RESERVA TRONCAL

Something derived from the old Spanish

Civil Code which was carried over to the
New Civil Code
Still a part of the system or law on
legitimes, there is again an element of
reservation
Literally means to reserve the property
from its original line of origin
Line Tronco
Refers to the ascending or descending
line
Can also refer to the paternal line
(relatives from father side) or the
maternal line (relatives from mother
side)
Collateral line
All others who are not part of the direct
line
The Story of the Diamond Ring
The mother died leaving a diamond ring
to her daughter. Such diamond ring was
passed on from generation to generation.
The mother encouraged her daughter to
give the ring to her future children.
However, the daughter died without
having a will and having children. Thus,
the ring was passed on to her father.
The ring can be returned to the relatives in
the mother side
The purpose is to maintain the property
to the original line of family who owned
the property
Art. 891. The ascendant who inherits from
his descendant any property which the latter
may have acquired by gratuitous title from
another ascendant, or a brother or sister, is
obliged to reserve such property as he may
have acquired by operation of law for the
benefit of relatives who are within the third

degree and who belong to the line from

which said property came
Is reserva troncal similar to
fideicommissary?
In a way yes but it is more complicated
Ex. Maria inherited a diamond ring from her
mother. Maria died without a will and
children. Thus, the father inherited.
Obligation of the father is to preserve,
protect and return the ring to the original
line of family from which the property
came or where it originated
The purpose is to avoid the danger that
property existing for many years in
particular familys matrimony may pass
gratuitously to other by accident of
marriage and untimely death
Parties to reserva troncal
1) Origin/ Mediate Source
The first party to reserve troncal
The origin or mediate source can be an
ascendant like the mother, father,
grandparents or great grandparents
It can also be a brother or a sister from
whom the property is received by the
descendant, or a brother or a sister by
gratuitous title.
2) Prepositus
Can be a descendant or brother or sister
who receives the property from the
origin or mediate source.
3) Reservor/ Reservista
The other ascendant who obtained the
property from the prepositus by
operation of law.
4) Reservees/ Reservatorios
They are relatives within the 3rd degree
from the prepositus and who belongs to

the line from which the property came

and for whom the property should be
reserved by the reservor.
Who can be considered as reservees or
reservatorios?
They are the relatives from the direct
ascending line: Grandparents and Great
Grandparents
Who are relatives from the collateral line?
Brother or sister, Nephews or nieces,
Uncles or Aunts
GGGP

4
GGP

ILC

3
GP

2
F

3
U/A

1
1
4
C

B/S

GN

3
4

Who are possible reservees?

1) Grandparents
2) Brothers and sisters
3) Nephews and nieces
4) Uncles and aunts
Relatives who are not qualified:
GGGP, cousins, grand nieces

SITUATIONS:
a) What if the brothers and sisters and
grandparents are alive?
Even in reserve troncal, the principle of
the nearest excludes the farthest is
adopted
What is preferred is the relative in the
direct ascending line and not the
relatives in the collateral line
b) What if both the brother or sister and
nieces or nephews is alive, who will be
preferred?
The brother or the sister, since they are
the relatives within the 2nd degree.
c) What if the reservista died, who is
preferred? nephews or nieces or uncles
and aunts which are relatives in the
collateral line and who share the same
degree
For purposes of transferring the
properties to the reservees or to the
reservatorios, the rules in intestate
succession shall be followed
Uncles or aunts are not considered as
compulsory heirs.
However, nephews and nieces in
intestate succession are considered as
compulsory heirs.
Hence, preference must be given to
nephews or nieces because in intestate
succession they are compulsory heirs.
d) Can an Illegitimate brother or sister of
the prepositus be a reservees or
reservatorios?
No, because of the Iron curtain rule or
the successional barrier rule.
NOTE: A system of reserva troncal
applies only to the legitimate family.
NOTE: In a system of Reserva Troncal,
Reservees or reservatorios inherits from the
prepositus and not from the reservista or
reservor.

Father
Reservor

Mother
Origin

Trans. 2
Trans. 1

Daughter
Preposituss

Upon the death of the reservoir, the

property can now be transmitted to the
reservatorios
Elements of Reserva Troncal

Reservees

Trans. 3

Modes of transmission
1) From the Origin or Mediate source to the
Prepositus
Nature of transmission:
By gratuitous title (2 Kinds)
a) Donation during the lifetime of the
mediate source
b) By way of succession, particularly
testamentary succession.
2) From the Prepositus to the Reservor or
Reservista
Nature of Transmission:
By operation of law
Implication: It could only be by intestate
succession because the perpositus has no
will or descendants
If these two are present, there is no
reserve troncal
3) From the Reservor or Reservista to the
Reservees or Reservatorios
Nature of Transmission:
By provision of law
In reserva troncal there is no need for
probate proceeding for the reservor or
reservista to transfer the property to the
reservees or reservatorios because by
provision of law it is automatic

1) The prepositus acquired a property from

the origin or mediate source.
2) The acquisition is by gratuitous title
3) The prepositus died with no legitimate
issue (no descendant)
4) The prepositus died with no will
5) The same property is then inherited by
the reservor or reservista by operation of
law
6) When the reservor or reservista dies
there are relatives of the prepositus
within the third degree and who belong
to the line where the said property came
who is called as the reservees or
reservatorios.
Bar Question:
What is the reason if any, why the
Prepositus is called as the arbiter of the
reserve in the system of reserva troncal?
Because the Reservor and the Reservees
all inherit from the Prepositus
NOTE: The Reservor or reservista as to
actual possession or enjoyment of the
property, can be considered as a
usufructuary, however he can also be
considered as the owner of the property, but
subject to the following:
1) The resolutory condition that if he dies
there are reservees or reservatorios
belonging to the third degree and to the
same line who are willing to inherit and
2) The reservees or reservatorios will not
predecease the reservor or reservista

What if the prepositus has no materal

relatives?
The reservoir will become the owner of
the property
If there are no reservees/ reservatorios,
there is no such thing as a reserve troncal
Can the reservor or reservista convey or sell
the property?
Yes, but the transferee is subject to the
same resolutory condition.
What if the reservor or reservista did not
disclose the actual nature of the property to
the buyer (that the property is subject to the
system of reserva troncal) does the buyer
have a right over the property?
In a system of reserva troncal to protect
so called innocent purchaser for value in
whatever sale or conveyance the
reservable character of the property
should be properly annotated and
registered whether chattel or real
property by the reservor or reservista.
It will be treated as an encumbrance in
the property and notice to third persons
particularly buyers that such property is
subject to reservation and transfer to
other heirs.
NOTE: If there is registration and annotation
that would be the time that properties
subject to reservation under the system of
reserve troncal can be considered as valid.
Obligations of the Reservor or Reservista
1) To have the reservable character of the
property be registered and annotated.
2) During the lifetime of the Reservor or
reservista, he is obliged to make an
inventory of the properties reserved
(only if there are several properties)
including expenses for repairs and
maintenance of the property.

3) To make sure that the Reservor or

Reservista will eventually deliver the
property, the Reservees or Reservatorios
can impose a bond to the Reservor or
Reservista.
To ensure that the reservista will
transmit
The imposition of the bond should
also be annotated in the title of the
property
Can the Reservor or Reservista include the
reservable property in his will?
No, because the reservable property is
not part of his estate because of the
obligation to later deliver it to the
reservees.
Albeit he can be considered as the owner
but subject to the resolutory condition.
When should the property be delivered to
the Reservees or Reservatorios?
Upon the death of the Reservor or
Reservista
Implication of death to the Reservor or
Reservista
1. On delivery:
There is no need for a judicial and
extrajudicial demand to deliver the
property to the reservees or reservatorios
since the mode of transmission is by
provision of law. Hence the transmission
must be automatic.
No need to initiate proceedings to
compel delivery of the property
2. Upon the death of the Reservor or
reservista, the prescriptive period in order to
acquire the property will start to count.
The counting shall start from the
moment of death of the reservor
Example:
There is a reservable property by reason of
reserva troncal. After the death of the

reservor or reservista the reservees or

reservatorios did nothing to physically
acquire the property, therefore someone else
took control of the property. Is there
prescriptive period in order to acquire
ownership over the property?
Consider Art. 1132 and 1134
Movables: 4 years
Immovables: 10 years
Art. 1132. The ownership of movables
prescribes through uninterrupted possession
for four years in good faith.

What if after the death of the reservor or

reservista, the reservable property is already
within the possession of the reservees or
reservatorios, can the reservees or
reservatorios sell or convey the property?
Yes, it is already within their prerogative
since they have the right to dispose it.
Principles to follow in Reserva Troncal
1) The nearer relatives will exclude the
farther relatives.
2) The principle of representation

Art. 1134. Ownership and other real rights

over immovable property are acquired by
ordinary prescription through possession of
ten years.

Example: The daughter has two siblings one

brother and one sister, the sister has two
children. The sister died.
By way of representation the sister who
should have inherited the property can
be represented by her children.

NOTE: The reckoning point to consider any

prescriptive period will be from the moment
of the death of the reservor or reservista.

The direct line is also preferred over the

collateral line

Are the reservees or the reservista also the

owner of the reservable property?
The reservees or the reservatorios is also
considered as the owner of the property,
but as the owner of the property, the
right is a right in mere expectancy
subject to the suspensive condition that
they are still alive upon the death of the
reservor or reservista.
Even the reservees or reservatorios also
inherits from the prepositus. The actual
and physical possession of the property
accrues from the moment of the death of
the reservor or reservista.
During the lifetime of the reservor or
reservista, can the reservees or reservatorios
convey or sell their mere right in
expectancy?
No, because it will defeat the purpose of
reserva troncal which is to transmit the
property back to its original owner in the
direct line.

The principle of equality in the line also

applies if there are more than 2 relatives
who should inherit
Concepts in reserva troncal:
1) Reserva maxima
2) Reserva minima
Situation:
A daughter received from his mother a
diamond ring worth P20k. When the
daughter died, Aside from the diamond ring
she also had personal properties worth P40k.
She has a total amount of P60k. The
daughter died with no will and no children.
Under the concept of reserve maxima and
reserve minima are the reservees or
reservatorios entitled to the whole amount of
P60k?
Under the principle of Reserva Maxima
the reservees or reservatorios are entitled
to the whole P60k because the purpose

of reserva maxima is to preserve all

possible properties that should pass to
the reservees or reservatorios by
provision of law.
On the other hand, under the principle of
reserve minima the reservees or
reservatorios is only entitled to the
diamond ring.
NOTE: Reserva Maxima is more in
consonance with the rule on reserva troncal
but reserve minima is more equitable and
fair.
How to extinguish Reserva Troncal
1) Death of the Reservor or Reservista
2) Death of all the would be reservees or
reservatorios
3) Accidental loss of the reservable
property
If there is deliberate loss particularly
committed by the reservor or
reservista that is already subject to a
cause of action by the reservees or
the reservatorios.
The system of reserva troncal can
only be extinguished if the loss is
accidental.
4) Prescription
COLLATION
Three senses/concepts of collation
1) Collation is considered as computation
2) Collation is considered as imputation
3) Collation is considered as return
1) Collation in the concept of computation
Collation is a mathematical process
whereby the value of all donations made
by the decedent during his lifetime is
added to the estate after computing the
net estate

