Bacayo vs. Ferraris de Borromeo

Under the laws of intestate succession, a decedent's nieces and nephews exclude the decedent's aunts and uncles from inheriting, even if they are of the same degree of consanguinity.

Melodia Ferraris was a resident of Cebu City until 1937, then moved to Intramuros, Manila until 1944. After 1944, she was never heard from again. More than ten years having elapsed, she was declared presumptively dead for purposes of opening her succession. She left properties in Cebu City consisting of a 1/3 share in the estate of her aunt, Rosa Ferraris, valued at around P6,000.

• Original Filing: Special Proceeding No. 2177-R, Court of First Instance of Cebu, Third Branch (Summary settlement of estate)
• Lower Court Decision: September 20, 1961 — Excluded Filomena Abellana de Bacayo as an heir, ruling that the oppositors (nieces/nephew) were nearer in degree and excluded the aunt under Art. 1009.
• Appeal: Pauper's appeal directly to the SC on points of law.
• SC Action: Direct review of the CFI resolution and the denial of the motion for reconsideration.

• The Decedent: Melodia Ferraris died without surviving direct descendants, ascendants, or spouse.
• The Surviving Collaterals: Two classes of collateral relatives survived her:
  • The Aunt: Filomena Abellana de Bacayo, the half-sister of decedent's father, Anacleto Ferraris.
  • The Nieces and Nephew: Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris, children of Melodia's predeceased full-blood brother, Arturo Ferraris.
  • The Dispute: Both classes of heirs claim to be the nearest intestate heirs. The aunt is three degrees removed from the decedent (ascending to the father, then to the father's half-sister). The nieces/nephew are also three degrees removed (ascending to the father, descending to the brother's children).
  • Lower Court Ruling: The CFI excluded the aunt, reasoning that the nieces/nephew were nearer in degree (two degrees) because they succeed by right of representation, while the aunt was three degrees distant.

• The aunt is of the same degree of relationship as the oppositors (three degrees removed from the decedent).
• Under Art. 975 of the Civil Code, right of representation does not take place when nieces and nephews do not concur with an uncle or aunt; therefore, the nieces and nephews succeed in their own right.
• Since they succeed in their own right and are of equal degree, the aunt should concur with them in the inheritance.
• Relies on Tolentino's commentary claiming Art. 1009 does not establish a rule of preference.

• As children of the predeceased brother, they are nearer in degree (two degrees) than the aunt (three degrees).
• Nephews and nieces succeed by right of representation.
• Other collateral relatives are excluded by brothers/sisters or children of brothers/sisters under Art. 1009 of the Civil Code.

• Procedural Issues: N/A
• Substantive Issues:
  • Whether an aunt of the decedent can concur with the children of the decedent's predeceased brother in intestate succession.
  • Whether the rule of proximity in degree (Art. 962) applies to determine preference between nieces/nephews and aunts/uncles.

• Procedural: N/A
• Substantive:
  • The SC agreed with the petitioner that the aunt and the nieces/nephew are equally three degrees removed from the decedent. Under Art. 966, degrees in the collateral line are counted by ascending to the common ancestor and descending to the heir.
  • The SC also agreed that under Art. 975, nieces and nephews alone do not inherit by right of representation but in their own right.
  • However, the SC ruled that the nieces and nephews still exclude the aunt. Under Art. 1009, the absence of brothers, sisters, nephews, and nieces is a strict precondition before "other collaterals" (uncles, aunts, cousins) can be called to the succession.
  • The rule in Art. 962 (nearest relative excludes the more distant) applies only among "other collaterals" under Art. 1009, not across the different classes of collaterals. Nephews and nieces hold a preferred position vis-à-vis other collaterals.

• Preference of Nephews and Nieces over Other Collaterals — Under Art. 1009 of the Civil Code, nephews and nieces exclude uncles, aunts, and other collaterals from intestate succession. The presence of nephews and nieces is a bar to the succession of other collaterals, regardless of equal proximity in degree.
• Right of Representation in the Collateral Line — Under Art. 975, children of brothers or sisters inherit by representation only if they concur with their uncles or aunts. If they alone survive, they inherit in equal portions in their own right.
• Counting Degrees in the Collateral Line — Under Art. 966, degrees of relationship in the collateral line are counted by ascending to the common ancestor and then descending to the heir. Both an aunt and a nephew/niece are three degrees removed from the decedent.

• Art. 966, Civil Code — Governs counting degrees in the collateral line. Applied to correct the lower court's finding that the aunt was farther in degree than the nieces/nephews; both are three degrees removed.
• Art. 975, Civil Code — Governs right of representation for children of brothers/sisters. Applied to agree with the petitioner that nieces/nephews inheriting alone succeed in their own right, not by representation.
• Art. 1009, Civil Code — Governs succession of "other collaterals." Applied as the primary basis for excluding the aunt; the absence of brothers, sisters, or their children is a precondition before other collaterals can inherit.
• Art. 962, Civil Code — General rule that the nearest relative excludes the more distant. Applied to clarify that this rule of preference by proximity operates within the class of "other collaterals" under Art. 1009, not to override the statutory preference given to nieces and nephews.