NON vs. CA

NON vs. CA

February 15, 2000

FACTS: 

            Petitioners contended that the late Nilo employed forgery and undue influence to coerce Julian to execute the deed of donation. Petitioner Rebecca averred that her brother Nilo employed fraud to procure her signature to the deed of extrajudicial settlement. She added that the exclusion of her retardate sister, Delia Viado, in the extrajudicial settlement, resulted in the latter's preterition that should warrant its annulment.

ISSUE:

            Was preterition present that would warrant annulment?

HELD:          

            When Virginia died intestate, her part of the conjugal property, the Isarog property included, was transmitted to her heirs — her husband Julian and their children. The inheritance, which vested from the moment of death of the decedent, remained under a co-ownership regime among the heirs until partition.

      Petitioners are vague on how and in what manner fraud, forgery and undue influence occurred.

      The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of extrajudicial settlement verily has had the effect of preterition. This kind of preterition, however, in the absence of proof of fraud and bad faith, does not justify a collateral attack on the TCT issued. The relief instead rests on Article 1104 of the Civil Code to the effect that where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. Again, the appellate court has thus acted properly in ordering the remand of the case for further proceedings to make the proper valuation of the Isarog property and ascertainment of the amount due petitioner Delia Viado.