GR: all donations whether given to

compulsory heirs or strangers must be
collated or added to the net estate.
All donations given to compulsory heirs
or strangers must first be determined
whether they are considered as
inofficious.
If they are considered as inofficious they
must be proportionately reduced.
Inofficious means the donation will impair
the legitime.
When are donations considered inofficious?
Consider Art. 909 and 910. If they
impair the legitime and exceeds the free
portion
Art. 909. Donations given to children shall
be charged to their legitime.
Donations made to strangers shall be
charged to that part of the estate of which
the testator could have disposed by his last
will.
Insofar as they may be inofficious or may
exceed the disposable portion, they shall be
reduced according to the rules established by
this Code.
Art. 910. Donations which an illegitimate
child may have received during the lifetime
of his father or mother, shall be charged to
his legitime.
Should they exceed the portion that can be
freely disposed of, they shall be reduced in
the manner prescribed by this Code.
2) Collation as an imputation
Process by which the donation are
correspondingly charged or imputed to
the legitime or the free portion.

Every donation made during the lifetime of

the decedent must be imputed to the legitime
insofar as the compulsory heirs are
concerned.
For strangers the donation must be imputed
to the free portion.
Every donation inter vivos made to a
legitimate child shall be considered as an
advanced to the legitime hence, subject to
collation.
Donation inter vivos made to spouses is not
subject to collation precisely because it is
illegal.
GR: Spouses cannot donate to each other
because of undue influence on the part
of the stronger spouse.
Exception: Modest gifts in times of
family celebration
3) Collation as a return
Process whereby the donation is fully or
partly returned to the estate by the done
as insofar as it is found to be inofficious.
Inofficiousness can be understood in 2
senses namely:
1) When the legitime is impaired; and
2) When it exceeds the free portion
Art. 1063. Property left by will is not
deemed subject to collation, if the testator
has not otherwise provided, but the legitime
shall in any case remain unimpaired.
Every legacy or device whether given to
compulsory heirs or to strangers should
be imputed to the free portion and not
the legitime
Art. 1064. When the grandchildren, who
survive with their uncles, aunts, or cousins,
inherit from their grandparents in
representation of their father or mother, they
shall bring to collation all that their parents,

if alive, would have been obliged to bring,

even though such grandchildren have not
inherited the property.
They shall also bring to collation all that
they may have received from the decedent
during his lifetime, unless the testator has
provided otherwise, in which case his
wishes must be respected, if the legitime of
the co-heirs is not prejudiced.
Grandchildren who inherit from their
Grandparents by representation of their
parents must also bring to collation all
the properties received by the parents
from their grandparents
Non-collationable items / Items not
subject to collation
1) Art. 1065. Parents are not obliged to
bring to collation in the inheritance of
their ascendants any property which may
have been donated by the latter to their
children.
Reason: The parents were not the ones
who received the donation but rather
their children
2) Art. 1066. Neither shall donations to the
spouse of the child be brought to
collation; but if they have been given by
the parent to the spouses jointly, the
child shall be obliged to bring to
collation one-half of the thing donated.
Properties donated by the Parents in law
to their son or daughter in law are not
subject to collation.
Reason: Son or daughter in law is not a
compulsory heir.
Example:
Pedro and Maria are husband and wife, the
father in law of Pedro donated a house and
lot to them. Is the donation made by the
father in law of Pedro subject to collation?

 Yes, but only insofar as the share of the

legitimate child of the donor. Hence only
the share of Maria in the property is
subject to collation.
This is not an absolute rule because such
will not apply in cases of prenuptial
agreements. But if no prenuptial
agreement, there is an absolute
community of ownership

election expenses, fines, and similar

expenses shall be brought to collation.

3) Art. 1067. Expenses for support,

education, medical attendance, even in
extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts
are not subject to collation.
Reason: These are part of the natural and
moral obligation of the parents to their
children

What should be brought to collation is it the

actual thing or the value of the thing?
It is the value of the thing at the time of
donation shall be brought to collation
Consider Art. 1071 the value during the
time the donation is made

NOTE: Insofar as education it is qualified

under Art. 1068 which provides that only
elementary and high school education are
not subject to collation.
As to college and higher learning
education it is already subject to
collation provided that it will impair the
legitime or the parents expressly so
provides that such expenses will be
deducted in their legitime.
GR: not subject to collation
Exception: unless the parents so provide or
it will impair the legitime
Art. 1068. Expenses incurred by the parents
in giving their children a professional,
vocational or other career shall not be
brought to collation unless the parents so
provide, or unless they impair the legitime;
but when their collation is required, the sum
which the child would have spent if he had
lived in the house and company of his
parents shall be deducted therefrom.
Art.1069. Any sums paid by a parent in
satisfaction of the debts of his children,

4) Art.1070. Wedding gifts by parents and

ascendants consisting of jewelry,
clothing, and outfit, shall not be reduced
as inofficious except insofar as they may
exceed 1/10 of the sum which is
disposable by will.

