LAW ON SUCCESSION | REYES VS. BARRETTO, G.R. NO. L-17818, JANUARY 20, 1967

REYES VS. BARRETTO,

G.R. NO. L-17818, JANUARY 20, 1967

 

TOPIC/DOCTRINE

The legal precept (Article 1081) does not speak of children, or descendants, but of heirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament, for B.B. was at a liberty to assign the free portion of his estate to whomsoever he chose.

 

FACTS

Article 1081 of the Civil Code of 1889 (then in force) provided that "a partition in which a person was believed to be an heir without being so, has been included, shall be null and void." Based on this Article, the lower court declared the project of partition submitted in the proceedings for the settlement of the estate of B.B. to be null and void ab initio because the distributee, S.B., was not a daughter of the decedent.

 

ISSUE

Whether the partition is null and void.

 

RULING

No.

The court ruled that Article 1081 of the old Civil Code has been misapplied to the present case by the lower court. S.B. had been instituted heir in the late decedent’s last will and testament together with M.B., decedent’s daughter; hence, the partition had between them could not be one such had with a party who was believed to be an heir without really being one, and was not null and void under said article. The legal precept (Article 1081) does not speak of children, or descendants, but of heirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament, for B.B. was at a liberty to assign the free portion of his estate to whomsoever he chose. While the share (1/2) assigned to S.B. impinged on the legitime of M.B., S. B. did not for that reason cease to be a testamentary heir of B.B. Nor does the fact that M.B. was allotted in her father’s will a share smaller than her legitime invalidate the institution of S.B. as heir, since there was here no preterition, or total omission of a forced heir.







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