such testamentary provisions shall be effective and the legacies and mejoras shall be respected in so far as they are not inofficious or excessive, according to article 814. In the instant case, however, no legacies or mejoras are 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.

4. ID.; ID.; ID.; INSTITUTION OF HEIRS DISTINGUISHED FROM LEGACIES AND BETTERMENTS. — The theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said articles concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by article 817. This, instead of construing, this court would be destroying integral provisions of the Civil Code.

5. ID.; ID.; ID.; ID. — The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or 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.

6. ID.; ID.; ID.; ID. — 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 two 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.

7. ID.; ID.; ID.; ID.; STATUTORY CONSTRUCTION. — As regards testamentary dispositions in general, the general rule is that all "testamentary dispositions which diminish the legitime of the forced heirs shall be reduced on petition of the same in so far as they are inofficious 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.)

8. ID.; ID.; ID.; ID.; ID.; "HEREDERO" UNDER THE CIVIL CODE AND "HEIR" UNDER THE CODE OF CIVIL PROCEDURE. — 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 (Posadas v. National City Bank, 296 U. S., 497).

9. ID.; ID.; ID.; ID.; ID.; ID. — 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 the 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.

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 petitioners. 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."cralaw virtua1aw library

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."cralaw virtua1aw library

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."cralaw virtua1aw library

This is in connection with the property, real or personal, left by the deceased. As to money advances, the trial Court found:jgc:chanrobles.com.ph

"It is contended, 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 Exhibits 16, 17, and 18; Celerina in the amount of P120 as appears in Exhibits 19, 19-A and 19-B."cralaw virtua1aw library

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:jgc:chanrobles.com.ph

"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.



"It 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."cralaw virtua1aw library

It is true that in the decision of the Court of Appeals there is also the following paragraph:jgc:chanrobles.com.ph

"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."cralaw virtua1aw library

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, for otherwise the children by the second 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 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:jgc:chanrobles.com.ph

"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.

"If the forced heirs omitted die before the testator, the institution shall become operative."cralaw virtua1aw library

"ART. 817. Testamentary dispositions which diminish the legitime of the forced heirs shall be reduced on petition of the same in so far as they are inofficious or excessive."cralaw virtua1aw library

"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."cralaw virtua1aw library

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 to 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:jgc:chanrobles.com.ph

"Cuando la legitima no es usufructuaria, 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 primera solucion, ya que hemos de atenernos estrictamente al texto de la ley; mientras que el articulo 851, en casos analogos, opta por la segunda.

"En efecto; la desheredacion sin justa causa no produce el efecto de desheredar. El heredero conserva derecho a su legitima, pero nada mas que a su legitima. Los legados, las mejoras, 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 descendientes 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, fundandose en la nulidad total de la institucion, con arreglo al articulo 814, piden toda la herencia. En el caso del articulo 851 solo podrian pedir su legitima. Preteridos, adquieren derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, segun el caso.

"En el fondo la cuestion es identica. El testador puede siempre disponer a su arbitrio de la parte libre. El legitimario, contra la voluntad expresa del testador, solo tiene derecho a su legitima. Preterido o desheredado sin justa causa la legitima es suya. Desheredado o preterido, la porcion libre no le corresponde, cuando el testador la asigna a otro. Logicamente no cabe que el legitimario, en caso de pretericion, reciba todos los bienes cuando el testador haya dispuesto de ellos a titulo de herencia, y no cuando haya dispuesto del tercio libre a titulo de legado.

"Cual es la razon de esta diferencia? En la generalidad de los casos puede fundarse el precepto en la presunta voluntad del testador. Este, al desheredar, revela que existe alguna razon o motivo que le impulsa a obrar asi; podra no ser bastante para privar al heredero de su legitima, pero siempre ha de estimarse suficiente para privarle del resto de la herencia, pues sobre esta no puede pretender ningun derecho el desheredado. 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 instituia heredera a una hija monja, por creer la testadora que no podia heredar. En otros casos 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 modo expreso.

"La opinion contraria puede tambien defenderse, 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 refiere 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 testamentarias 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 cuanto 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 demostrado su criterio.

"Hemos citado las Resoluciones de la Direccion de 30 de octubre de 1896 y de 20 de mayo de 1898. 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 sucesion 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.

"La interpretacion que rectamente se desprende del art. 814, es la de que solo valen, y eso en cuanto no sean inoficiosas, las disposiciones hechas a titulo de legado o mejora. En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo, o en parte? No se añade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto 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.) (Italics supplied).

