CONSTANTINO C. ACAIN, petitioner, vs. HON.

IN-
TERMEDIATE APPELLATE COURT (Third Special
Cases Division), VIRGINIA A. FERNANDEZ and
ROSA DIONGSON, respondents.
DECISION
PARAS, J : p

This is a petition for review on certiorari of the deci-

sion * 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 Spe-
cial Proceedings No. 591-A-CEB and its Resolution is-
sued on October 23, 1985 (Rollo, p. 72) denying re-
spondents' (petitioners herein) motion for reconsid-
eration.
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 Ap-
peals, (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 Proceed-
ings No. 591-A-CEB (Rollo, p. 29), on the premise
that Nemesio Acain died leaving a will in which peti-
tioner 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 objec-
tion 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, wid-
ower, of legal age and presently residing
at 357-C Sanciangko Street, Cebu City.
In case my brother Segundo Acain pre-
deceases 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 chil-
dren, namely: Anita, Constantino, Con-
cepcion, 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. LLphil

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 de-
nied by the trial judge.
After the denial of their subsequent motion for recon-
sideration in the lower court, respondents filed with
the Supreme Court a petition for certiorari and prohi-
bition with preliminary injunction which was subse-
quently 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 prelimi-
nary injunction is not the proper remedy
under the premises;

(B) The authority of the probate courts is limited

only to inquiring into the extrinsic valid-
ity 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 respond-
ents 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. llcd

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 be-

fore 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 be-
cause 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 478 [1982]). Insofar as the widow is con-
cerned, 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 ques-
tioned 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 can-
not be denied that she was totally omitted and pret-
erited in the will of the testator and that both adopted
child and the widow were deprived of at least their
legitimate. 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 annul-
ment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no
hubiese dispuesto en virtual de legado, mejora o
donacion" (Manresa, as cited in Nuguid v. Nuguid, su-
pra, 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
insofar 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 be-
cause 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, Ar-
ticle 854 of the Civil Code offers no leeway for infer-
ential 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 sis-
ters. 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 per-
son may be allowed to intervene in a probate pro-
ceeding 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 in-
terested 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 ex-
ecutor, 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 provi-
sion of a will or by operation of law. However, intes-
tacy having resulted from the preterition of respond-
ent 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. Cdpr

As a general rule certiorari cannot be a substitute for

appeal, except when the questioned order is an op-
pressive exercise of judicial authority (People v. Vil-
lanueva, 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 ap-
peal or some other plain, speedy and adequate rem-
edy in the course of law (D.D. Comendador Construc-
tion 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 dis-
missing 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 pre-
scribed by law. The intrinsic validity of the will nor-
mally 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]; Su-
milang v. Ramagosa, supra; Maninang v. Court of Ap-
peals, 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. Un-
der 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 (Nepo-
muceno v. Court of Appeals, supra). In Nuguid v. Nu-
guid 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 ques-
tion 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 re-
manded for probate of the will, nothing
will be gained. On the contrary, this liti-
gation 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 is-
sue 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 substanti-
ated by the evidence during the hearing held in con-
nection with said motion. The Court upheld the pro-
bate court's order of dismissal. LLpr

In Cayetano v. Leonidas, 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 de-
nied its probate outright. Where circumstances de-
mand that intrinsic validity of testamentary provi-
sions be passed upon even before the extrinsic valid-
ity 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 follow-
ing 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 dis-
miss are matters properly to be resolved after a hear-
ing on the issues in the course of the trial on the mer-
its of the case (Rollo, p. 32). A subsequent motion for
reconsideration was denied by the trial court on Feb-
ruary 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 pe-
titioner 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 va-
lidity of the testamentary provisions before the ex-
trinsic validity of the will was resolved (Cayetano v.
Leonidas, supra; Nuguid v. Nuguid, supra). The rem-
edies of certiorari and prohibition were properly
availed of by private respondents.
Thus, this Court ruled that where the grounds for dis-
missal 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, com-
mitted 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).prod

PREMISES CONSIDERED, the petition is hereby DE-

NIED 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, Sar-
miento and Cortes, JJ., concur.
Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that
preterition in this case was by mistake or inadvert-
ence.
To my mind, an important distinction has to be made
as to whether the omission of a forced heir in the Will
of a testator is by mistake or inadvertence, or volun-
tary or intentional. If by mistake or inadvertence,
there is true preterition and total intestacy results.
The reason for this is the "inability to determine how
the testator would have distributed his estate if none
of the heirs had been omitted or forgotten (An Outline
of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p.
54).
The requisites of preterition are:
"1. The heir omitted is a forced heir (in the di-
rect line);

"2. The omission is by mistake or thru an over-

sight;

"3. The omission is complete so that the forced

heir received nothing in the will." (III Pa-
dilla, Civil Code Annotated, 1973 Edition,
pp. 224-225) (Parenthetical addendum
supplied).

