139.

Bacayo v Borromeo, GR L-19382, August 31, 1965

FULL TEXT

IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELOIDA FARRARIS Date:

Petitioner: FILOMENA ABELLANA DE BACAYO Topic: Representation

Respondent: GAUDENCIA FERRARIS DE BORROMEO, CATALINA FERRARIS DE Ponente: REYES, J.B.L., J.
VILLEGAS, JUANITO FERRARIS and CONCHITA FERRARIS
FACTS:

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. 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 left properties in Cebu City, consisting of 1/3 share in the estate of her aunt, Rosa, valued at P6,000.

Melodia left no surviving direct descendant, ascendant, or spouse, but was survived only by collateral relatives,
Filomena Abellana de Bacayo, an aunt and half-sister of her 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, who pre-deceased her. These two classes of heirs claim to be the
nearest intestate heirs and seek to participate in her estate.

CFI Cebu ruled in favor of the nieces and nephew. They are nearer in degree (two degrees) than Filomena
since nieces and nephews succeed by right of representation, while Filomena is three degrees distant from
Melodia, and that other collateral relatives are excluded by brothers or sisters or children of brothers or sisters
of the decedent in accordance with Art. 1009 of the NCC.

Bacayo’s contention:
Under Art. 975 of the NCC, no right of representation could take place when the nieces and nephew of the
decedent do not concur with an uncle or aunt, but rather the former succeed in their own right.
ISSUE:
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? [NO, the aunt will be excluded.]

RATIONALE: 

In case of intestacy, nephews and nieces of the de cujus exclude all other collaterals from the succession. This
is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the Philippines.
"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 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."

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

Under Art. 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. 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 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.

DISPOSITIVE PORTION: 
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.
Additional notes:

1. SUCCESSION; INTESTACY; COLLATERAL RELATIVES EXCLUDED BY NEPHEWS AND NIECES.

— 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.

2. ID.; ID.; WHEN COLLATERALS ENTITLED TO SUCCESSION. — 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. (Art. 1009 Civil Code.)

3. ID.; ID.; DEGREE OF RELATIONSHIP OF COLLATERAL RELATIVES TO THE DECEASED. — An

aunt of the deceased 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).

4. ID.; ID.; WHEN NEPHEWS AND NIECES INHERIT BY RIGHT OF REPRESENTATION. — Nephews
and nieces alone do not inherit by right of representation (i.e., per stirpes) unless concurring with brothers
or sisters of the deceased.