Reserva Troncal, Legitime Cases

CASE NO. 68 Neri v. Akutin 72 Phil 323; June 3, 1934

J. Moran:

FACTS:

AGRIPINO Neri died on December December 12, 1931. During his 1st marriage, he had six children: Agripino, Agapito,

Eleuterio, Rosario, Celerina and Getulia who predeceased him eight years ago and was survived by seven children. During his second marriage with Ignacia Akutin, he had five children.

His will was admitted for probate. probate. He willed that his children by the first marriage marriage shall have no longer any participation in his estate as they had already received received their shares during his his lifetime. TC found to the contrary, contrary, excluding Eleuterio. Eleuterio. Thus TC declared children by the 1 st and 2nd marriage as intestate heirs without prejudice to the ½ of the improvements introduced as conjugal which should belong to Ignacia. CA: modified; as to the the 2/3 which could could be freely disposed of.

HELD:

TC- affirmed.

The CA misapplied Art. 851. Thus, the testator expressly denied them any share but the denial was predicated not upon the desire to disinherit but upon a mistaken belief that they had already received their share.

Preterion 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, mentioned, they are neither instituted instituted as heirs nor are expressly disinherited. In this case, while they are mentioned in the will, will, they are not accorded any share, without expressly disinheriting disinheriting them. Also, there are no legacies or betterments as to fall to the exceptions.