CIVIL LAW REVIEW: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION RIGHT OF ACCRETION Example: A has a son, X.

A dies in 1988. Inheritance is a mango plantation. In 1990, there is a crop. Is it part of the inheritance? 1. 2.

According to Art. 781, yes. This is inconsistent w/ Art 777 bec. succession occurs at the moment of death. Art. 781 implies a second succession. Legal concept No. X owns it through accession and not succession. Fruits are no longer part of the inheritance. It belongs to the heir bec. of ownership of the land he received at the moment of death. (Art. 777.) Those w/c have accrued thereto after death do not comprise the inheritance but they accrue by virtue of ownership (accretion.)

Requisites:

1.
a. b. c.

Two or more heirs, devisees and legatees are called to the same inheritance, devise or legacy pro-indiviso. Pro indiviso means without designation of parts or the portions are undivided. 2. One of the persons called: Die before the testator Renounce the inheritance Be incapacitated to receive it.

Note: These are the same causes for substitution. CONCEPT ART. 1015 Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or colegatees. (n) In order that the right of accretion may take place in a testamentary succession, it shall be necessary:

ART. 1016

1.
2. ART. 1017

That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. (928a)

The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion. In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. (983a) In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. (981) The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. (n) The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. (984)

ART. 1018 ART. 1019 ART. 1020

IN LEGAL SUCCESSION ART. 1018 In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. (981)

COMPULSORY SUCCESSION ART. 1021 Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger.

Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (985) TESTAMENTARY ART. 1022 ART. 1023 In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (986) Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. (987a)

PARTITION AND DISTRIBUTION OF THE ESTATE ART. 1078 ART. 1079 ART. 1080 Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n) Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. (n) Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (1056a) A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs. The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to

ART. 1081

CIVIL LAW REVIEW: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION

ART. 1082 ART. 1083

guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. (1057a) Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. (n) Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs. (1051a)

ART. 1084

Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other coheirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. (1054a) In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. (1061) Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash. Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. (1062) In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect. (1063) Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (1067a) The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated. (1065a) When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title. (1066a) November 25, 1949 Don Jesus and Dona Florentina with all their children entered into a duly notarized agreement Escritura de Particion Extrajudicial. January 5, 1955 the Spouses separately executed their holographic wills in conformity and in implementation of the extrajudicial partition. Their holographic wills similarly provided for the institution of the other to his or her share in the conjugal properties, the other half having been partitioned to constitute their legitime among their 4 children. May 21, 1956 Spouses filed petitions for the probate of their holographic wills. August 14, 1956 they executed and filed their mutual and reciprocal codicils amending and supplementing their respective holographic wills. Upon death of Dona Tinay, Don Jesus was named executor. Early part of Nov 1959, Don Jesus cancelled his holographic will and instructed his lawyer to draft a new will. Essential features: 1. It expressly cancelled, revoked and annulled all the provisions of Don Jesus holographic will and his codicil; 2. It provided for the collation of all his properties donated to his 4 children by virtue of the Extrajudicial Partition; 3. It instituted his children as legatees/devisees of certain properties and as to the rest were to be given to Francisca and Pablo. All heirs and Don Jesus submitted for the approval of the deed of partition executed on Dec 1959 which essentially confirmed the provisions of the partition of 1949, the holographic will and codicil. When Don Jesus died, Francisca, named as the executrix, filed a petition for the probate of Dons will. She then filed an inventory of the properties of the estate Don Jesus was not forever bound thereby for his previous holographic will and codicil as such, would remain revokable at WHETHER DON JESUS WOULD BE BOUND EXTRAJUDICIAL PARTITION HE EXECUTED? NO! BY THE

ART. 1085 ART. 1086

ART. 1087 ART. 1088

ART. 1089 ART. 1090

ALSUA BETTS VS. CA

The extrajudicial partition is null and void under Article 1056 in relation to Article 1271 of the old Civil Code. Respondent court concluded that under both the old and new Civil Code, a person who executes a will is permitted at the same time or a little thereafter or even before as long as he mentions this fact in the will, to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code. The extrajudicial partition of November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy had been validly ratified by the holographic will of Don Jesus executed and his codicil. Such a holding of the appellate court that a person who executes a will is permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code even before executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs. Verzos. The extrajudicial partition contained specific designation of properties allotted to each child; there was substantial compliance with the rules on donations inter vivos under the old Civil Code (Article 633). On the other hand, there could have been no valid donation to the children of the other half reserved as the free portion of Don Jesus and Doa Tinay which, as stated in the deed, was to be divided equally among the children for the simple reason that the property or properties were not specifically described in the public instrument, an essential requirement under Article 633. Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to said Partition by making a holographic will and codicil with exactly the same provisions as those of Do;a Tinay, which respondent court sustained.

CIVIL LAW REVIEW: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION which according to the oppositors did not include some properties appearing in the Nov 1949 agreement and the Extrajudicial Partition of Dec 1959. It appearing that the properties being questioned were bequeathed to Pablo and Francisca. Francisca claimed ownership over the same alleging that she bought the properties from their father as evidenced by 2 deeds of sale. Oppositors filed a civil complaint for the annulment of the deeds of sale. TC: it approved and allowed the probate of the will and dismissed and dismissed the civil complaint. CA: reversed.

3 his discretion. Art. 828 of the new Civil Code is clear: "A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void." There ca be no restriction that may be made on his absolute freedom to revoke his holographic will and codicil previously made. This would still hold true even if such previous will had as in the case at baralready been probated . For in the first place, probate only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the succession are transmitted only from the moment of the death of the decedent (Article 777, New Civil Code). In fine, Don Jesus retained the liberty of disposing of his property before his death to whomsoever he chose, provided the legitime of the forced heirs are not prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole Alsua estate is being contested. The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic will of January 5, 1955 and the codicil of August 14, 1956; a statement requiring that all of his properties donated to his children in the Deed of 1949 be collated and taken into account in the partition of his estate; the institution of all his children as devisees and legatees to certain specific properties; a statement bequeathing the rest of his properties and all that may be acquired in the future, before his death, to Pablo and Francesca; and a statement naming Francesca as executrix without bond. A close scrutiny of the properties distributed to the children under the Deed of 1949 and those distributed under the contested will of Don Jesus does not show that the former had in fact been included in the latter. It must be presumed that the intention of Don Jesus in his last will was not to revoke the donations already made in the Deed of 1949 but only to redistribute his remaining estate, or that portion of the conjugal assets totally left to his free disposal and that which he received as his inheritance from Doa Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or intimated otherwise. The properties that were disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be diamond of by him to whomsoever he may choose.

DOROMAL VS. CA ALONZO VS. IAC

5 brothers and sisters inherited a parcel of unregistered land, in equal pro indiviso shares from the deceased parents. In 1963, One of them Celestino Padua, transferred his undivided share to a 3rd party (herein petitioners) for Php 550.00 by way of an absolute sale. A year later, his sister Eustaquia Padua, sold her share to the same vendees for Php 440.00 in an instrument denominated as Con Pacto de Retro Sale. Since then, the petitioners occupied the area corresponding to 2/5 of the lot and eventually enclosed the area with a fence. However, in 1976, one of the co-heirs, Mariano Padua, wanted to redeem the area sold to the petitioners. His complaint was dismissed when it appeared that he was an American citizen. In 1977, another co-heir, Tecla Padua, filed for the same invoking the right of redemption. TC: dismissed the complainT on the ground that the right had lapsed (not having been exercised within 30 days from notice of the sales in 1963 and 1964. It also ruled that it is highly improbable that the co heirs did not know about the sale because they lived within the compound. Thus, actual notice sufficed. IAC: reversed the TC and declared that the notice required by the Art 1088 (which states: should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of 1 month from the time they were notified in writing of the sale by the

DOES ACTUAL NOTICE SUFFICE? YES Held: We interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. While Art 1623 states that the right of legal predemption or redemption shall not be exercised except within 30 days from the notice in writing by the prospective vendor, or by the vendors, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice there to all possible redemptioners it is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions, the intent of the lawmaker. The law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. In this case, the right of redemption was invoked not days but years after the sale were made in 1963 and 1964. The delay invoked by the petitioners extends to more than a decade, assuming of course that there was a valid notice that tolled the running of the period of redemption. Was there valid notice? Would written notice be necessary in this case? NO. This court cannot accept respodnents argument THAT THEY WERE NOT AWARE OF THE SALE MADE BY THEIR BROTHER AND SISTER because they lived in the same premises. Petition granted. IAC decision is reversed. Decision of TC is

CIVIL LAW REVIEW: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION

vendor ) WAS WRITTEN NOTICE AND THAT ACTUAL NOTICE WOULD NOT SUFFICE

reinstated.

BAUTISTA VS. GRINOAQUINO DE LOS SANTOS VS. DE LA CRUZ Gertrudes de los Santos is the grandniece of the deceased, Pelagia de la Cruz, while De La Cruz is the latters nephew. Marciana de la Cruz is the mother of De Los Santos the niece of the said Pelagia de la Cruz. She predeceased her aunt. On August 24, 1963, De Los Santos and several co-heirs, including the De La Cruz, executed an extrajudicial partition agreement over a certain portion of land with an area of around 20,000 sq. m. There they agreed to adjudicate (3) lots to De La Cruz, in addition to his corresponding share, on condition that the latter would undertake the development and subdivision of the estate which was the subject matter of the agreement, all expenses in connection therewith to be defrayed from the proceeds of the sale of the (3) lots. In spite of demands of De Los Santos and by the residents of the subdivision, De La Cruz refused to perform his obligation although he had already sold the lots. De Los Santos admitted the due execution of the extrajudicial partition agreement, but affirmatively defended that De Los Santos had no cause of action against him because the agreement was void with respect to her, since the latter was not an heir of Pelagia de la Cruz, the deceased owner of the property, and was included in the extrajudicial partition agreement by mistake. Furthermore, the proceeds of the sale were not sufficient to develop and improve properly the subdivided estate. De La Cruz answer contained a counterclaim, alleging that De Los Santos had likewise sold her share in the estate for P10,000.00, and that the extrajudicial partition agreement being void insofar as the latter was concerned, he was entitled to one-fourth (1/4) of the proceeds as his share by way of reversion. RTC Ruled in favor of De Los Santos since De La Cruz was estopped because he had been a party to the extrajudicial partition. EFFECTS OF PARTITION ART. 1091 A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. (1068) ART. 1092 ART. 1093 After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated. (1069a) The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified. Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. (1071) An action to enforce the warranty among heirs must be brought within ten years from the date the right of action accrues. (n) If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made. The warranty of the solvency of the debtor can only be enforced during the five years following the partition. Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. (1072a) The obligation of warranty among co-heirs shall cease in the following cases: WHETHER DE LOS SANTOS IS AN HEIR OF THE DECEDENT? NO She is a mere grandniece of Pelagia de la Cruz, she could not inherit from the latter by right of representation. Under ART. 962, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. In the collateral line the right of representation does not obtain beyond sons and daughters of the brothers and sisters. In the present case, the relatives "nearest in degree" to Pelagia de la Cruz are her nephews and nieces. Necessarily, a grandniece is excluded by law from the inheritance. Under the agreement, the parties thereto were laboring under the erroneous belief that De Los Santos was one of the legal heirs of Pelagia de la Cruz. Since she is not an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code.

ART. 1094 ART. 1095

ART. 1096

1. 2.
3.

When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired; When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;

GUILAS VS. JUDGE

When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. (1070a) Jacinta Limson de Lopez was married to Alejandro Lopez y Siongco. WHETHER THE APPROVAL OF THE PROJECT OF PARTITION They had no children. Jacinta executed a will instituting her husband TERMINATED THE TESTATE PROCEEDINGS AS TO PRECLUDE Alejandro as her sole heir and executor.

CIVIL LAW REVIEW: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION In Sp. Proc. No. 894, herein petitioner Juanita Lopez, then single and now married to Federico Guilas, was declared legally adopted daughter and legal heir of the spouses Jacinta and Alejandro. After adopting legally herein petitioner Juanita Lopez, the testatrix Doa Jacinta did not execute another will or codicil so as to include Juanita Lopez as one of her heirs. Subsequently, the aforementioned will was admitted to probate and the surviving husband, Alejandro Lopez y Siongco, was appointed executor without bond by the Court of First Instance of Pampanga. Alejandro took his oath of office as executor Nevertheless, in a project of partition executed by both Alejandro Lopez and Juanita Lopez Guilas, the right of Juanita Lopez to inherit from Jacinta was recognized and Lots Nos. 3368 and 3441 (Jacinta's paraphernal property) were adjudicated to Juanita Lopez-Guilas as her share, with the executor Alejandro Lopez, binding himself to free the said two parcels from such liens, encumbrances and charges. The rest of the estate of the deceased consisting of 28 other parcels of lands with a total assessed valuation of P69,020.00 and a combined area of 743,924.67 square meters, as well as personal properties including a 1953 Buick car valued at P2,500.00 were allotted to Don Alejandro. The lower court approved the said project of partition. However, Juanita Lopez-Guilas filed a separate ordinary action to set aside and annul the project of partition, on the ground of lesion, perpetration and fraud, and pray further that Alejandro Lopez be ordered to submit a statement of accounts of all the crops and to deliver immediately to Juanita lots nos. 3368 and 3441 of the Bacolor Cadastre, which were allocated to her under the project of partition. Meanwhile, in Testate Proceedings No. 1426, Juanita filed a petition praying that Alejandro Lopez be directed to deliver to her the actual possession of said lots nos. 3368 and 3441. In his opposition to the petition, Alejandro Lopez claims that, by virtue of the order dated April 23, 1960 which approved the project of partition submitted by both Alejandro and Juanita, the testate proceedings had already been closed and terminated; and that he ceased as a consequence to be the executor of the estate of the deceased. JUANITA FROM CLAIMING ANY PART OF THE ESTATE? NO

The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding. As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated because a judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period therefor has not elapsed. The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for re-opening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate on intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. Section 1 of Rule 90 of the Revised Rules of Court of 1964 as worded, which secures for the heirs or legatees the right to "demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession", re-states the aforecited doctrines. In the light of Section 1 of Rule 90 of the Revised Rules of Court of 1964, the order dated December 15, 1960 of the probate court closing and terminating the probate case did not legally terminate the testate proceedings, for her share under the project of partition has not been delivered to her. While it is true that the order dated October 2, 1964 by agreement of the parties suspended resolution of her petition for the delivery of her shares until after the decision in the civil action for the annulment of the project of partition (Civil Case 2539) she filed on April 10, 1964; the said order lost its validity and efficacy when the herein petitioner filed on June 11, 1965 an amended complaint in said Civil Case 2539 wherein she recognized the partial legality and validity of the said project of partition insofar as the allocation in her favor of lots Nos. 3368 and 3441 in the delivery of which she has been insisting all along.

DE LOS SANTOS VS. DE LA CRUZ AGUSTINES VS. CFI

Under the agreement, the parties thereto were laboring under the erroneous belief that De Los Santos was one of the legal heirs of Pelagia de la Cruz. Since she is not an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code.

Generosa Agustines died leaving a will which was subsequently submitted for probate. Having no children, she named her surviving husband Severo Valenzuela the universal heir, but she specified some bequests. The will contained a provision directing her husband to donate a portion of her Quiririt farm not exceeding nine hectares to the Polo church. There was opposition to the approval of the will; however, after some negotiations, the sister (Josefa) and the nephews and nieces of the decedent executed an extrajudicial partition with Severo, expressing conformity with the probate of the testament and dividing the properties of the deceased. They promised specifically to respect the wishes of the testatrix, one of which was this: Sexto Encargo a mi marido que, despues de que haya percibido todos los bienes recayentes en mi herencia done ... a la xxx xxx xxx

WHETHER THE AGREEMENT IN THE PARTITION ORDER MAY BE VALIDLY AMENDED? NO. The extrajudicial partition definitely alloted a nine-hectare parcel to the Polo church. Supposing, that under the will Valenzuela's discretion included the determination of the area to be transferred and not merely the selection of the site where the nine-hectare portion is to be segregated still it seems clear that in the partition he elected or agreed that a nine-hectare portion shall be conveyed to the Polo church for masses. While it is true that in the paragraph quoted from the extrajudicial partition the phrase "a discrecion de su esposo" appears, still it must be admitted that it could not have implied a future choice by such husband, because immediately thereafter the document speaks of nine hectares, "cuyo producto se destina en sufragio delalma de la finada" without any discretionary reservations. It is obvious that "a discrecion de su esposo" meant "segun discrecion que hoy ejercita su esposo". It might also have referred to the particular location of the parcel to be separated. Proof positive that he had no choice as to the number of hectares is the fact that for eight years he never exercised it, keeping for himself in breach of trust the fruits of all the land. The will of the testatrix is law. And his action in fixing one hectare, when his wife bequeathed a portion not exceeding nine hectares is surely such abuse of discretion (if he had any) that will not easily commend itself to judicial approbation. Although under the provisions of the will Severo Valenzuela might have elected to transfer to the Polo church a portion less than nine hectares, however, in the deed of partition he agreed exercising his discretion to assign nine hectares for masses (to the Polo church). It must be emphasized that in the distribution of the decedent's assets, we must

Iglesia Catolica de Polo otra porcion que no exceda de nueve hectareas, a discrecion tambien de mi marido, del mismo terreno palayero e inculto, en el sitio de Quiririt, para que su producto se invierta en misas en sufragio de mi alma. Giving effect to the above direction, parties entered into an extrajudicial partition. Other items of the estate were apportioned among the signatories of the deed of partition, which, submitted for approval and was confirmed by the probate court in an order directing the administrator to deliver the respective shares to the heirs of the legatees after paying the corresponding inheritance taxes. No appeal was ever taken from such order. Years passed. Severo Valenzuela failed to transmit the lot or part thereof to the parish church of Polo or to the Roman Catholic

