The whole inheritance is accorded the heirs by the

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behalf consisting of the third available for free disposal. The whole inheritance is accorded the heirs by the second marriage upon the mistaken belief that the heirs by the first marriage have already received their shares. Were it not for this mistake, the testator's intention, as may be clearly inferred from his will, would have been to divide his property equally among all his children. REBECCA VIADO NON, JOSE A. NON and DELIA VIADO v. THE HONORABLE COURT OF APPEALS, ALICIA N. VIADO, CHERRI VIADO and FE FIDES VIADO G.R. No. 137287, February 15, 2000, VITUG, J. Where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. Facts: 27 | P a g e
Wills and Succession Spouses Julian Viado and Virginia Viado owned several pieces of property, among them a house and lot located in Quezon City. Virginia died ahead of Julian who died three years later. Surviving them were their children namely Nilo, Leah, Delia, and petitioners Rebecca, married to Jose Non, and Delia Viado. Nilo died on 22 April 1987 leaving behind as his own sole heirs, respondents Alicia Viado, his wife and their two children Cherri and Fe Fides. They shared a common residence which was previously owned by the. Julian and Virginia. Soon, however, tension would appear to have escalated between Rebecca and Alicia after Rebecca had asked that the property be equally divided between the two families to make room for the growing children. Alicia and her children, forthwith, claimed absolute ownership over the entire property and demanded that petitioners vacate the portion occupied by the latter. Alicia and her children filed a case for partition before the RTC, claiming absolute ownership over the subject property on two documents, a deed of donation executed by the late Julian covering his one-half conjugal share of the property in favor of Nilo and a deed of extrajudicial settlement in which Julian, Leah, and petitioner Rebecca waived in favor of Nilo their rights and interests over their share of the property inherited from Virginia. Rebecca and Jose attacked the validity of the instruments, contending that that the exclusion of her retardate sister, Delia Viado, in the extrajudicial settlement, resulted in the latter's preterition that should warrant its annulment. The RTC adjudged Alicia and her children as being the true owners of the disputed property, which was affirmed by the CA. Issue: Whether or not the preterition by Delia Viado will result to the annulment of the extrajudicial settlement of the property Ruling: No. When Virginia P. Viado died intestate in 1982, her part of the conjugal property, the Isarog property in question included, was transmitted to her heirs—her husband Julian and their children Nilo Viado, Rebecca Viado, Leah Viado and Delia Viado. The inheritance, which vested from the moment of death of the decedent, remained under a co-ownership regime among the heirs until partition. Every act intended to put an end to indivision among co-heirs and legatees or devisees

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