Art. 1071. The same things donated are not

to be brought to collation and partition, but
only their value at the time of the donation,
even though their just value may not then
have been assessed.
Their subsequent increase or deterioration
and even their total loss or destruction, be it
accidental or culpable, shall be for the
benefit or account and risk of the donee.
DISINHERITANCE
Art. 915. A compulsory heir may, in
consequence of disinheritance, be deprived
of his legitime, for causes expressly stated
by law.
Legitimes as a rule cannot be impaired,
reduced or burdened by the decedent
because it is already reserved by law to so
called compulsory heirs. There is only one
known instance wherein the legitime can be
withheld to the compulsory heirs which is
disinheritance. As a consequence of
disinheritance, a compulsory heir maybe
deprived of his legitimes and also his free
portion. In effect, if the compulsory heirs are
disinherited, he gets totally nothing from the

estate of the decedent. Provided, that the

grounds for disinheritance are provided for
by law and should be clearly stated in the
will by the decedent.
Purpose for Disinheritance
1) To maintain good order and discipline in
the family.
2) To punish the ungrateful, unworthy and
unfavored compulsory heirs.
Requisites
1) Disinheritance can only be effected
through a valid will.
It only applies in testamentary
succession, if there is a valid will
particularly as to form (Extrinsic
validity).
Note: If the will is not valid even if the
will contains provisions of disinheritance
such provision will not take effect
precisely because the will is invalid.
What if the will is extrinsically valid but
later it was revoked by the testator what will
happen to the provision disinheriting the
compulsory heir?
If a will is revoked it follows that the
provision disinheriting the compulsory
heir is also revoked.
2) The cause for the disinheritance must be
specified in the will itself
The will itself must contain the provision
for disinheriting the compulsory heir.
The disinheritance must be expressly
stated or written in the will itself.
No such thing as implied disinheritance.
The disinheritance must also be absolute
It should be complete
There is no such thing as partial
disinheritance such is invalid
The heir must be completely disinherited

Example:
The estate of the father is P1M, the father
has a child, hence the child is automatically
entitled to legitime. The testator will say I
am disinheriting my legitimate child but I
am giving him only P100k of my estate. Is
the disinheritance valid?
No, there is no such thing as partial
disinheritance
The disinherited heir should not receive
anything precisely because it will defeat
the purpose of disinheritance.
3) The cause of disinheritance must be
provided for by law
The enumerated grounds for
disinheritance are exclusive
The grounds must also exist as a fact at
the time of the execution of the will.
There must be a factual issue that the
compulsory heirs actually committed
such grounds.
4) The truth of the cause for disinheritance
must be proven by other heirs of the
testator if there are any if the
disinherited heir should deny it.
The other heirs shall testify
Reason: Because at that time the testator
is already dead and in order to
substantiate the grounds for
disinheritance the other heirs must
support the wishes of the testator.
NOTE: Disinheritance not only includes
the legitime but also the free portion
When do we consider the inheritance to be
ineffective or invalid?
1) No cause for disinheritance was stated in
the will
2) The cause for disinheritance is false
3) The cause for disinheritance is illegal or
not legal
4) Reconciliation between the testator and
the compulsory heir results to invalidity
of disinheritance

 Reconciliation must be during the

lifetime of the testator.
BAR QUESTION:
Differentiate preterition from invalid or
ineffective disinheritance?
Preterition

Disinheritance is one cause to allow

representation
Representation happens when the
representatives will inherit in default of
the heir originally instituted.
Representation is proper whenever there
is disinheritance. The two grandchildren
will therefore inherit by way of
representation.

Invalid/ineffective
disinheritance
Results to the
The disinherited heir will
Problem:
annulment of the
still get his legitime
The estate is P1M, the legitime is P500k, the
institution of heirs
precisely because the
legitimate child was disinherited the P500k
except for devices or
disinheritance was
will then go to the 2 grandchildren each
legacies that are not
considered invalid or
having P250k.
inofficious
ineffective
Devices or legacies shall be respected for as long as What if the only child was disinherited, the
they are not inofficious
2 grandchildren represented him in the estate
but, after the testators death the two
grandchildren decided to give the usufruct to
Reconciliation
the father. Is it possible?
Must refer to past acts which motivated
It is not allowed. It can be subject to a
the testator to disinherit the compulsory
challenge precisely because it will defeat
heir. Reconciliation should not include
the purpose of disinheritance.
future acts.
What you cannot do directly you cannot
Needs no special form
do indirectly. So, even the usufruct
There is actually no requirement in law
cannot be given to the disinherited heir.
that the reconciliation should be in
writing
Representation only applies in the direct
Even an implied reconciliation is
descending line. There is no right of
allowed by law
representation in the direct ascending line.
Effects of reconciliation
Example:
1) Deprives the testator of the right to
The testator has no children, but he was
disinherit the compulsory heirs for past
survived by his parents and grandparents.
acts.
The testator disinherited his parents. Can the
2) Renders the disinheritance ineffective
disinherited parents be represented by the
grandparents?
No, because there is no representation in
Problem:
the direct ascending line
The testator is survived by 1 legitimate
child, and two grandchildren. The child was
disinherited by the testator. What would be
the effect or logical consequence of the
disinheritance as far as the two
grandchildren are concern?

