Supreme Court of the Philippines

122 Phil. 319

G.R. No. L-19382, August 31, 1965

IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELODIA
FERRARIS. FILOMENA ABELLANA DE BACAYO, PETITIONER AND
APPELLANT, VS. GAUDENCIA FERRARIS DE BORROMEO, CATALINA
FERRARIS DE VILLEGAS, JUANITO FERRARIS AND CONCHITA
FERRARIS, OPPOSITORS AND APPELLEES.

DECISION

REYES, J.B.L., J.:

This is a pauper's appeal, directly brought to this Court on points of law, from a
resolution, dated September 20, 1961, excluding petitioner-appellant herein,
Filomena Abellana de Bacayo, as heir in the summary settlement of the estate of
Melodia Ferraris, Special Proceeding No. 2177-R of the Court of First Instance
of Cebu, Third Branch, as well as from the order, dated October 16, 1961,
denying a motion to reconsider said resolution.

The facts of this case are not disputed by the parties.

Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to
Intramuros, Manila. She was known to have resided there continuously until
1944. Thereafter, up to the filing on December 22, 1960 of the petition for the
summary settlement of her estate, she has not been heard of and her
whereabouts are still unknown. More than ten (10) years having elapsed since
the last time she was known to be alive, she was declared presumptively dead for
purposes of opening her succession and distributing her estate among her heirs.

Melodia Ferraris left properties in Cebu City, consisting of one third (1/3) share
in the estate of her aunt, Rosa Ferraris, valued at P6,000.00, more or less, and
which was adjudicated to her in Special Proceeding No. 13-V of the same court.
The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or
spouse, but was survived only by collateral relatives, namely, Filomena Abeiiana
de Bacayo, an aunt, and half-sister of decedent's father, Anacleto Ferraris; and
by Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris, her nieces
and nephew, who were the children of Melodia's only brother of full blood,
Arturo Ferraris, who pre-deceased her (the decedent). These two classes of heirs
claim to be the nearest intestate heirs and seek to participate in the estate of said
Melodia Ferraris.

The following diagram will help illustrate the degree of relationship of the
contending parties to said Melodia Ferraris:

(see Philippine Report Volume 122 page 321)

The sole issue to be resolved in this case is: Who should inherit the intestate
estate of a deceased person when he or she is survived only by collateral
relatives, to wit: an aunt and the children of a brother who predeceased him or
her? Otherwise, will the aunt concur with the children of the decedent's brother
in the inheritance or will the former be excluded by the latter?

The trial court ruled that the oppositors-appellees, as children of the only
predeceased brother of the decedent, exclude the aunt (petitioner-appellant) of
the same decedent, reasoning out that the former are nearer in degree (two
degrees) than the latter since nieces and nephew succeed by right of
representation, while petitioner-appellant is three degrees distant from the
decedent, and that other collateral relatives are excluded by brothers or sisters,
or children of brothers or sisters of the decedent in accordance with article 1009
of the New Civil Code.

Against the above ruling, petitioner-appellant contends in the present appeal

that she is of the same or equal degree of relationship as the oppositors-
appellees, three degrees removed from the decedent; and that under article 975
of the New Civil Code no right or representation could take place when the
nieces and nephew of the decedent do not concur with an uncle or aunt, as in
the case at bar, but rather the former succeed in their own right.

We agree with appellants that as an aunt of the deceased, she is as far distant as
the nephews from the decedent (three degrees) since in the collateral line to
which both kinds of relatives belong degrees are counted by first ascending to
the common ancestor and then descending to the heir (Civil Code, Art. 966).
Appellant is likewise right in her contention that nephews and nieces alone do
not inherit by right of representation (i.e., per stirpes) unless concurring with
brothers or sisters of the deceased, as provided expressly by Article 975:
"ART. 975. When children of one or more brothers or sisters of the deceased
survive, they shall inherit from the latter by representation, if they survive with
their uncles or aunts. But if they alone survive, they shall inherit in equal
portions."
Nevertheless, the trial court was correct when it held that, in case of intestacy,
nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles,
first cousins, etc.) from the succession. This is readily apparent from articles
1001, 1004, 1005, and 1009 of the Civil Code of the Philippines, that provided
as follows:
"ART. 1001. Should brothers and sisters or their children survive with the
widow or widower, the latters shall be entitled to one-half of the inheritance and
the brothers and sisters or their children to the other half."

