G.R. No. 72706 October 27, 1987 Constantino C. ACAIN, Petitioner, Hon. Intermediate Appellate Court (Third Special Cases Division), Virginia A. Fernandez and Rosa DIONGSON, Respondents
G.R. No. 72706 October 27, 1987 Constantino C. ACAIN, Petitioner, Hon. Intermediate Appellate Court (Third Special Cases Division), Virginia A. Fernandez and Rosa DIONGSON, Respondents
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744
promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and
its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.
WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial
Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591
ACEB No special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-
109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the
probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as
Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner
and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will
allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English
(Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial
rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the
disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly
with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of
legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-
deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute
my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores,
Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as
the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A.
Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to
dismiss on the following grounds for 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 pretirited. (Rollo, p. 158). Said motion was denied by the
trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a
petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition
for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's
decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed
on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the
proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to
be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in
Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not
apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal
heir in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention
of the testator in the case at bar, explicitly expressed in his will. This is what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591
ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
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 devisees and legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice
to the right of representation.
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 (Nuguid v. Nuguid, 17
SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the
Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated
otherwise, 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. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9).
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, 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 has 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. Hence, this is a clear
case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including " la
porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). 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. Carefully worded and in clear terms, Article 854
of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters.
The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185
[1943]) except that proper legacies and devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an
interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an
interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a
creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). 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 (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article
782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. 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 and Special
Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j
judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan
Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the
remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy
and adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They
are, however, proper remedies to correct a grave abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the
probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary
capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is
not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966];
Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522
[1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what
the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid
v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the
motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme
Court upheld the decision of the probate court, induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if
the court rejects the will, probability exists that the case will come up once again before us on the same issue of
the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity
of the provisions of the will in question. After all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on
petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing
held in connection with said motion. The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the
provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to
have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that
intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate
court should meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional
Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a
universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court
in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved
after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for
reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will
appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the
obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant
a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed
upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v.
Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private
respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more
speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even
assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of
Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of
Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.