Grounds for disinheritance

(REFER TO ATTY. BONIs TABLE 1)
Grounds to disinherit children and
descendants (Art.919)
1) Conviction of attempt against the life of
the testator, his or her spouse,
descendants or ascendants.
If the case is still pending, this ground
for disinheritance is unavailable because
it requires final conviction in court.
Hence, all processes required by law
must already been used including
appeals.
What are the crimes involved?
Frustrated or attempted parricide, murder,
homicide, infanticide
Crimes by dolo there is criminal intent
The word attempt may refer to the
attempted or frustrated stage
Do not include crimes resulting to
imprudence or negligence
Question:
While A was driving his car backwards, he
hit his father. Can A be disinherited by his
father?
No, there was no intent to kill
2) The disinherited heir accused the testator
of a crime punishable by 6 years or more
if found to be groundless.
What is the context of the accusation?
It should be under the context of
criminal prosecution of the testator.
It means an actual case is filed against
the testator and after that the testator is
acquitted based on the decision of the
court that the accusation is groundless.
If the testator is acquitted based on
reasonable doubt, this ground is
inapplicable.

3) Conviction of adultery or concubinage

with the spouse of the testator.
Incestuous relationship between the
child and the spouse of the testator
There must be an actual case filed and
final conviction is required.
4) When a child or descendant by fraud,
violence, intimidation, or undue
influence causes the testator to make a
will or to change one already made.
Also a ground for unworthiness which
can annul the will intrinsically.
5) A refusal without justifiable cause to
support the parent or ascendant
6) Maltreatment of the testator by word or
deed, by the child or descendant
No required criminal action or case to
allege this ground for disinheritance.
7) When a child or descendant leads a
dishonorable or disgraceful life.
No need to file a case to prove that the
child or descendant leads a dishonorable
or disgraceful life
8) Conviction of a crime which carries with
it the penalty of civil interdiction
Civil interdiction is the suspension of
certain rights brought about by
conviction in a criminal case
Grounds to disinherit parents or
ascendants
1) When the parents have abandoned their
children or induced their daughters to
live a corrupt or immoral life, or
attempted against their virtue
Includes crimes such as rape and acts of
lasciviousness
Abandonment includes relinquishment
of parental authorities.

 No required criminal action or civil

action.
2) Conviction of attempt against the life of
the testator, his or her spouse,
descendants or ascendants
3) The disinherited heir accused the testator
of a crime punishable by six years or
more if found to be groundless
4) Conviction of adultery or concubinage
with the spouse of the testator
5) When the parent or ascendant by fraud,
violence, intimidation, or undue
influence causes the testator to make a
will or to change one already made
6) Loss of parental authority
Refers to Art. 229 to 232 of the family
code (Instances where parental authority
maybe loss)
Instances where parental authority may
be loss
a) Adoption
b) General guardianship
c) Absence of the parent
d) Parental abuse
e) Conviction with civil interdiction
7) Refusal to support the children or
descendants without justifiable cause
8) An attempt by one of the parents against
the life of the other, unless there has
been a reconciliation between them.
Requires no conviction in order to be
invoked as a ground for disinheritance.
For as long as it exist as a fact then it can
be invoked as a ground for
disinheritance

Grounds to disinherit spouse

1) Conviction of attempt against the life of
the testator, his or her spouse,
descendants or ascendants
2) When the spouse has accused the testator
of a crime for which the law prescribes
imprisonment of six years or more, and
the accusation has been found to be
false;
3) When the spouse by fraud, violence,
intimidation, or undue influence cause
the testator to make a will or to change
one already made
4) When the spouse has given cause for
legal separation
Question:
Under this ground, is final decree of legal
separation necessary?
No need for a final decree of legal
separation. For as long as the spouse
gave causes to file a case for legal
separation and if the cause existed as a
fact then the guilty spouse can be
disinherited
5) When the spouse has given grounds for
the loss of parental authority
There is no need for a civil case to be
filed
6) Unjustifiable refusal to support the
children or the other spouse
When will the disinheritance be revoked?
a) If there is reconciliation
b) If there is a new will revoking the priorly
executed will containing a provision
disinheriting a compulsory heir

LEGACIES AND DEVISES

Legacy
specific gift of personal property
Devise
specific gift of real property
Should the testator give legacies or devises,
where should it come from?
It should come from the free portion of
the estate.
Thus, legacies and devises only applies
in testamentary succession as far as free
portion is concerned. Legacies and
devises are not applicable in intestate
succession.
Who has the duty to give the devises and
legacies?
Upon the death of the testator, if no one
is appointed, it will be the estate as
represented by the executor or
administrator who is obliged to give the
legacies or devises.
Can the compulsory heirs be assigned with
the task of giving the legacies and devices in
the will?
Yes, for as long as in the performance of
such obligation, their legitimes will not
be impaired.
NOTE: Legacies and devices cannot go
beyond the free portion of the estate. If it
will go beyond the free portion such will be
subject to proportionate reduction.
What is the concept of a sub-legacy or a
sub-devise?
Sub-legacy or sub-devise
It is when the legatee or devisee is
charged by the testator to give further
legacies or devises to other persons.