"ART. 1004. Should the only survivors be, brothers and sisters of the full blood,
they shall inherit in equal shares."

"ART. 1005. Should brothers and sisters survive together with nephews and
nieces who are the children of the decedent's brothers and sisters of the full
blood, the former shall inherit per capita, and the latter per stirpes."

"ART. 1009. Should there be neither brothers nor sisters, nor children of
brothers or sisters, the other collateral relatives shall succeed to the estate."
Under the last article (1009), the absence of brothers, Bisters, nephews and
nieces of the decedent is a precondition to the other collaterals (uncles, cousins,
etc.) being called to the succession. This was also and more clearly the case
under the Spanish Civil Code of 1889, that immediately preceded the Civil Code
now in force (R. A. 386). Thus, Articles 952 and 954 of the Code of 1889
prescribed as follows:
"ART. 952. In the absence of brothers or sisters and of nephews or nieces,
children of the former, whether of the whole blood or not, the surviving spouse,
if not separated by a final decree of divorce shall succeed to the entire estate of
the deceased,"
"ART. 954. Should there be neither brothers nor sisters, nor children of
brothers or sisters, nor a surviving spouse, the other collateral relatives shall
succeed to the estate of deceased.
The latter shall succeed without distinction of lines or preference among them
by reason of the whole blood."

It will be seen that under the preceding articles, brothers and sisters and
nephews and nieces inherited ab intestato ahead of the surviving spouse, while
other collaterals succeeded only after the widower or widow. The present Civil
Code of the Philippines merely placed the spouse on a par with the nephews
and nieces and brothers and sisters of the deceased, but without altering the
preferred position of the latter vis a vis the other collaterals.

Appellants quote paragraph 2 of Tolentino's commentaries to Article 1009 of

the present Civil Code as declaring that Article 1009 does not establish a rule of
preference. Which is true as to "other collaterals", since preference among them
is according to their proximity to the decedent, as established by Article 962,
paragraph 1.
"ART. 962. In every inheritance, the relative nearest in degree excludes the more
distant ones, saving the right of representation when it properly takes place."
But Tolentino does not state that nephews and nieces concur with other
collaterals of equal degree. On the contrary, in the first paragraph of his
commentaries to Article 1009 (Vol. II, p. 439) (which counsel for appellants had
unethically omitted to quote), Tolentino expressly states:
"Other Collaterals.—The last of the relatives of the decedent to succeed in
intestate succession are the collaterals other than brothers or sisters or children of
brothers or sisters. They are, however, limited to relatives within the fifth degree.
Beyond this, we can safely sayr there is hardly any affection to merit the
succession of collaterals. Under the law, therefore, persons beyond the fifth
degree are no longer considered as relatives, for successional purposes.

Article 1009 does not state any order of preference. However, this article should
be understood in connection with the general rule that the nearest relatives
exclude the farther. Collaterals of the same degree inherit in equal parts, there
being no right of representation. They succeed without distinction of lines or
preference among them on account of the whole blood relationship." (Italics
supplied)
We, therefore, hold, and so rule, that under our laws of succession, a decedent's
uncles and aunts may not succeed ab intestato so long as nephews and nieces of
the decedent survive and are willing and qualified to succeed.

The decision appealed from, in so far as it conforms to this rule, is hereby

affirmed. No costs.

Bengzon, C. J., Concepcion, Dizon, Regala, Makalintal, Bengzon, J. P., and Zaldivar, JJ.,
concur.

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