The following opinion of Sanchez Roman is to the same effect and dispels all possible doubt on the matter:jgc:chanrobles.com.ph

"La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada, total o parcial. Sera total, cuando el testador que comete la pretericion, hubiere dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del articulo 814, al determinar, como efecto de la pretericion, el de que ’anulara la institucion de heredero’. Cierto es que la pretericion esta introducida, como remedio juridico, por sus efectos, en nombre y para garantia de la integridad 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’: es decir, nada mas que en lo que menoscabe o desconozca sus derechos a la legitima, y, por tanto en la parte cuota o cantidad que represente en el caudal hereditario, atendida la condicion de legitimario del desheredado de modo ilegal e ineficaz; salvedad o limitacion de los efectos de nulidad de la institucion hecha en el testamento, 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 atenuacion 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 ese algo no fuere suficiente al pago de sus derechos de legitima, no seria caso de pretericion, 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 complemento — o de institucion de heredero en toda la herencia, al anularse la institucion, por efecto de la pretericion, se abre la intestada en favor del preterido o preteridos, respecto de toda 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 la parte precisa para no perjudicar la legitima del desheredado, que aun siendo en este caso la lata, si no hubo mejoras, porque no se establecieron o porque los instituidos eran herederos voluntarios, dejaria subsistente la institucion en la parte correspondiente al tercio de libre disposicion. Asi es que los preteridos, en el supuesto indicado, suceden abintestato en todo, en concurrencia con los demas herederos forzosos o llamados por la ley al abintestato; los desheredados, unicamente en dos tercios o en uno tan solo, en la hipotesis de haberse ordenado mejoras.

"En cambio, ni por la desheredacion ni por la pretericion pierde su fuerza el testamento, en cuanto a dicho tercio libre, si se trata de descendientes; o la mitad, si se trata de ascendientes, ya desheredados, ya preteridos, porque, 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 aquellas otras disposiciones que no se refieren 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 heredero solo en cuanto perjudique a la legitima, fundandose en que dicho articulo establece que ’las disposiciones testamentarias que menguan la legitima de los herederos forzosos se reduciran, a peticion de estos, en lo que fueren inoficiosas o excesivas,’ no es aceptable ni puede variar aquellos resultados, porque es un precepto de caracter general en toda otra clase de disposiciones testamentarias que produzcan el efecto de menguar la legitima, que no puede anteponerse, en su aplicacion, a las de indole especial para señalar 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 confirmacion indudable de los efectos de la pretericion, en cuanto alcanzan solo, pero totalmente, a la anulacion de la institucion de heredero, pero no a la de las mandas y mejoras en cuanto no sean inoficiosas o perjudiquen a la legitima de los preteridos; calificativo de tales, como sinonimo legal de excesivas, que en otros articulos, como el 817, establece la ley." (6 Sanchez Roman, Volumen 2.0 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 a todo; 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 null in toto whereas 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 title 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 pretericion, procurando limitar la anulacion de la institucion de heredero solo en cuanto perjudique a la legitima, fundandose en que dicho articulo establece que ’las disposiciones testamentarias que menguan la legitima de los herederos forzosos se reduciran, a peticion de estos, en lo que fueren inoficiosas o excesivas,’ no es aceptable ni puede variar aquellos resultados, porque es un precepto de caracter general en toda otra clase de disposiciones testamentarias que produzcan el efecto de menguar la legitima, que no puede anteponerse, en su aplicacion, a las de indole especial para señalar los efectos de la pretericion o de la desheredacion, regulados privativa y respectivamente por los articulos 814 y 851."cralaw virtua1aw library

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 or mejoras, such testamentary provisions shall be effective and the legacies and mejoras shall be respected in so far as they are not inofficious or excessive, according to article 814. In the instant case, however, no legacies or mejoras are 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 title in favor of the children by the second marriage should be treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or 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 two 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 dispositions which diminish the legitime of the forced heirs shall be reduced on petition of the same in so far as they are inofficious 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 as legatarios. The Supreme Court of Spain said:jgc:chanrobles.com.ph

"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 testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el testador no hubiese 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 quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero que no autoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamentificacion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convertir este juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer." (6 Sanchez Roman, Volumen 2.0 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 (Posadas v. 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 the 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:jgc:chanrobles.com.ph

"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 the 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."cralaw virtua1aw library

"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."cralaw virtua1aw library

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 reads as follows:jgc:chanrobles.com.ph

"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 repealed and such provisions of the Civil Code as may have been amended or repealed by said sections are hereby restored to full force and effect." (Italics 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 of Escuin v. Escuin (11 Phil., 332). We have never lost sight of the ruling laid down in that case which has been reiterated in Eleazar v. 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 an acknowledged natural child; and, in the Eleazar case the deceased left all his property to a friend 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 least 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 which the testator may be presumed to treat alike all his children.

And specially is this true in the instant case where the testator omitted the children by his first marriage upon the erroneous belief that he had given them already more shares in his property than those given to the children by his second marriage. It was, therefore, the thought of the testator that the children by his first marriage should not receive less than the children by his second marriage, and to that effect is the decision of this Court sought to be reconsidered. Motion for reconsideration is hereby denied.

