11/16/23, 11:51 PM G.R. No.

L-19382

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Republic of the Philippines

EN BANC

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

IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELODIA FERRARIS.

FILOMENA ABELLANA DE BACAYO, petitioner-appellant,

Mateo C. Bacalso and C. Kintanar for petitioner-appellant.

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 Abellana 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:

Note: Picture

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 nephews 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.

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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 of 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 stripes) 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 latter 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 stripes.

ART. 1009. Should there be neither brothers nor sister nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the
whole blood.

Under the last article (1009), the absence of brothers, sisters, 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 brother, 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 or 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 say there is hardly any affection to merit the

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succession of collaterals. Under the law, therefore, relatives 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. (Emphasis 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.
Bautista Angelo, J., took no part.

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