Example:
I will give A a legacy of P10k provided he
will give B P5k.
This is considered a sub-legacy which is
also considered as a conditional
testamentary disposition. Because A will
only receive P10K provided that he will
give B P5k.
Indeterminate or Generic Legacy or
Devise
Art. 928. The heir who is bound to deliver
the legacy or devise shall be liable in case of
eviction, if the thing is indeterminate and is
indicated only by its kind.
Example:
I will give a legacy in the form of a car to
my friend. The car was not specifically
described by the testator. What kind of car
should be delivered?
RULE: The executor or administrator of
the estate should deliver the car, which is
not of superior quality but not also of
inferior quality.
OTHER RULE:
The legatee should not be evicted
Means that full possession and
ownership of the indeterminate or
generic legacy should be transferred to
him. The ownership of the specific
property should be given to the legatee.
However, if the legacy given is specific
or determinate, the heir who is bound to
deliver such legacy is not liable of
eviction.
What is the effect if the legacy or device
given belongs to another?
Such legacy or devise is void, if the
testator erroneously believes that he is
the owner of the thing to be given. But it
can be considered as valid when it
subsequently during the lifetime of the
testator that property becomes his.

Art. 930. The legacy or devise of a thing

belonging to another person is VOID, if the
testator erroneously believed that the thing
pertained to him. But if the thing
bequeathed, though not belonging to the
testator when he made the will, afterwards
becomes his, by whatever title, the
disposition shall take effect.
Can the testator order some of his heirs to
acquire the property in order that it will be
given as legacy or devise?
Yes, the testator can do that for as long
as the heir should buy the property for a
just value or reasonable price and it will
not impair their legitimes.
Art. 932. The legacy or devise of a thing
which at the time of the execution of the will
already belonged to the legatee or devisee
shall be ineffective, even though another
person may have some interest therein.
If the testator expressly orders that the thing
be freed from such interest or encumbrance,
the legacy or devise shall be valid to that
extent.
Pertains to a legacy or device already
belonging to the legatee or devisee.
Effect: The legacy or devise of a thing
already belonging to the legatee or
devisee at the time of the execution of
the will is already ineffective precisely
because you cannot give something
which you do not own.
What if the legacy/ devise is already owned
by the legatee or devisee, and then they
conveyed and sold the legacy or devise
during the lifetime of the testator and again
reacquired the property. What would be the
effect?
The legacy or devise shall be without
effect even if the legatee or devisee
subsequently reacquires it

Art. 933. If the thing bequeathed belonged

to the legatee or devisee at the time of the
execution of the will, the legacy or devise
shall be without effect, even though it may
have subsequently alienated by him.
If the legatee or devisee acquires it
gratuitously after such time, he can claim
nothing by virtue of the legacy or devise; but
if it has been acquired by onerous title he
can demand reimbursement from the heir or
the estate.
Art. 934. If the testator should bequeath or
devise something pledged or mortgaged to
secure a recoverable debt before the
execution of the will, the estate is obliged to
pay the debt, unless the contrary intention
appears.
The same rule applies when the thing is
pledged or mortgaged after the execution of
the will.
Any other charge, perpetual or temporary,
with which the thing bequeathed is
burdened, passes with it to the legatee or
devisee.
Art. 934
Pertains to legacy of a thing pledged or
mortgaged to secure a debt
It should exist before or after the
execution of the will.
The estate must pay the debt, however
other charges like easements, usufructs,
leases which are real rights, that
obligations should already be paid by the
legatee or devisee
Art. 935. The legacy of a credit against a
third person or of the remission or release of
a debt of the legatee shall be effective only
as regards that part of the credit or debt
existing at the time of the death of the
testator.

In the first case, the estate shall comply with

the legacy by assigning to the legatee all
rights of action it may have against the
debtor. In the second case, by giving the
legatee an acquittance, should he request
one.
In both cases, the legacy shall comprise all
interests on the credit or debt which may be
due the testator at the time of his death.
Art. 935
Legacy of credit or remission or release
of a debt.
Rules to consider:
1) The debt must be existing at the time of
the testators death.
2) If the testator releases the debt it must
include the principal and the interest of
the debt.
What if in the will of the testator, he is
already releasing the debt in favour of the
debtor, but during his lifetime he still filed a
case to collect the debt, what would be the
effect?
There is implied revocation by operation
of law
Art. 937. A generic legacy of release or
remission of debts comprises those existing
at the time of the execution of the will, but
not subsequent ones.
If the testator will say Im forgiving all
debts, the words used is generic, it will
comprise all credits owed to the testator.
Legacy to the debtor to the thing pledged
Art. 936. The legacy referred to in the
preceding article shall lapse if the testator,
after having made it, should bring an action
against the debtor for the payment of his
debt, even if such payment should not have
been effected at the time of his death.

The legacy to the debtor of the thing pledged

by him is understood to discharge only the
right of pledge.
If only the pledge is given as a legacy,
the pledge is extinguished but the debt
remains.
Art. 936 does not only apply to pledge,
but it also applies to mortgage,
antichresis or other security.
Legacy or devise to a creditor
Art. 938. A legacy or devise made to a
creditor shall not be applied to his credit,
unless the testator so expressly declares.
In the latter case, the creditor shall have the
right to collect the excess, if any, of the
credit or of the legacy or devise.
If the testator is giving something to his
creditor by way of legacy or devise does it
necessarily mean that the testator is already
paying his debt?
No, it will not be applied to the credit
unless the testator so declares.
There should be a clear instruction
coming from the testator that such
legacy or devise is to be considered as
payment to his debt.
Art.939. If the testator orders the payment of
what he believes he owes but does not in
fact owe, the disposition shall be considered
as not written. If as regards a specified debt
more than the amount thereof is ordered
paid, the excess is not due, unless a contrary
intention appears.
The foregoing provisions are without
prejudice to the fulfillment of natural
obligations.

What if the testator will say pay P1M to A,

who is my creditor. It turns out that the
testator has no debt to A. What would be the
effect?
If he does not owe it, it is VOID.
What if the testator will say Ill give P1M to
B as payment for my debt. However it turns
out that the debt is only php.800k, in short
there is an excess of P200k. What would be
the effect?
The estate has a right to demand
reimbursement for the excess.
Alternative legacies
Article 940. In alternative legacies or
devises, the choice is presumed to be left to
the heir upon whom the obligation to give
the legacy or devise may be imposed, or the
executor or administrator of the estate if no
particular heir is so obliged.
If the heir, legatee or devisee, who may have
been given the choice, dies before making it,
this right shall pass to the respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except
as herein provided, the provisions of this
Code regulating obligations of the same kind
shall be observed, save such modifications
as may appear from the intention expressed
by the testator.
What is an alternative legacy?
A choice is given to the legatee
Example:
I gave to A P100k or a car at the option of
another person.
Art. 941. A legacy of generic personal
property shall be valid even if there be no
things of the same kind in the estate.

A devise of indeterminate real property shall

be valid only if there be immovable property
of its kind in the estate.
The right of choice shall belong to the
executor or administrator who shall comply
with the legacy by the delivery of a thing
which is neither of inferior nor of superior
quality.
Art. 942. Whenever the testator expressly
leaves the right of choice to the heir, or to
the legatee or devisee, the former may give
or the latter may choose whichever he may
prefer.
Art. 943. If the heir, legatee or devisee
cannot make the choice, in case it has been
granted him, his right shall pass to his heirs;
but a choice once made shall be irrevocable.
Art. 944. A legacy for education lasts until
the legatee is of age, or beyond the age of
majority in order that the legatee may finish
some professional, vocational or general
course, provided he pursues his course
diligently.
A legacy for support lasts during the lifetime
of the legatee, if the testator has not
otherwise provided.
If the testator has not fixed the amount of
such legacies, it shall be fixed in accordance
with the social standing and the
circumstances of the legatee and the value of
the estate.
If the testator or during his lifetime used to
give the legatee a certain sum of money or
other things by way of support, the same
amount shall be deemed bequeathed, unless
it be markedly disproportionate to the value
of the estate.

Art. 947. The legatee or devisee acquires a

right to the pure and simple legacies or
devises from the death of the testator, and
transmits it to his heirs. (relate w/ Arts.777
and 948)

POTENTIAL FINAL EXAM QUESTION:

Priority of preference
1. Remuneratory
Consist of the moral obligation of the
testator.

Art. 948. If the legacy or device is of a

specific and determinate thing pertaining to
the testator, the legatee or devisee acquires
the ownership thereof upon the death of the
testator, as well as any growing fruits, or
unborn offspring of animals, or uncollected
income; but not the income which was due
and unpaid before the latter's death.

Example:
During the lifetime of the testator, the
testator met an vehicular collision, during
the collision someone pulled him in the car
before the car explodes. The person who
pulled the testator should be given a legacy
or devise by way of the moral obligation of
the testator

From the moment of the testator's death, the

thing bequeathed shall be at the risk of the
legatee or devisee, who shall, therefore, bear
its loss or deterioration, and shall be
benefited by its increase or improvement,
without prejudice to the responsibility of the
executor or administrator.

2. Preferential legacies or devises

Order of Preference
Art. 950. If the estate should not be
sufficient to cover all the legacies or devises,
their payment shall be made in the following
order:
1) Remuneratory legacies or devises;
2) Legacies or devises declared by the
testator to be preferential;
3) Legacies for support;
4) Legacies for education;
5) Legacies or devises of a specific,
determinate thing which forms a part
of the estate;
6) All others pro rata.
Art. 950
Contemplates a situation when the estate
particularly the free portion is not
sufficient to cover all legacies and
devises.
The order is exclusive.

What are preferential legacies or devises?

Those declared by the testator in the will
to be preferred.
NOTE: Always follow the wishes of the
testator
3. Legacies or devises for Support
4. Legacies or devises for education
5. Legacies or devises for specific or
determinate thing in the estate
6. All others pro rata
How do we deliver legacies or devises?
Rules to consider:
1) The thing bequeathed shall be delivered
with all its accessions and accessories
and in the condition in which it may be
upon the death of the testator. (Art. 951)
2) If the thing is specific or determinate the
very thing should be delivered and not
the value.
3) Legacies in money shall be paid in cash.
In our modern times, check is good as
cash, provided it is managers check and
not ordinary checks
4) Expenses of delivery are for the account
of heir or estate but without affecting the
heirs legitime.

Rules on acceptance of legacy or devise

1. It should be accepted after the death of
the testator and not before.
2. Gift cannot be accepted in part if it is
onerous
3. If the legacy or devise is not accepted, it
should be emerged or return back to the
testator, subject to the rule on
substitution and accretion.
Art. 954. The legatee or devisee cannot
accept a part of the legacy or devise and
repudiate the other, if the latter be onerous.
Should he die before having accepted the
legacy or devise, leaving several heirs, some
of the latter may accept and the others may
repudiate the share respectively belonging to
them in the legacy or devise.
Article 956. If the legatee or devisee cannot
or is unwilling to accept the legacy or
devise, or if the legacy or devise for any
reason should become ineffective, it shall be
merged into the mass of the estate, except in
cases of substitution and of the right of
accretion.
Art. 955. The legatee or devisee of two
legacies or devises, one of which is onerous,
cannot renounce the onerous one and accept
the other. If both are onerous or gratuitous,
he shall be free to accept or renounce both,
or to renounce either. But if the testator
intended that the two legacies or devises
should be inseparable from each other, the
legatee or devisee must either accept or
renounce both.
Any compulsory heir who is at the same
time a legatee or devisee may waive the
inheritance and accept the legacy or devise,
or renounce the latter and accept the former,
or waive or accept both.

Can the compulsory heir waive his legitime?

Yes
Can the compulsory heir waive also a legacy
or a devise if he is a beneficiary out of the
free portion?
Yes, because no one is forced to accept
an inheritance whether out of the
legitime or the free portion.
Can the compulsory heir waive his legitime
but accept the free portion?
Yes
Can the compulsory heir waive the free
portion but accept his legitime?
Yes
NOTE: Under Art. 955 the heir can accept
the legitime and the free portion, he can also
waive the legitime and the free portion or
both.
It is within the discretion of the
compulsory heir to accept both the
legitime and the free portion or to accept
only the legitime but to waive the free
portion or to accept the free portion but
to waive the legitime or to waive both
the legitime or the free portion.
Ineffective devise or legacy
Article 957. The legacy or devise shall be
without effect:
1) If the testator transforms the thing
bequeathed in such a manner that it
does not retain either the form or the
denomination it had;
2) If the testator by any title or for any
cause alienates the thing bequeathed
or any part thereof, it being
understood that in the latter case the
legacy or devise shall be without
effect only with respect to the part
thus alienated. If after the alienation
the thing should again belong to the

testator, even if it be by reason of

nullity of the contract, the legacy or
devise shall not thereafter be valid,
unless the reacquisition shall have
been effected by virtue of the exercise
of the right of repurchase;
3) If the thing bequeathed is totally lost
during the lifetime of the testator, or
after his death without the heir's fault.
Nevertheless, the person obliged to
pay the legacy or devise shall be
liable for eviction if the thing
bequeathed should not have been
determinate as to its kind, in
accordance with the provisions of
article 928.
What are ineffective devises or legacies?
1) If the testator transforms the thing such
that it does not retain its original form or
denomination.
What if the devise is a parcel of land, during
the lifetime of the testator, he erected a
multi-million condominium. Does it change
the denomination of the original value of the
property?
It does not retain its original form.
2) If the testator alienates the thing by any
title or by any cause.
Reacquisition of the thing by the testator
does not make the legacy or devise valid
unless it is effected by the right of
repurchase.
3) If the thing is totally loss during the
lifetime or after the death of the testator
without any fault on the part of the
testator.
Art. 958. A mistake as to the name of the
thing bequeathed or devised, is of no
consequence, if it is possible to identify the
thing which the testator intended to bequeath
or devise.

Article 959. A disposition made in general

terms in favor of the testator's relatives shall
be understood to be in favor of those nearest
in degree.
Example:
I give this car to my relative. The relative
was not specified. Who will you consider as
the proper beneficiary of the free portion if
the testator did not specify the name of the
relative?
It should be understood in favour of
those nearest in degree.
The nearest relative excludes the farthest
relative.
NOT INCLUDED IN THE QUIZ
INTESTATE SUCCESSION
Art. 960. Legal or intestate succession takes
place:
(1) If a person dies without a will, or
with a void will, or one which has
subsequently lost its validity;
(2) When the will does not institute an
heir to, or dispose of all the property
belonging to the testator. In such
case, legal succession shall take
place only with respect to the
property of which the testator has
not disposed;
(3) If the suspensive condition attached
to the institution of heir does not
happen or is not fulfilled, or if the
heir dies before the testator, or
repudiates the inheritance, there
being no substitution, and no right
of accretion takes place;
(4) When the heir instituted is
incapable of succeeding, except in
cases provided in this Code.

What is legal succession or intestate

succession or succession by operation of
law?
Kind of succession prescribed by law in
the absence of a valid will
The law will make a presumed will for
the testator because it would be the law
that would declare the distribution of the
estate
The estate is treated as the whole free
portion but it will all be distributed to the
compulsory heirs
There is a presumed will because of the
unexpected death that may come to any
person

2) No institution of heirs in the will or the

will does not totally dispose all the
properties
No indicated beneficiary in the
will
Did not dispose the whole estate
or there was partial intestacy

Instances where legal succession will take

place:
1) A person dies without a will or a void
will or a will which has lost its validity

6) Fulfillment of a resolutory condition

3) A suspensive condition does not happen

4) Predecease, repudiation, incapacity of
the heir and there is no substitution or
accretion
5) Incapacity of all heirs to succeed

7) Expiration of the resolutory term

Who are intestate heirs?

.