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.
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