CIVIL LAW REVIEW: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION Archbishop of Manila. The Agustines filed a complaint against Valenzuela seeking the return to them of that nine-hectare lot in Quiririt, alleging his breach of trust, plus renunciation on the part of the church of Polo that had reportedly neglected to demand compliance with the beneficial legacy. Advised of this move Valenzuela hastened to submit in the testamentary proceeding, a motion in which he represented that under the will he had discretion to determine the area of land to be conveyed to the Polo church and that, exercising such discretion, he elected to assign that tract actually cultivated by the tenant named Benito Salazar in Quiririt (admittedly one hectare more or less). He asked that this assignment be declared full compliance with the testamentary directions. The other parties to the testementary proceeding were not given due notice of this petition. It was approved. After the liberation and after they had become aware of Valenzuela's act that tended to frustrate their civil action, the petitioners submitted MRs, the main theme of which was that the said last order amended the decree of distribution, which had become final long ago. All was to no avail. Hence they started this special civil action to annul the order on the concrete proposition that the court had no jurisdiction to issue it, the order of partition having become final and executory eight years before. They contend, first, that under the will, and in accordance with the partition approved by the court, the Polo church was entitled to nine hectares in the Quiririt farm of Generosa. Next that when the church repudiated the nine-hectare lot, it again became part of the whole Quiririt property which, under the partition, had been adjudicated to them. On the other hand, Severo Valenzuela's position is that the whole nine-hectare realty was awarded to him, subject to his obligation to donate to the Polo church such portion thereof as he may designate in his discretion. The intervenor, the Archbishop of Manila, representing the Polo church, shares the petitioner's opinion that a nine-hectare lot had been granted to said church. He maintains, however, that no voluntary renunciation of the legacy ever took place. RESCISSION AND NULLITY OF PARTITION ART. 1097 ART. 1098 ART. 1099 ART. 1100 ART. 1101 A partition may be rescinded or annulled for the same causes as contracts. (1073a)

6 face the deed of partition which bear's the court's fiat. The last will becomes secondary in value. Important to bear this distinction in mind, because both in Valenzuela's motion and in the court's order approving the assignment of one hectare, only the will was quoted, and not the extrajudicial partition. Valenzuela's motion invoking the will exclusively induced the court into error. A third reason to hold that the document of partition deeded nine hectares to the Polo church is the fact the court and the parties considered it a final settlement of all the rights of all concerned, the court approving it in toto and ordering the administrator to deliver to the beneficiaries their respective portions or legacies. The court's order even wrote finis to the expediente. And the parties, including Severo Valenzuela regarded it as final for eight years, until he found it necessary, for his own interests to make another move indirectly amending the final settlement. The parties deemed it final because the rights of all beneficiaries were therein defined with certainty. Therefore, the attempt by the surviving husband to modify it eight years thereafter was completely beyond the pale of the law. This should be the logical place to discuss the effects of the nondelivery of the landed legacy for so many years. But in the interest of orderly procedure that matter should be left open to debate and decision in Civil Case No. 158 of the Court of First Instance of Bulacan.

A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated. (1074a) The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. (1075) The action for rescission on account of lesion shall prescribe after four years from the time the partition was made. (1076) The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition. Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff. If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share. (1077a) An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash. (1078a) The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. (1079a) A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. (1080) A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. (1081a)

ART. 1102 ART. 1103 ART. 1104

ART. 1105

EXECUTORS AND ADMINISTRATORS ART. 1058 ART. 1059 All matters relating to the appointment, powers and duties of executors and administrators and concerning the administration of estates of deceased persons shall be governed by the Rules of Court. (n) If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient for that purpose, the provisions of Articles 2239 to 2251 on Preference of Credits shall be observed, provided that the expenses referred to in Article 2244, No. 8, shall be those involved in the administration of the decedent's estate. (n) A corporation or association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor,

ART. 1060

CIVIL LAW REVIEW: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION

administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of a ward. (n) SEC. 1, RULE 87, ROC SEC. 5, RULE 86, ROC Actions which may and which may not be brought against executor or administrator. - No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him. Claims which must be filed under the notice. - If not filed, barred; exceptions. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings. Claims not yet due or contingent, may be approved at their present value.