Yulo, C.J., I concur in the result.

Generoso, J., concurs.



OZAETA, J., concurring:chanrob1es virtual 1aw library

I concur in the majority opinion after mature reflection on the two points discussed in Justice Bocobo’s dissent.

Whether or not there was preterition of the testator’s surviving children by his first marriage, may not be entirely beyond dispute, because it is not altogether improbable that, before the testator made his will, said children of his had received cash advances from him, as stated in clause 8 of the will. But, to my mind, there can be no doubt that there was preterition of the testator’s grandchildren by his daughter Getulia, who died long before the testator made his will. These lineal descendants of the testator, who are also forced heirs of his, were completely ignored and omitted in the will. In clauses 7 and 8 of his will, the testator declared:jgc:chanrobles.com.ph

"Seventh. I declare that the children by my first wife have no longer any participation in the property described above, as they already received their corresponding shares in my exclusive property as stated above, for if a proper partition is made, what I have given out of my own property to each of my children by my first wife must exceed what will correspond to each of my children by my second wife.

"Eighth. I supplicated my children by my first wife that they should not contest this my last will, as they have already received their shares in my own property, much more than what I now give to the children by my second wife, excluding yet what I have given to them as aid during their financial troubles and what they have borrowed, which they have not yet paid me and which I now condone to them."cralaw virtua1aw library

Both the trial court and the Court of Appeals found in effect that these declarations turned out to be unfounded in fact, at least insofar as they referred to properties other than money alleged to have been received by the children of the first marriage. Be that as it may, I believe the deceased Getulia was not comprehended in said declaration anyway. When the testator said, "I declare that the children by my first wife have no longer any participation in the property described above," he referred only to his children who were living at that time and who, he evidently expected, would claim some participation in the property left by him; he could not have referred to Getulia also because she, having passed away, could no longer have or claim any participation in his property. Neither did he refer to Getulia’s children, for he did not mention them at all. Again, when the testator said, "I supplicated my children by my first wife that they should not contest this my last will," he could not have had Getulia in mind, because he knew the deceased could not contest his will; and if he had intended to include Getulia’s children, he would have mentioned them as his grandchildren. The condonation of debts made by the testator in clause 8 of his will referred to the debts of those children of his whom he entreated to refrain from contesting his will; and since Getulia could not have been entreated by him, it is logical to conclude that her petty debt of P155 was not embraced within that condonation. Getulia having passed away long before her father made his will, he had evidently forgotten her as well as her petty debt.

The conclusion that Getulia and her children were not included in the abovequoted declarations and that, therefore, they were entirely omitted in the will, is further strengthened by the undisputed fact that aside from the small sum of P155 borrowed by her from him during her lifetime, he had not given her or her children any portion of his property. Therefore, when the testator solemnly declared in clause 7 of his will that his children by his first wife had already received their corresponding share in his exclusive property in excess even of what would correspond to each of his children by his second wife, he could not have had Getulia or her children in mind, for it is indisputable that he had not given her any property whatsoever. He could not have had the P155 in mind (1) because it had not been given but only loaned to her, and (2) because it was so relatively trivial an amount that he could not have considered it equal to the share he left to each of his children by his second wife. His estate was assessed by the committee on appraisals at P18,000, with a claim against it of only P480.

In urging that the children of the first marriage be given only a share in the short legitime, the minority opinion says that the testator has made "a clear and explicit declaration in his will that the children of the second marriage shall be preferred." On the other hand, the majority opinion maintains that the testator omitted the children of the first marriage upon the erroneous belief on his part that he had given them a greater share in his property than that left to the children of the second marriage. From this the majority infer that the testator did not intend to discriminate against his children by his first marriage by giving them less than what he left to his children by his second marriage. The majority view assumes that the declarations of the testator in clauses 7 and 8 of his will, altho erroneous, were made in good faith. On the other hand, the minority view supposes that the testator intended to prefer his children by his second wife by leaving to them all his property so that the children by the first marriage are entitled only to their share in the short legitime which by law the decedent could not withhold from them. I think the minority view is untenable. In the absence of proof it cannot be presumed that the testator made the above-quoted declarations in bad faith — that he made them knowing that it was not true that he had given each of his surviving children by his first wife at least an equal if not a greater share in his inheritance than what he left to each of his children by his second wife. But if he had made those declarations in bad faith or as a subterfuge to deprive his children and grandchildren by his first marriage of their legal share in his inheritance, he could only have done so with the intention to frustrate their right. In that case the preterition would only assume a different form, voluntary instead of involuntary. But the result would be the same. As stated by the Supreme Court of Spain in its decision of June 17, 1908, the preterition of a forced heir "puede ser debida a ignorancia de que existiera, u olvido o proposito de burlar los derechos que la ley les reconoce, supuestos todos que desvirtuan la fuerza y eficacia moral de aquella voluntad y que justifican la anulacion de su expresion."cralaw virtua1aw library

BOCOBO, J., dissenting:chanrob1es virtual 1aw library

After a careful study of this case, I am constrained to dissent from the resolution of the majority denying the motion for reconsideration. I believe the judgment of the Court of Appeals should be affirmed because:chanrob1es virtual 1aw library

First, there has been no preterition under article 814, Civil Code.

