CONSTANTINO C. ACAIN, PETITIONER, VS. 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-A-CEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents’ (petitioners herein)
motion for reconsideration.

The dispositive
portion of the questioned decision reads as follows:

“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-A-CEB.  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 in 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-A-CEB (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) submitted 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 predeceases me, all the money properties, lands,
houses there in Bantayan and here in Cebu City
which constitute my share shall be given by 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-A-CEB.

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 the
deceased and the latter’s widow Rosa Diongson Vda. de Acain) 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.  (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-A-CEB.

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).

Petitioner raises the
following issues (Memorandum for Petitioner, p. 4);

(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 ERIT 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 inviolable.

(F)   As an instituted heir, petitioner has the
legal interest and standing to file the petition in Sp. Proc. No. 591-A-CEB 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 preterited.

Article 854 of the Civil
Code provides:

“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 be 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 [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 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.  Hence, 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 including “la porción libre (que)no hubiese
dispuesto en virtual de legado,
mejora o donación” (Manresa, 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 in so far 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 in 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 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 (D.D. 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-CEB 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. Leonidas, 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 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 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-CEB 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. Leonidas, supra; Nuguid 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 v. 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.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr.,
Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, and Cortes, JJ., concur.

Herrera, J., see separate
opinion.

*
PENNED by Justice Jose A. R. Melo and concurred in by Justices Milagros A. German and Nathanael P. De Pano, Jr.

Clean
Clean

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