On the other hand, if the omission is intentional, the

effect would be a defective disinheritance covered by
Article 918 of the Civil Code in which case the institu-
tion of heir is not wholly void but only insofar as it
prejudices the legitime of the person disinherited.
Stated otherwise, the nullity is partial unlike in true
preterition where the nullity is total. LLjur

"Preterition is presumed to be only an involun-

tary omission; that is, that if the testator
had known of the existence of the com-
pulsory heir at the time of the execution
of the will, he would have instituted such
heir. On the other hand, if the testator
attempts to disinherit a compulsory heir,
the presumption of the law is that he
wants such heir to receive as little as
possible from his estate." (III Tolentino,
Civil Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake

or inadvertence in the omission of the adopted
daughter, hence, my concurrence in the result that
total intestacy ensued.
(Acain v. Intermediate Appellate Court, G.R. No.
|||

72706, [October 27, 1987], 239 PHIL 96-108)

INTESTATE ESTATE OF PETRA V. ROSALES.

IRENEA C. ROSALES, petitioner, vs. FORTUNATO
ROSALES, MAGNA ROSALES ACEBES,
MACIKEQUEROX ROSALES and ANTONIO
ROSALES, respondents.
Jose B. Echaves for petitioner.
Jose A. Binghay and Paul G. Gorres for respondents.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION;
INTESTATE SUCCESSION; INTESTATE OR
LEGAL HEIRS; CLASSIFICATION. — Intestate
or legal heirs are classified into two (2) groups,
namely, those who inherit by their own right,
and those who inherit by the right of
representation. Restated, an intestate heir can
only inherit either by his own right, as in the
order of intestate succession provided for in
the Civil Code, or by the right of representation
provided for in Article 981 of the same law.
2. ID.; ID.; ID.; DAUGHTER-IN-LAW,
NOT AN INTESTATE HEIR OF HER SPOUSE'S
PARENT. — There is no provision in the Civil
Code which states that a widow (surviving
spouse) is an intestate heir of her mother-in-
law. The entire Code is devoid of any provision
which entitles her to inherit from her mother-
in-law either by her own right or by the right
of representation. The provisions of the Code
which relate to the order of intestate
succession (Articles 978 to 1014) enumerate
with meticulous exactitude the intestate heirs
of a decedent, with the State as the final
intestate heir. The conspicuous absence of a
provision which makes a daughter-in-law an
intestate heir of the deceased all the more
confirms Our observation. If the legislature
intended to make the surviving spouse an
intestate heir of the parent-in-law, it would
have so provided in the Code.
3. ID.; ID.; WIDOW OR WIDOWER
MENTIONED IN ARTICLE 887 OF THE CIVIL
CODE REFERS TO SURVIVING SPOUSE. —
Petitioner argues that she is a compulsory heir
in accordance with the provisions of article 887
of the Civil Code. the aforesaid provision of law
refers to the estate of the deceased spouse in
which case the surviving spouse (widow or
widower) is a compulsory heir. It does not
apply to the estate of a parent-in-law.
4. ID.; ID.; ID.; SURVIVING SPOUSE
CONSIDERED A THIRD PARTY WITH RESPECT
TO ESTATE OF PARENT-IN-LAW. — Indeed,
the surviving spouse is considered a third
person as regards the estate of the parent-in-
law. We had occasion to make this observation
in Lachenal v. Salas, to wit: "We hold that the
title to the fishing boat should be determined
in Civil Case No., 3597 (not in the intestate
proceeding) because it affects the lessee
thereof, Lope L. Leoncio, the decedent's son-
in-law, who, although married to his daughter
or compulsory heir, is nevertheless a third
person with respect to his estate. . . . . "
(Emphasis supplied).
 5. ID.; ID.; ID.; RIGHT OF
REPRESENTATION; BLOOD RELATIONSHIP;
BASIS THEREOF. — Article 971 explicitly
declares that Macikequeroz Rosales is called to
succession by law because of his blood
relationship. He does not succeed his father,
Carterio Rosales (the person represented) who
predeceased his grandmother, Petra Rosales,
but the latter whom his father would have
succeeded. Petitioner cannot assert the same
right of representation as she has no filiation
by blood with her mother-in-law.
6. ID.; ID.; ID.; INCHOATE RIGHT TO
ESTATE EXTINGUISHED BY DEATH OF HEIR.
— Petitioner contends that at the time of the
death of her husband Corterio Rosales he had
an inchoate or contingent right to the
properties of Petra Rosales as compulsory
heirs. Be that as it may, said right of her
husband was extinguished by this death that
is why it is their son Macikequerox Rosales who
succeeded from Petra Rosales by right of
representation. He did not succeed from his
deceased father, Carterio Rosales.
DECISION
GANCAYCO, J : p

