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behalf consisting of the third available for free disposal. The whole inheritance is accorded the heirsby the second marriage upon the mistaken belief that the heirs by the first marriage have alreadyreceived their shares. Were it not for this mistake, the testator's intention, as may be clearly inferredfrom his will, would have been to divide his property equally among all his children.REBECCA VIADO NON, JOSE A. NON and DELIA VIADOv. THE HONORABLE COURT OFAPPEALS, ALICIA N. VIADO, CHERRI VIADO and FE FIDES VIADOG.R. No. 137287, February 15, 2000, VITUG, J.Where the preterition is not attended by bad faith and fraud, the partition shall not berescinded but the preterited heir shall be paid the value of the share pertaining to her.Facts:27 | P a g e
Wills and SuccessionSpouses Julian Viado and Virginia Viado owned several pieces of property, among them ahouse 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 toJose 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 acommon residence which was previously owned by the. Julian and Virginia. Soon, however, tensionwould appear to have escalated between Rebecca and Alicia after Rebecca had asked that theproperty 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 anddemanded that petitioners vacate the portion occupied by the latter. Alicia and her children filed acase for partition before the RTC, claiming absolute ownership over the subject property on twodocuments, a deed of donation executed by the late Julian covering his one-half conjugal share of theproperty in favor of Nilo and a deed of extrajudicial settlement in which Julian, Leah, and petitionerRebecca waived in favor of Nilo their rights and interests over their share of the property inheritedfrom Virginia. Rebecca and Jose attacked the validity of the instruments, contending that that theexclusion of her retardate sister, Delia Viado, in the extrajudicial settlement, resulted in the latter'spreterition 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 theextrajudicial settlement of the propertyRuling: No. When Virginia P. Viado died intestate in 1982, her part of the conjugal property, theIsarog property in question included, was transmitted to her heirs—her husband Julian and theirchildren Nilo Viado, Rebecca Viado, Leah Viado and Delia Viado. The inheritance, which vested fromthe moment of death of the decedent, remained under a co-ownership regimeamong the heirs untilpartition. Every act intended to put an end to indivision among co-heirs and legatees or devisees