G.R. No.

L-2599 October 27, 1905

CARMEN LINART Y PAVIA, plaintiff-appellee,
vs.
MARIA JANA GARTE E ITRRAL!E, defendant-appellant.
Pedro Concepcion for appellant.
Thos. D. Aitken for appellee.

ARELLANO, C.J.:
Ramon Iturralde y Gonzalez having died intestate on the 28th of December, !"", #aria $uana
%garte e Iturralde as&ed that she be 'udicially declared the legitimate heir of the deceased.
(here being no legitimate heirs to the estate either in the direct ascendant or descendant line of
succession, the petitioner presented herself as a collateral
descendant ) that is to say, as the legitimate niece of the deceased. *er mother, #aria $uana
Iturralde y Gonzalez, as +ell as the deceased, Ramon Iturralde y Gonzalez, +ere children of
#anual Iturralde and $osefa Gonzalez.
(he petition of #aria $uana %garte e Iturralde, then the only claimant to the estate, having been
heard in accordance +ith the provisions of the ,ode of ,ivil -rocedure in force at the time,
intestate proceedings +ere instituted, and she +as declared, in an order made on the .st of
$anuary, !", +ithout pre'udice to third parties, to be the heir of the deceased, Ramon Iturralde
y Gonzalez.
In the month of December, !"/, ho+ever, ,armen 0inart, through her guardian, Rafaela -avia,
claimed one-half of all of the estate of the deceased, Ramon Iturralde y Gonzalez, and as&ed at
the same time that #aria $uana %garte e Iturralde, +ho had been declared the la+ful heir of the
deceased ) a fact +hich this ne+ relative did not
deny ) be re1uired to render an account of the property of the estate.
(he father of the petitioner +as in the same collateral degree of succession as #aria $uana
%garte e Iturralde. -ablo 0inart, the father of ,armen 0inart, +as the legitimate son of #aria
$osefa Iturralde y Gonzalez, another sister of Ramon Iturralde y Gonzalez. (hey, and #aria
$uana Iturralde y Gonzalez are the common trun& from +hich the three branches issue.
,armen 0inart does not claim that her father, -ablo, +ho +as of the same degree as #aria $uana
%garte e Iturralde, should have succeeded Ramon, for the reason that the latter died first. (his,
ho+ever, +as not alleged, mush less proved. 2hat she claims is that, although she is one degree
lo+er in the line of succession that her aunt, #aria $uana Iturralde y Gonzalez, yet she is entitled
to a share of the estate of the deceased through her father, -ablo 0inart, by representation ) that
is to say, that even though a grandniece, she is entitled to the same share in the estate as the
direct niece, #aria $uana %garte e Iturralde.lawphil.net
(he court belo+ on the 2/th of 3ebruary, !"4, entered 'udgment declaring that the petitioner
had the same right to participate in the inheritance as had #aria $uana %garte e Iturralde, and
ordered the latter to render an account of the estate, en'oining her, at the same time, from
disposing of any part thereof until such accounting had been made and the estate distributed.
#aria $uana %garte e5cepted to the 'udgment and has brought the case to this court.
6fter a consideration of the case, this court finds7 89 (hat the relative nearest in degree e5cludes
those more distant, +ith the e5ception of the right of representation in proper cases 8art. !2, par.
of the ,ivil ,ode9: and 829 that the right of representation in the collateral line shall ta&e place
only in favor of children of brothers or sisters +hether they be of +hole or half blood 8art. !24,
par. 29.
In the light of the foregoing, the error +hich the appellant claims +as committed in the court
belo+ is very clearly sho+n. (he court belo+ held that the grandniece +as entitled to the same
share of the estate that the niece +as entitled to, +hen, as a matter of la+, the right of
representation in the collateral line can only ta&e place in favor of the children of brothers or
sisters of the intestate, and the plaintiff in this case is not a daughter of one of the sisters of the
deceased, such as is the appellant, but the daughter of a son of a sister of the deceased. It +ould
have been 1uite different had it been sho+n that her father, -ablo 0inart, had survived the
deceased. In that case he +ould have succeeded to the estate +ith his cousin, #aria $uana
%garte, and then, by representation, she, the plaintiff, might have inherited the portion of the
estate corresponding to her father;s. It is not an error to consider that the +ord <children< in this
connection does not include <grandchildren.< (here is no precedent in our 'urisprudence to
+arrant such a conclusion.
(he decisions of the supreme court of =pain of >ctober !, 8!!, and December ., 8!4, relied
upon, are not applicable to this case. (hose decisions +ere rendered in cases relating to testate
and not to intestate successions. In both cases, and in many others decided by the supreme court
of =pain, prior to the operation of the ,ivil ,ode, +here a testator had named certain persons as
heirs and, they failing, that the property should pass to their children, it +as held that
<Grandchildren< +ere necessarily included in the +ord <children,< and that in such a case the
grandchild does not, properly spea&ing, inherit by representation, <for the reason that he must in
any event succeed the child in the natural and regular order,< and pointed out in the last decision
referred to. 6nd, as is also pointed out in the first decision, <the fact that it +as stated +ith more
or less correctness in the prayer of the complaint that the action +as based upon the right of
representation, is not sufficient to deny to the appellant a right +hich he had under the terms of
the +ill.< (he difference is this, that in the case of a testamentary succession, +e must ta&e into
consideration and give force to the intention of the testator +hen he substitutes the children for
the heirs first named by him. (he descendants are ordinarily considered as included in the term
<children,< unless they are e5pressly e5cluded, +hereas in intestate successions, reference should
only be had to the provisions of the la+ under +hich it is evident that the rights of representation
in the collateral line do not obtain beyond the sons and daughters of brothers or sisters.
2e, therefore, hold that in an intestate succession a grandniece of the deceased can not
participate +ith a niece in the inheritance, because the latter, being a nearer relative, the more
distance grandniece is e5cluded. In the collateral line the right of representation does not obtain
beyond sons and daughters of the brothers and sisters, +hich +ould have been the case if -ablo
0inart, the father of the plaintiff, had survived his deceased uncle.
3or the reasons above stated, +e hereby reverse the 'udgment of the court belo+, and declare that
,armen 0inart has no right to succeed the deceased +ith said #aria $uana %garte e Iturralde,
+ho +as once declared to be the la+ful heir, and +ho is no+ in possession of the estate, as to
+hom +e hereby dissolve the in'unction issued from the ,ourt of 3irst Instance.
6fter the e5piration of t+enty days let 'udgment be entered in accordance here+ith, +ithout
special provisions as to the costs of this instance, and let the record be remanded to the court of
3irst Instance from +hence it came for e5ecution of the said 'udgment. =o ordered.
Torres, Mapa, Johnson, Carson, and Willard, JJ., concur.