ACAIN vs. IAC

ACAIN vs. IAC

October 27, 1987

FACTS: 

            Constantino filed a petition for the probate of the will of the late Nemesio.  The will provided that all his shares from properties he earned with his wife shall be given to his brother Segundo (father of Constantino).  In case Segundo dies, all such property shall be given to Segundo’s children.  Segundo pre-deceased Nemesio.

            The oppositors Virginia, a legally adopted daughter of the deceased, and the latter's widow Rosa filed a motion to dismiss on the following grounds:

(1) the petitioner has no legal capacity to institute these proceedings;

(2) he is merely a universal heir and

(3) the widow and the adopted daughter have been preterited.

ISSUE:

      Was there preterition?

HELD: 

            Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited.      Insofar as the widow is concerned, Article 854 may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line.

            The same thing cannot be said of the other respondent Virginia, whose legal adoption by the testator has not been questioned by petitioner. Adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. This is a clear case of preterition of the legally adopted child.

            Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance.  The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.       

            The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs - without any other testamentary disposition in the will - amounts to a declaration that nothing at all was written.

            In order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it.  Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive.  At the outset, he appears to have an interest in the will as an heir.  However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased.