Acain vs. Intermediate Appellate Court
Acain vs. Intermediate Appellate Court
Intermediate Appellate Court provisions which do not result in intestacy are the legacies and devises made
in the will for they should stand valid and respected, except in so far as the
legitimes are concerned.
No. L-72706. October 27,1987.* Same; Same; Same; Same; Institution of petitioner and his brothers
CONSTANTINO C. ACAIN, petitioner, vs. HON. INTERMEDIATE and sisters to the entire inheritance totally abrogates the will.—The universal
APPELLATE COURT (Third Special Cases Division), VIRGINIA A. institution of petitioner together with his brothers and sisters to the entire
FERNANDEZ and ROSA DIONGSON, respondents. inheritance of the testator results in totally abrogating the will because the
Civil Law; Succession; Preterition, meaning of; Article 854 of the Civil nullification of such institution of universal heirs—without any other
Code not applicable to the surviving spouse; Adoption makes the adopted testamentary disposition in the will—amounts to a declaration that nothing at
the legal heir of the adopter.—Preterition consists in the omission in the all was written. Carefully worded and in clear terms, Article 854 of the Civil
testator’s will of the forced heirs or anyone of them either because they are Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra.
not mentioned therein, or, though mentioned, they are neither instituted as No legacies nor devises having been provided in the will the whole property
heirs nor are expressly disinherited of the deceased has been left by universal title to petitioner and his brothers
and sisters. The effect of annulling the
______________ 102
* 102 SUPREME COURT REPORTS ANNOTATED
EN BANC.
101 Acain vs. Intermediate Appellate Court
institution of heirs will be, necessarily, the opening of a total intestacy
VOL. 155, OCTOBER 27, 1987 101
(Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises
Acain vs. Intermediate Appellate Court must, as already stated above, be respected.
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, Same; Same; Probate of a will; Petitioner has no legal standing to
114 SCRA [1982]. Insofar as the widow is concerned, Article 854 of the Civil petition for the probate of the will of the deceased, hence Special Proceeding
Code may not apply as she does not ascend or descend from the testator, No. 591-A-CEB must be dismissed.—In order that a person may be allowed
although she is a compulsory heir. Stated otherwise, even if the surviving to intervene in a probate proceeding he must have an interest in the estate,
spouse is a compulsory heir, there is no preterition even if she is omitted or in the will, or in the property to be affected by it either as executor or as a
from the inheritance, for she is not in the direct line. (Art. 854, Civil Code) claimant of the estate and an interested party is one who would be benefited
However, the same thing cannot be said of the other respondent Virginia A. by the estate such as an heir or one who has a claim against the estate like a
Fernandez, whose legal adoption by the testator has not been questioned by creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
petitioner (Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. appointed executor, neither a devisee or a legatee there being no mention in
No. 603, known as the Child and Youth Welfare Code, adoption gives to the the testamentary disposition of any gift of an individual item of personal or
adopted person the same rights and duties as if he were a legitimate child of real property he is called upon to receive (Article 782, Civil Code). At the
the adopter and makes the adopted person a legal heir of the adopter. It outset, he appears to have an interest in the will as an heir, defined under
cannot be denied that she was totally omitted and preterited in the will of the Article 782 of the Civil Code as a person called to the succession either by
testator and that both adopted child and the widow were deprived of at least the provision of a will or by operation of law. However, intestacy having
their legitime. Neither can it be denied that they were not expressly resulted from the preterition of respondent adopted child and the universal
disinherited. Hence, this is a clear case of preterition of the legally adopted institution of heirs, petitioner is in effect not an heir of the testator. He has no
child. legal standing to petition for the probate of the will left by the deceased and
Same; Same; Same; Preterition annuls the institution of an heir and Special Proceedings No. 591-A-CEB must be dismissed.
