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[ GR No. 14646, Oct 24, 1919 ]



40 Phil. 316

[ G.R. No. 14646, October 24, 1919 ]




Bartolome Viola died on March 26, 1915, leaving a legitimate daughter, Maria Concepcion Viola, the defendant herein, and a recognized natural son, Florentino Chico, the plantiff herein. It does not appear that he had left any other legitimate descendant. The other defendant, Torrias C. Reyes, is a jparty-defehdant simply as the husband of Maria Concepcion Viola. Bartolome Viola left several kinds of property.

On February 5, 1913, the trial court rendered judgment in the present case declaring that the plaintiff, as the recognized natural sob of Bartolome Viola, has a right to one-sixth of the property left by the latter and described in the. complaint and ordering the defendant, Maria Concepcion Viola, to deliver to the plaintiff said sixth part.

The commissioners appointed to effect the partition of said property 'between the plaintiff and the defendant, Maria Concepcion Viola, in accordance with the decision of the lower court, submitted their report on April 17, 1917, which was approved by the court on September 28, 1917.

The plaintiff excepted to the decision of the trial court of February 5, 1913, and the order of September 28, 1917.

In this instance all of the errors assigned by the appellant as having been committed by the trial court are reduced to this: That the court erred in declaring that plaintiff has a right to only a sixth, instead of to a third part, of the property left by Bartolome Viola. In other words, the question involved is whether or not, there being only one legitimate daughter and only one recognized natural son with no other legitimate descendants, the share which ought to pertain to the natural son is a third or a sixth part of the entire hereditary estate. Article 840 of the Civil Code says:
"When the testator leaves legitimate children or descendants, and also natural children, legally acknowledged, each of the latter shall be entitled to one-half of the portion pertaining to each of the legitimate children who have not received any betterment, provided that a sufficient amount remains of the disposable portion, from which it must be taken, after the burial and funeral expenses have been paid."
Article 808 of the same Code says:
"The legitime of legitimate children and descendants consists of two-thirds of the hereditary estate of the father or of the mother.

"Nevertheless, the latter may dispose of one of the twothirds forming the legitime in order to apply it as betterment to their legitimate children or descendants. "They may freely dispose of the remaining third"
The trial court, it appears, has interpreted article 840 in the sense that the portion pertaining to each of the legitimate children who have not received any betterment, which, in said article, is the basis in order to determine the portion which ought to pertain to the natural children, does not include the third destined for betterment.

We hereby declare that this interpretation is wrong. There being in this case but one¦legitimate daughter and there being no descendant who may be given a betterment and Bartolome Viola in fact not having given a betterment to any son or descendant, the portion which ought to pertain to said legitimate daughter is the entire legitime consisting of two-thirds of the hereditary estate. The fact that in this portion is included that which is destined for betterment does not mean that said daughter has received a betterment. The right of the father and of the mother to apply as a betterment one of the two-thirds of their hereditary estate forming the legitimate (art. 808, Civil Code) signifies the right to dispose of this third portion in favor of one or more of their children or descendants, thereby giving them a betterment in relation to the other children or descendants (art. 823, Civil Code). When there is but one legitimate son and there is no legitimate descendant, the former by provision of law is the owner of the twothirds forming the legitime, and it cannot be said that he is thereby given a betterment. If it were so, it would be in relation to himself that he thereby received a betterment. However, the law should not be understood in that sense. Furthermore, if the act of giving a betterment is a right the exercise of which depends upon the will of the father or of the mother and the latter did not make use of said right, it would be against actual facts to consider a son as having received a betterment who has not acquired any thing by virtue of the will of said parents but by virtue of the provision of law. If we admit similar theory the consequence would be that, when the father or the mother does not give a betterment to any child or descendant, 'all of them latter would be considered as receiving betterments. But, the strict sense of the provision of the law does not admit of such conflicting ideas. Nor can it be said, under such a supposition, that the children are impliedly given betterments, presuming on the part of the father or mother the intention of giving betterments to them in equal portions, because from other provisions (articles 825 and 828 of the Civil Code) it is clearly inferred that the law repudiates such presumption. And, with greater reason, this presumption is inadmissible in a case as the instant one in which, there being but one legitimate daughter and no descendant, the right said daugther has over all of the twothirds of the hereditary estate forming the legitime is granted to her only by provision of law, and the father or the mother cannot absolutely change it, and strictly speaking they do not have in this present case the right to dispose of the one-third portion destined for betterment. Without presupposing the existence of such right there can be no presumption of the exercise thereof.

If, according to article 808, the two-thirds of the hereditary estate of the father or of the mother constitute the legitime of the legitimate children and descendants, without prejudice to their right of giving a betterment, it follows that, when said parents did not make use of said right, all of the two-thirds pertained to their legitimate children and descendants as the latter's legitime without thereby considering them as receiving a betterment. In giving this interpretation to article 808, we have taken into consideration its provision, disregarding any discussion as to whether or not it iscontradictory with the law of "Bases" which was taken as the source of the Civil Code. We accept the criterion that, even granting the existence of similar contradiction, the Code, and not the "Bases," is the law.

Therefore, reversing the judgment and order appealed from, it is hereby declared that the plaintiff has a right to one-third of the hereditary estate, provided it must be taken from the disposable portion after deducting the expenses mentioned by law, and it is hereby ordered that the records of this case be returned to the lower court in order that a' new partition be made upon the basis mentioned. No special finding as to costs. So ordered.

Arellano, C.J., Torres, Johnson, Street, and Malcolm, JJ., concur.

Judgment and order reversed, case remanded with instructions.