In this Petition for Review of two (2)

Orders of the Court of First Instance of Cebu
the question raised is whether the widow
whose husband predeceased his mother can
inherit from the latter, her mother-in-law.prLL

It appears from the record of the case

that on February 26, 1971, Mrs. Petra V.
Rosales, a resident of Cebu City, died
intestate. She was survived by her husband
Fortunato T. Rosales and their two (2) children
Magna Rosales Acebes and Antonio Rosales.
Another child, Carterio Rosales, predeceased
her, leaving behind a child, Macikequerox
Rosales, and his widow Irenea C. Rosales, the
herein petitioner. The estate of the deceased
has an estimated gross value of about Thirty
Thousand Pesos (P30,000.00).
On July 10, 1971, Magna Rosales Acebes
instituted the proceedings for the settlement
of the estate of the deceased in the Court of
First Instance of Cebu. The case was docketed
as Special Proceedings No. 3204-R.
Thereafter, the trial court appointed Magna
Rosales Acebes administratrix of the said
estate.
In the course of the intestate
proceedings, the trial court issued an Order
dated June 16, 1972 declaring the following
individuals the legal heirs of the deceased and
prescribing their respective share of the estate
—
Fortunato T. Rosales (husband) 1/4; Magna
R. Acebes (daughter), 1/4;
Macikequerox Rosales, 1/4; and
Antonio Rosales (son), 1/4.

This declaration was reiterated by the

trial court in its Order dated February 4, 1975.
These Orders notwithstanding, Irenea
Rosales insisted in getting a share of the estate
in her capacity as the surviving spouse of the
late Carterio Rosales, son of the deceased,
claiming that she is a compulsory heir of her
mother-in-law together with her son,
Macikequerox Rosales.
Thus, Irenea Rosales sought the
reconsideration of the aforementioned Orders.
The trial court denied her plea. Hence this
petition.
In sum, the petitioner poses two (2)
questions for Our resolution. First — is a widow
(surviving spouse) an intestate heir of her
mother-in-law? Second — are the Orders of
the trial court which excluded the widow from
getting a share of the estate in question final
as against the said widow?
 Our answer to the first question is in the
negative.
Intestate or legal heirs are classified into
two (2) groups, namely, those who inherit by
their own right, and those who inherit by the
right of representation. 1 Restated, an
intestate heir can only inherit either by his own
right, as in the order of intestate succession
provided for in the Civil Code, 2 or by the right
of representation provided for in Article 981 of
the same law. The relevant provisions of the
Civil Code are;.
"Art. 980. The children of the deceased shall
always inherit from him in their own
right, dividing the inheritance in equal
shares."

"Art. 981. Should children of the deceased and

descendants of other children who are
dead, survive, the former shall inherit in
their own right, and the latter by right of
representation."

"Art. 982. The grandchildren and other

descendants shall inherit by right of
representation, and if any one of them
should have died, leaving several heirs,
the portion pertaining to him shall be
 divided among the latter in equal
portions."

"Art. 999. When the widow or widower survives

with legitimate children or their
descendants and illegitimate children or
their descendants, whether legitimate or
illegitimate, such widow or widower shall
be entitled to the same share as that of
a legitimate child."