creates intestate succession but legacies and devises are valid and Same; Same; Same; Rule that probate Court’s authority is limited only
respected insofar as they are not inofficious.—Preterition annuls the to the extrinsic validity of the will, not inflexible and absolute; Court may pass
institution of an heir and annulment throws open to intestate succession the upon the intrinsic validity of the will under exceptional circumstances.—
entire inheritance including “la portion libre (que) no hubiese dispuesto en Special Proceedings No. 591-CEB is for the probate of a will. As stated by
virtual de legado, mejora o donation” (Manresa, as cited in Nuguid v. respondent Court, the general rule is that the probate court’s authority is
Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only
Page 1 of 6
limited only to the extrinsic validity of the will, the due execution thereof, the Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper
testator’s testamentary capacity and the compliance with the requisites or remedies to correct a grave abuse of discretion of the trial court in not
solemnities prescribed by law. The intrinsic validity of the will normally come dismissing a case where the dismissal is founded on valid grounds (Vda. de
only after the Court has declared that the will has been duly authenticated. Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Said court at this stage of the proceedings is not called upon to rule on the Same; Same; Certiorari may be entertained where appeal will not
intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 afford a speedy and adequate relief.—Thus, this Court ruled that where the
SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of grounds for dismissal are indubitable, the defendants had the right to resort
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA 522 to the more speedy, and adequate remedies of cer-
[1984]); and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The 104
rule, however, is not inflexible and absolute. Under exceptional 104 SUPREME COURT REPORTS ANNOTATED
circumstances, the probate court is not powerless to do what the situa-
103 Acain vs. Intermediate Appellate Court
tiorari and prohibition to correct a grave abuse of discretion, amounting
VOL. 155, OCTOBER 27, 1987 103 to lack of jurisdiction, committed by the trial court in not dismissing the case,
Acain vs. Intermediate Appellate Court (Vda. de Bacang v. Court of Appeals, supra) and even assuming the
tion constrains it to do and pass upon certain provisions of the will existence of the remedy of appeal, the Court harkens to the rule that in the
(Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the broader interests of justice, a petition for certiorari may be entertained,
oppositors to the probate moved to dismiss on the ground of absolute particularly where appeal would not afford speedy and adequate relief.
preterition. The probate court acting on the motion held that the will in
question was a complete nullity and dismissed the petition without costs. On PETITION for certiorari to review the decision of the Court of Appeals.
appeal the Supreme Court upheld the decision of the probate court, induced Melo, J.
by practical considerations.
Same; Same; Same; Same; Trial Court could have denied outright the The facts are stated in the opinion of the Court.
probate of the will or have passed upon its intrinsic validity where on its face
it appears to be intrinsically void.—For private respondents to have tolerated PARAS, J.:
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 This is a petition for review on certiorari of the decision ** of respondent Court
were instituted as universal heirs coupled with the obvious fact that one of of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985
the private respondents had been preterited would have been an exercise in (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings
futility. It would have meant a waste of time, effort, expense, plus added No. 591-A-CEB and its Resolution issued on October 23, 1985 (Rollo, p. 72)
futility. The trial court could have denied its probate outright or could have denying respondents’ (petitioners herein) motion for reconsideration.
passed upon the intrinsic validity of the testamentary provisions before the The dispositive portion of the questioned decision reads as follows:
extrinsic validity of the will was resolved (Cayetano v. “WHEREFORE, the petition is hereby granted and respondent Regional Trial
Leonidas, supra; Nuguid v. Nuguid, supra). The remedies of certiorari and Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby
prohibition were properly availed of by private respondents. ordered to dismiss the petition in Special Proceedings No. 591-A-CEB. No
Certiorari; Remedy of Certiorari cannot be a substitute for appeal, special pronouncement is made as to costs.”
exception.—As a general rule certiorari cannot be a substitute for appeal, The antecedents of the case, based on the summary of the Intermediate
except when the questioned order is an oppressive exercise of judicial Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. On May 29, 1984 petitioner Constantino Acain filed in the Regional Trial
Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 Court of Cebu City Branch XIII, a petition for the probate of the will of the late
SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is Nemesio Acain and for the issuance to the same petitioner of letters
axiomatic that the remedies of certiorari and prohibition are not available testamentary,
where the petitioner has the remedy of appeal or some other plain, speedy
and adequate remedy in the course of law (D.D. Comendador Construction ________________
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**
Penned by Justice Jose A. R. Melo and concurred in by Justices Respondent Intermediate Appellate Court granted private respondents’
Milagros A. German and Nathanael P. De Pano, Jr. petition and ordered the trial court to dismiss the petition for the probate of
105 the will of Nemesio Acain in Special Proceedings No. 591-A-CEB.