Second, even supposing that there has been a preterition, the children of the second marriage are, however, entitled to the third for free disposal and to the third for mejora, in addition to their shares in the strict or short legitime.



There Is No Preterition

There is no preterition because the findings of both the Court of First Instance and of the Court of Appeals show that all the children of the first marriage have received, in property and in cash, a part of their short legitime. One of the requisites of preterition is that one or some of the heirs of the direct line be totally deprived of their legitime. As Manresa says (Vol. 6, pages 356-357, 4th Ed.) :jgc:chanrobles.com.ph

"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 la privacion completa o total, tacita; este, de la privacion parcial. Los efectos deben ser y son, como veremos, completamente distintos."cralaw virtua1aw library

As to property, Eleuterio received parcel No. 4 by way of donation. The trial court found that said parcel "appears to have been donated by Agripino Neri to his son Eleuterio, and which may be brought to the common mass." In the judgment of the Court of First Instance, it is ordered that said parcel No. 4 "should be brought to the common mass."cralaw virtua1aw library

Moreover, there is a large parcel of land containing 182.6373 hectares which, according to a finding of the Court of Appeals, "is still claimed to be the property not only of the children of the first marriage but also of those of the second marriage." The decision of the Court of Appeals makes these findings of fact:jgc:chanrobles.com.ph

"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." (Italics ours.)

It is true that according to the Court of Appeals, Getulia or her heirs did not receive any share of the property of her father, but the trial court found that Getulia was indebted to her father in the amount of P155 which debt is condoned in clause 8 of the will.

Furthermore, it is unquestioned that all the children of the first marriage (except Getulia whose debt of P155 has been condoned in the will) had certain parcels in their names for tax purposes. The fact that said parcels were either public land occupied and developed by the testator, or did not belong to him, cannot support the theory of preterition because the essence of preterition is the omission of any descendant or ascendant. If his right as an heir is recognized in anyway, there is no preterition, and his remedy is that provided in article 815, which is to have his share completed in case he received less than his legitime. In this case, the testator admits that his children of the first marriage are also his lawful heirs but states they have already received their respective shares.

As for the cash advances, the trial court found that of the six children, three — Agripino, Getulia and Celerina — were indebted to the testator in the amounts of P500, P155 and P120, respectively. With regard to the other children, Eleuterio, Agapita and Rosario, clause 8 of the will says:jgc:chanrobles.com.ph

"Eighth. I supplicated my children by my first wife that they should not contest this my last will, as they have already received their shares in my own property, much more than what I now give to the children by my second wife, excluding yet what I have given to them as aid during their financial troubles and what they have borrowed, which they have not yet paid me and which I now condone to them." (Italics ours.)

It will be noticed that the testator in the above clause speaks of two kinds of cash advances to his children: (1) aid from their father during their financial troubles; and (2) amounts borrowed by them from their father. In the absence of proof to the contrary, it may be presumed that the testator was referring to all his children of the first marriage when he stated: "excluding yet what I have given to them as aid during their financial troubles." It is hard to believe that during the whole lifetime of the testator, who was well-to-do, and lived to the advanced age of 86 years, any of his children of the first marriage did not receive even a small financial aid from the father.

All the children of the first marriage having received a part of their short legitime, either in property or cash or both, there is no preterition. The law applicable is not article 814 but articles 815 and 817, Civil Code, which provide:jgc:chanrobles.com.ph

"ART. 815. El heredero forzoso a quien el testador haya dejado por cualquier titulo menos de la legitima que le corresponda, podra pedir el complemento de la misma."cralaw virtua1aw library

"ART. 817. Las disposiciones testamentarias que menguen la legitima de los herederos forzosos, se reduciran, a peticion de estos, en lo que fueren inoficiosas o excesivas."cralaw virtua1aw library

These articles govern where the heir has received, either in the will or by donation inter vivos, a part of his legitime. Commenting on article 815, Manresa says (Vol. 6, page 366):jgc:chanrobles.com.ph

"El espiritu del articulo 815 resulta evidente: cuando el heredero forzoso no ha sido olvidado por el testador, cuando ha tomado algo de los bienes hereditarios, solo puede reclamar que se le complete su legitima. La letra del articulo, aunque aplicable especialmente a las disposiciones testamentarias, no repugna su extension a todo acto de disposicion del testador por titulo lucrativo. Y ademas, el parrafo 1.