There is no provision in the Civil Code

which states that a widow (surviving spouse)
is an intestate heir of her mother-in-law. The
entire Code is devoid of any provision which
entitles her to inherit from her mother-in-law
either by her own right or by the right of
representation. The provisions of the Code
which relate to the order of intestate
succession (Articles 978 to 1014) enumerate
with meticulous exactitude the intestate heirs
of a decedent, with the State as the final
intestate heir. The conspicuous absence of a
provision which makes a daughter-in-law an
intestate heir of the deceased all the more
confirms Our observation. If the legislature
intended to make the surviving spouse an
 intestate heir of the parent-in-law, it would
have so provided in the Code. LLjur

Petitioner argues that she is a

compulsory heir in accordance with the
provisions of Article 887 of the Civil Code
which provides that:
"Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with

respect to their legitimate parents and
ascendants;

(2) In default of the foregoing, legitimate

parents and ascendants, with respect to
their legitimate children and
descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural

children by legal fiction;

(5) Other illegitimate children referred to in

article 287;
Compulsory heirs mentioned in Nos. 3, 4 and 5
are not excluded by those in Nos. 1 and
2; neither do they exclude one another.

In all cases of illegitimate children, their filiation

must be duly proved.

The father or mother of illegitimate children of

the three classes mentioned, shall
inherit from them in the manner and to
the extent established by this Code."

The aforesaid provision of law 3 refers to the

estate of the deceased spouse in which case
the surviving spouse (widow or widower) is a
compulsory heir. It does not apply to the
estate of a parent-in-law.
Indeed, the surviving spouse is
considered a third person as regards the estate
of the parent-in-law. We had occasion to make
this observation in Lachenal v. Salas, 4 to wit:
"We hold that the title to the fishing boat should
be determined in Civil Case No. 3597
(not in the intestate proceeding)
because it affects the lessee thereof,
Lope L. Leoncio, the decedent's son-in-
 law, who, although married to his
daughter or compulsory heir, is
nevertheless a third person with respect
to his estate. . . ." (Emphasis supplied).

By the same token, the provision of

Article 999 of the Civil Code aforecited does
not support petitioner's claim. A careful
examination of the said Article confirms that
the estate contemplated therein is the estate
of the deceased spouse. The estate which is
the subject matter of the intestate estate
proceedings in this case is that of the deceased
Petra V. Rosales, the mother-in-law of the
petitioner. It is from the estate of Petra V.
Rosales that Macikequerox Rosales draws a
share of the inheritance by the right of
representation as provided by Article 981 of
the Code. llcd

The essence and nature of the right of

representation is explained by Articles 970 and
971 of the Civil Code, viz —
"Art. 970. Representation is a right created by
fiction of law, by virtue of which the
representative is raised to the place and
the degree of the person represented,
and acquires the rights which the latter
would have if he were living or if he
could have inherited.
"Art. 971. The representative is called to the
succession by the law and not by the
person represented. The representative
does not succeed the person
represented but the one whom the
person represented would have
succeeded." (Emphasis supplied.)

Article 971 explicitly declares that

Macikequerox Rosales is called to succession
by law because of his blood relationship. He
does not succeed his father, Carterio Rosales
(the person represented) who predeceased his
grandmother, Petra Rosales, but the latter
whom his father would have succeeded.
Petitioner cannot assert the same right of
representation as she has no filiation by blood
with her mother-in-law.
Petitioner however contends that at the
time of the death of her husband Carterio
Rosales he had an inchoate or contingent right
to the properties of Petra Rosales as
compulsory heir. Be that as it may, said right
of her husband was extinguished by his death
that is why it is their son Macikequerox Rosales
who succeeded from Petra Rosales by right of
representation. He did not succeed from his
deceased father, Carterio Rosales.
 On the basis of the foregoing
observations and conclusions, We find it
unnecessary to pass upon the second question
posed by the petitioner.
Accordingly, it is Our considered opinion,
and We so hold, that a surviving spouse is not
an intestate heir of his or her parent-in-law.
WHEREFORE, in view of the foregoing,
the Petition is hereby DENIED for lack of merit,
with costs against the petitioner. Let this case
be remanded to the trial court for further
proceedings. LLjur

SO ORDERED.
Yap (Chairman), Narvasa, Melencio-
Herrera, Cruz, Feliciano and Sarmiento, JJ.,
concur.

(Intestate Estate of Rosales v. Rosales, G.R. No. L-

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40789, [February 27, 1987], 232 PHIL 73-80)