CONSTANTINO C. ACAIN vs. INTERMEDIATE APPELLATE COURT

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

RATIO: 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. Also, 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.

FACTS: Nemesio Herrera died with a will. His nephew Constantino Acain, petitioner herein, the son of his brother Segundo Acain, filed a petition for the probate of Nemesio’s will. Constantino avers that he has title to the will of Nemesio, pursuant to the provision in the will stating that in case his brother Segundo Acain pre-deceased him, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute his share shall be given to his brother’s children, one of them being Constantino. 

The private respondents, Nemesio’s widow Rosa Diongson and their adopted daughter, Virginia Fernandez filed a Motion to Dismiss the petition before the probate court, averring: 1) that the will should be void, having preterited the private respondents, Nemesio’s compulsory heirs and 2) that Constantino does not have a legal capacity to petition the court for probate of the will, not being a validly instituted heir. Petitioner never questioned the validity of Virginia’s adoption.

CFI: Denied the Motion to Dismiss and proceeded with the probate proceedings.

IAC: Reversed the CFI and declared nullity of said will due to preterition of the private respondents.

Hence, this Petition for Review. 

ISSUE: Whether or not the will should be avoided due to preterition.

HELD: Yes. It should be avoided but only due to the preterition of the adopted daughter. 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 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. 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 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.