G.R. No.

L-47799 May 21, 1943

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI,
ET AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.

FACTS:

Agrapino Neri indicated in his will that he was leaving all of his properties to his
children by his second marriage with preterition of his children, Eleuterio,
Agripino, Agapita, Getulia, Rosario and Celerina from his first marriage.

The trial court annulled the institution of the heirs and declared total intestacy.
Therefore, the children by the second marriage filed a motion for reconsideration
on the grounds that there is no preterition as to the children of the first marriage,
since they have received their shares in the property left by the testator and that
assuming that there has been a preterition, the effect would not be the annulment
of the institution of heirs but simply the reduction of the bequest made to them.

ISSUE:
Whether or not there is preterition.

HELD:

YES, there is preterition. According to the court, none of the children by the first
marriage received their respective shares from the testator’s property. Even if
clause 8 of the will is invoked wherein testator stated that the children by his first
marriage had already received their shares in his property excluding what he had
given them as aid during their financial troubles and the money they had
borrowed from him, the Court can rely only on the findings that the property of
Agrapino has remained intact and that no portion has been given to the children
of the first marriage. Agrapino did not expressly disinherit his children by his first
marriage but did not leave anything to them. This fits the case of preterition
according to Article 814 of the Civil Code, which provides that the institution of
heirs shall be annulled and intestate succession should be declared open.

Separate Opinions
BOCOBO, J., dissenting:

There is no preterition because the findings of both the Court of First Instance
and of the Court of Appeals show that all the children of the first marriage have
received, in property and in cash, a part of their short legitime. One of the
requisites of preterition is that one or some of the heirs of the direct line be totally
deprived of their legitime.

The children of the first marriage not having been entirely forgotten, the will
should be respected and carried out, but the children of the first marriage should
have their respective shares in the strict legitime completed after taking into
account the amounts already received by them from their father.

But granting that there was a preterition because one or some of the children of
the first marriage never received, by donation inter vivos or by will, anything from
their father, it is clear from the will in question that the children of the second
marriage are entitled to the one-third for free disposal and the one-third
for mejora (in addition to their share in the short legitimate).