CONSTANTINO C. ACAIN VS. HON. INTERMEDIATE APPELLATE COURT

G.R. No. 72706, October 27, 1987

CONSTANTINO C. ACAIN VS. HON. INTERMEDIATE APPELLATE COURT (THIRD SPECIAL CASES DIVISION), VIRGINIA A. FERNANDEZ AND ROSA DIONGSON

FACTS: Petitioner Constantino Acain filed a petition for the probate of the will of the late Nemesio Acain, 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. On one of the disposition of the testator's property, the will provided that all his shares that he may receive from their properties, house, lands and money which earned jointly with wife Rosa Diongson shall all be given to his brother SEGUNDO ACAIN. The latter predeceased the testator, thus, the children of Segundo are claiming from the estate. It must be noted that the widow and the adopted daughter of the testator have been excluded in the will. 

ISSUE: Whether or not private respondents have been preterited.

RULING: 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. 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. 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. 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. Hence, this is a clear case of preterition of the legally adopted child.