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Abellana de Bacayo v. Ferraris de Borromeo (Aug.

31, 1965)
Jose Benedicto Luna Reyes, J.:
Mateo C. Bacalso and C. Kintanar for petitioner-appellant.
Gaudioso Sosmea and C. Tomakin for oppositors-appellees.
CAPTION/PROBLEM: Melodia Ferraris was declared presumptively dead after not being seen for 10 years. Her
closest surviving relatives were an aunt (half-sister of Melodias father), 3 nieces, and a nephew (all children of
Melodias only brother). Who are the intestate heirs of Melodia? Do the nieces and nephew (niblings) exclude the
aunt (or vice versa)?
HELD: The nieces and nephew are the intestate heirs. The aunt is excluded. Under NCC 1009, the absence of
siblings or nieces and nephews is a precondition to the other collateral relatives being called to the succession. If
such condition is satisfied, the collateral relatives then inherit in equal parts, subject to the general rule that nearer
relatives exclude farther relatives.

Dec. 22, 1960 Filomena ABELLANA de Bacayo filed a petition for the summary settlement of the estate of
MELODIA Ferraris before the Cebu CFI.
o Melodia was last seen in Intramuros, Manila (where she was a resident since 1937). The estate
proceedings were had since Melodia was presumptively dead (she was last seen in 1944).
o She left 6,000 pesos worth of properties located in Cebu City.
o She left no direct descendants, her only surviving relatives being;

Abellana (Melodias aunt; half-sister of her father)

Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris (FERRARIS

SIBLINGS, children of Melodias only brother Arturo, who died in 1947 [predeceased
Melodia]). They opposed the estate proceedings.

Sep 20, 1961 - CFI RULING: In favor of the Ferraris siblings.

o The Ferraris siblings, as children of Melodias only predeceased brother, exclude Abellana because
the former are nearer in degree (two degrees) than the latter since nieces and nephews succeed
by right of representation, while Abellana is three degrees distant from Melodia, and because other
collateral relatives are excluded by brothers or sisters or children of brothers or sisters of the
decedent in accordance with NCC 1009.
o Abellana filed a paupers appeal before the SC.
ISSUE (HELD): 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
nieces and nephews will inherit; and they will exclude the aunt.)

Abellana: She is in the same degree of relationship to Melodia as the Ferraris siblings (3 degrees). Also,
under NCC 975, nephews and nieces do not have the right of representation when they concur with uncles
or aunts; hence they succeed in their own right.

SC: Agrees with both of Abellanas contentions, nevertheless CFI decision is correct and must be upheld
insofar as it conforms to the rules about to be set forth.
o Abellana is correct in claiming that under NCC 975, nieces/nephews do not inherit by right of
representation unless they concur with brothers/sisters of the decedent. If only nieces/nephews
are left, they shall inherit in equal portions.
o BUT in case of intestacy, nephews/nieces of the decedent exclude all other collateral relatives
from the succession. BASES: NCC 1001, 1004, 1005, and 1009.

NCC 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 them by reason
of relationship by the whole blood.
o Under NCC 1009, the absence of siblings and niblings of the decedent is a precondition to the
succeeding by the other collateral relatives (aunts, uncles, cousins, etc.)
o The old Civil Code was clearer on the matter:

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
The latter shall succeed without distinction of lines or preference among them by reason
of the whole blood.
Under Arts. 952 and 954 of the old Code, siblings and niblings of the decedent inherited ahead of
the surviving spouse, while the other collateral relatives inherited only after the surviving
spouse. The New Civil Code simply placed the spouse on par with the siblings and
niblings of the deceased, without altering the preferred position of the latter vis--vis the
other collateral relatives.
The reliance on Tolentinos commentaries to NCC 1009 is misplaced. Indeed there is no order of
preference under NCC 1009, but this is true with respect to Other collaterals because their order
of preference is already provided for in NCC 9621, which embodied the general principle that
relatives nearer in degree exclude the farther ones.
Tolentino does not say that nephews and nieces concur with other collaterals of equal degree. In
fact he is of the opposing view (and counsel for Abellana unethically failed to quote the whole
portion of Tolentinos comments which shows this):
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 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.

DISPOSITION: Decision affirmed.