VOL. 155, OCTOBER 27, 1987 105 His motion for reconsideration having been denied, petitioner filed this
present petition for the review of respondent Court’s decision on December
Acain vs. Intermediate Appellate Court. 18, 1985 (Rollo, p. 6). Respondents’ Comment was filed on June 6, 1986
docketed as Special Proceedings No. 591-A-CEB (Rollo, p. 29), on the (Rollo, p. 146).
premise that Nemesio Acain died leaving a will in which petitioner and his On August 11, 1986 the Court resolved to give due course to the petition
brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina (Rollo, p. 153). Respondents’ Memorandum was filed on September 22,
and Laura were instituted as heirs. The will allegedly executed by Nemesio 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September
Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a 29, 1986 (Rollo, p. 177).
translation in English (Rollo, p. 31) submitted by petitioner without objection Petitioner raises the following issues (Memorandum for Petitioner, p. 4):
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 1. (A)The petition filed in AC-G.R. No. 05744 for certiorari and
testator’s property, the will provided: prohibition with preliminary injunction is not the proper remedy
“THIRD: All my shares that I may receive from our properties, house, lands under the premises;
and money which I earned jointly with my wife Rosa Diongson shall all be 2. (B)The authority of the probate courts is limited only to inquiring into
given by me to my brother SEGUNDO ACAIN, Filipino, widower, of legal age the extrinsic validity of the will sought to be probated and it cannot
and presently residing at 357-C Sanciangko Street, Cebu City. In case my pass upon the intrinsic validity thereof before it is admitted to
brother Segundo Acain predeceases me, all the money properties, lands, probate;
houses there in Bantayan and here in Cebu City which constitute my share 3. (C)The will of Nemesio Acain is valid and must therefore, be
shall be given by me to his children, namely: Anita, Constantino, Concepcion, admitted to probate. The preterition mentioned in Article 854 of the
Quirina, Laura, Flores, Antonio and Jose, all surnamed Acain.” New Civil Code refers to preterition of “compulsory heirs in the
Obviously, Segundo pre-deceased Nemesio. Thus, it is the children of direct line,” and does not apply to private respondents who are not
Segundo who are claiming to be heirs, with Constantino as the petitioner in compulsory heirs in the direct line; their omission shall not annul the
Special Proceedings No. 591-A-CEB. institution of heirs;
After the petition was set for hearing in the lower court on June 25, 1984 4. (D)DICAT TESTATOR ET ERIT LEX. What the testator says will be
the oppositors (respondents herein Virginia A. Fernandez, a legally adopted the law;
daughter of the deceased and the latter’s widow Rosa Diongson Vda. de 5. (E)There may be nothing in Article 854 of the New Civil Code, that
Acain) filed a motion to dismiss on the following grounds: (1) the petitioner suggests that mere institution of a universal heir in the will would
has no legal capacity to institute these proceedings; (2) he is merely a give the heir so instituted a share in the inheritance but there is a
universal heir and (3) the widow and the adopted daughter have been definite distinct intention of the testator in the case at bar, explicitly
preterited. (Rollo, p. 158). Said motion was denied by the trial judge. expressed in his will. This is what matters and should be inviolable.
After the denial of their subsequent motion for reconsideration in the
lower court, respondents filed with the Supreme Court a petition for certiorari 107
and prohibition with preliminary injunction which was subsequently referred VOL. 155, OCTOBER 27, 1987 107
to the In- Acain vs. Intermediate Appellate Court
106
106 SUPREME COURT REPORTS ANNOTATED 1. (F)As an instituted heir, petitioner has the legal interest and standing
Acain vs. Intermediate Appellate Court to file the petition in Sp. Proc. No. 591-A-CEB for probate of the will
termediate Appellate Court by Resolution of the Court dated March 11, 1985 of Nemesio Acain; and
(Memorandum for Petitioner, p. 3; Rollo, p. 159). 2. (G)Article 854 of the New Civil Code is a bill of attainder. It is
therefore unconstitutional and ineffectual.
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The pivotal issue in this case is whether or not private respondents have the Civil Code offers no leeway for inferential interpretation (Nuguid v.
been preterited. Article 854 of the Civil Code provides: Nuguid), supra. No legacies nor devises having been provided in the will the
“Art. 854. The preterition or omission of one, some, or all of the compulsory whole property of the deceased has been left by universal title to petitioner
heirs in the direct line, whether living at the time of the execution of the will or and his brothers and sisters. The effect of annulling the institution of heirs will
born after the death of the testator, shall annul the institution of heir; but the be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil.
devisees and legacies shall be valid insofar as they are not inofficious. 185 [1943]) except that proper legacies and devises must, as already stated
If the omitted compulsory heirs should die before the testator, the above, be respected.
institution shall be effectual, without prejudice to the right of representation.” We now deal with another matter. In order that a person may be allowed
Preterition consists in the omission in the testator’s will of the forced heirs or to intervene in a probate proceeding he must have an interest in the estate,
anyone of them either because they are not mentioned therein, or, though or in the will, or in the property to be affected by it either as executor or as a
mentioned, they are neither instituted as heirs nor are expressly disinherited claimant of the estate and an interested party is one who would be benefited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 by the estate such as an heir or one who has a claim against the estate like a
SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
Code may not apply as she does not ascend or descend from the testator, appointed executor, neither a devisee or a legatee there being no mention in
although she is a compulsory heir. Stated otherwise, even if the surviving the testamentary disposition of any gift of an individual item of personal or
spouse is a compulsory heir, there is no preterition even if she is omitted real property he is called upon to receive (Article 782, Civil Code). At the
from the inheritance, for she is not in the direct line. (Art. 854, Civil Code) outset, he appears to have an interest in the will
However, the same thing cannot be said of the other respondent Virginia A. 109
Fernandez, whose legal adoption by the testator has not been questioned by VOL. 155, OCTOBER 27, 1987 109
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 Acain vs. Intermediate Appellate Court
adopted person the same rights and duties as if he were a legitimate child of as an heir, defined under Article 782 of the Civil Code as a person called to
the adopter and makes the adopted person a legal heir of the adopter. It the succession either by the provision of a will or by operation of law.
cannot be denied that she was totally omitted and preterited in the will of the However, intestacy having resulted from the preterition of respondent
testator and that both adopted child and the widow were deprived of at adopted child and the universal institution of heirs, petitioner is in effect not
108 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
108 SUPREME COURT REPORTS ANNOTATED be dismissed.
Acain vs. Intermediate Appellate Court As a general rule certiorari cannot be a substitute for appeal, except
least their legitime. Neither can it be denied that they were not expressly when the questioned order is an oppressive exercise of judicial authority
disinherited. Hence, this is a clear case of preterition of the legally adopted (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v.
child. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128
Preterition annuls the institution of an heir and annulment throws open to SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is
intestate succession the entire inheritance including “la portion libre (que) no axiomatic that the remedies of certiorari and prohibition are not available
hubiese dispuesto en virtual de legado, mejora o donation” (Manresa, as where the petitioner has the remedy of appeal or some other plain, speedy
cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA and adequate remedy in the course of law (D.D. Comendador Construction
[1982]). The only provisions which do not result in intestacy are the legacies Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper
and devises made in the will for they should stand valid and respected, remedies to correct a grave abuse of discretion of the trial court in not
except insofar as the legitimes are concerned. dismissing a case where the dismissal is founded on valid grounds (Vda. de
The universal institution of petitioner together with his brothers and sisters Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
to the entire inheritance of the testator results in totally abrogating the will Special Proceedings No. 591-CEB is for the probate of a will. As stated
because the nullification of such institution of universal heirs—without any by respondent Court, the general rule is that the probate court’s authority is
other testamentary disposition in the will—amounts to a declaration that limited only to the extrinsic validity of the will, the due execution thereof, the
nothing at all was written. Carefully worded and in clear terms, Article 854 of testator’s testamentary capacity and the compliance with the requisites or
Page 4 of 6
solemnities prescribed by law. The intrinsic validity of the will normally comes on the following grounds: (1) petitioner has no legal capacity to institute the
only after the Court has declared that the will has been duly authenticated. proceedings; (2) he is merely a universal heir; and (3) the widow and the
Said court at this stage of the proceedings is not called upon to rule on the adopted
intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 111
SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of VOL. 155, OCTOBER 27, 1987 111
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA
522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). Acain vs. Intermediate Appellate Court
The rule, however, is not inflexible and absolute. Under exceptional daughter have been preterited (Rollo, p. 158). It was denied by the trial court
circumstances, the probate court is not powerless to do what the situation in an order dated January 21, 1985 for the reason that “the grounds for the
constrains it to do and pass upon certain motion to dismiss are matters properly to be resolved after a hearing on the
110 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
110 SUPREME COURT REPORTS ANNOTATED February 15, 1985 (Rollo, p. 109).
Acain vs. Intermediate Appellate Court For private respondents to have tolerated the probate of the will and
provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. allowed the case to progress when on its face the will appears to be
Nuguid the oppositors to the probate moved to dismiss on the ground of intrinsically void as petitioner and his brothers and sisters were instituted as
absolute preterition. The probate court acting on the motion held that the will universal heirs coupled with the obvious fact that one of the private
in question was a complete nullity and dismissed the petition without costs. respondents had been preterited would have been an exercise in futility. It
On appeal the Supreme Court upheld the decision of the probate court, would have meant a waste of time, effort, expense, plus added futility. The
induced by practical considerations. The Court said: trial court could have denied its probate outright or could have passed upon
“We pause to reflect. If the case were to be remanded for probate of the will, the intrinsic validity of the testamen-tary provisions before the extrinsic
nothing will be gained. On the contrary, this litigation will be protracted. And validity of the will was resolved (Cayetano v. Leonidas, supra; Nuguid v.
for aught that appears in the record, in the event of probate or if the court Nuguid, supra). The remedies of certiorari and prohibition were properly
rejects the will, probability exists that the case will come up once again availed of by private respondents.
before us on the same issue of the intrinsic validity or nullity of the will. Thus, this Court ruled that where the grounds for dismissal are
Result: waste of time, effort, expense, plus added anxiety. These are the indubitable, the defendants had the right to resort to the more speedy, and
practical considerations that induce us to a belief that we might as well meet adequate remedies of certiorari and prohibition to correct a grave abuse of
head-on the issue of the validity of the provisions of the will in question. After discretion, amounting to lack of jurisdiction, committed by the trial court in not
all there exists a justiciable controversy crying for solution.” dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the assuming the existence of the remedy of appeal, the Court harkens to the
petition by the surviving spouse was grounded on petitioner’s lack of legal rule that in the broader interests of justice, a petition for certiorari may be
capacity to institute the proceedings which was fully substantiated by the entertained, particularly where appeal would not afford speedy and adequate
evidence during the hearing held in connection with said motion. The Court relief. (Maninang v. Court of Appeals, supra).
upheld the probate court’s order of dismissal. PREMISES CONSIDERED, the petition is her eby DENIED for lack of
In Cayetano v. Leonidas, supra one of the issues raised in the motion to merit and the questioned decision of respondent Court of Appeals
dismiss the petition deals with the validity of the provisions of the will. promulgated on August 30, 1985 and its Resolution dated October 23, 1985
Respondent Judge allowed the probate of the will. The Court held that as on are hereby AFFIRMED.
its face the will appeared to have preterited the petitioner the respondent SO ORDERED.
judge should have denied its probate outright. Where circumstances demand Teehankee (C.J.), Yap, Fernan, Narvasa, Gutierrez, Jr.,
that intrinsic validity of testamentary provisions be passed upon even before 112
the extrinsic validity of the will is resolved, the probate court should meet the 112 SUPREME COURT REPORTS ANNOTATED
issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the Acain vs. Intermediate Appellate Court
petition in Sp. Proceedings No. 591-CEB of the Regional Trial Court of Cebu Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes,
JJ., concur.
Page 5 of 6
Melencio-Herrera, J., see separate opinion. to take effect after his death and this deed is neither a will nor a donation.
(Mang-oy vs. Court of Appeals, 144 SCRA 33.)
MELENCIO-HERRERA, J., concurring in the result: Property donated inter-vivos is subject to collation after donor’s death,
whether the donation was made to a compulsory or a stranger. (Vda. de
I concur in the result on the basic proposition that preterition in this case was Tupas vs. RTC of Negros Occidental, 144 SCRA 622.)
by mistake or inadvertence.
To my mind, an important distinction has to be made as to whether the ——o0o——
omission of a forced heir in the Will of a testator is by mistake or
inadvertence, or voluntary or intentional If by mistake or inadvertence, there
is true preterition and total intestacy results. The reason for this is the
“inability to determine how the testator would have distributed his estate if
none of the heirs had been omitted or forgotten (An Outline of Civil Law,
J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
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