When partition cannot be demanded
Partition cannot be demanded when:
1. Expressly Prohibited by testator for a period not more than 20
years
2. Co-heirs Agreed that estate not be divided for period not more
than 10 years, renewable for another 10 yrs
3. Prohibited by law
4. To partition estate would render it Unserviceable for use for
which it was intended
What is collation?
It is the process of adding the value of thing donated to the net
value of hereditary estate. To collate is to bring back or return to
the hereditary mass, in fact or fiction, property which came from
the estate of the decedent, during his lifetime, but which the law
considers as an advance from the inheritance. Collation is
applicable to both donations to compulsory heirs and donations
to strangers.
General Rule:
Compulsory heirs are obliged to collate.
Exception:
1. When testator should have so expressly provided;
2. When compulsory heir repudiates his inheritance
What are the properties that are to be collated?
1. Any property/right received by gratuitous title during testators
lifetime
2. All that may have been received from decedent during his
lifetime
3. All that their parents have brought to collation if alive
What are the properties not subject to collation?
1. Absolutely no collation expenses for support, education
(elementary and secondary only), medical attendance, even in
extra-ordinary illness, apprenticeship, ordinary equipment or
customary gifts.
2. Generally not imputed to legitime:
a. Expenses incurred by parents in giving their children
professional, vocational, or other career unless the parents so
provide, or unless they impair the legitime.
b. Wedding gifts by parents and ascendants consisting of
jewelry, clothing and outfit except when they exceed 1/10 of the
sum disposable by will.
Note: Only the value of the thing donated shall be brought to
collation. This value must be the value of the thing at the time of
the donation.
REPUDIATION
What are the ways by which the repudiation of the
inheritance, legacy or devise may be made?
1. By means of a public instrument
2. By means of an authentic instrument
3. By means of a petition presented to the court having
jurisdiction over the testamentary or intestate proceedings.
What is the effect of repudiation if an heir is both
a testate and legal heir?
If an heir is both a testate and legal heir, the repudiation of the
inheritance as a testate heir, he is understood to have repudiated
in both capacities. However, should he repudiate as a legal heir,
without knowledge of being a testate heir, he may still accept the
inheritance as a testate heir.
What is the iron-curtain rule?
Art. 992 of the Civil Code provides that illegitimate children
cannot inherit ab intestato from the legitimate children and
relatives of his mother or father. Legitimate children and relatives
cannot inherit in the same way from the illegitimate child.
Note: The iron curtain rule only applies in intestate succession.
There is a barrier recognized by law between the legitimate
relatives and the illegitimate child so that one cannot inherit from
the other and vice-versa.
Rationale: The law presumes the existence of antagonism
between the illegitimate child and the legitimate relatives of his
parents.
What is right of representation?
Right created by fiction of law where the representative is raised
to the place and degree of the person represented, and acquires
the rights which the latter would have if he were living or could
have inherited.
What is the effect of representation?
Whenever there is succession by representation, the division of
the estate shall be made per stirpes, in such manner that the
representative or representatives shall not inherit more than what
the person they represent would inherit, if he were living or could
inherit. (Art. 974)
Note: Per stirpes means inheritance by group, all those within
the group inheriting in equal shares. Representation is superior
to accretion.
When does right of representation arise?
Representation may arise either because of:
1. death,
2. incapacity, or
3. disinheritance.
When is right or representation not available?
1. As to compulsory heirs: In case of repudiation, the one who
repudiates his inheritance cannot be represented. Their own
heirs inherit in their own right.
2. As to voluntary heirs:
Voluntary heirs, legatees and devisees who:
a. Predecease the testator; or
b. Renounce the inheritance cannot be represented by their own
heirs, with respect to their supposed inheritance.
Does right of representation apply in the collateral line?
Right of representation takes place only in favor of children of
brothers or sisters, whether full or half blood and only if they
concur with at least one uncle or aunt.
Note: This rule applies only when the decedent does not have
descendants.
Does the right of representation apply to adopted
children?
No. The right of representation cannot be invoked by adopted
children because they cannot represent their adopting parents to
the inheritance of the latters parents.
Reason: The law does not create any relationship between the
adopted child and the relatives of the adopting parents, not even
to the biological or legitimate children of the adopting parents.
Note: Under R.A. 8552 or the Domestic Adoption Law, the
adopted child and the adopting parents have reciprocal
successional rights.
What is the rule on equal division of lines?
General Rule: Intestate heirs equal in degree inherit in equal
shares.
Exception:
1. In the ascending line, the rule of division by line is to the
maternal line and to the paternal line, and within each line, the
division is per capita.
2. In the collateral line, the full-blood brothers/sisters will get
double that of the half-blood.
3. The division in representation, where division is per stirpes
the representative divide only the share pertaining to the person
represented.
Note: The share of an illegitimate child is of the share of a
legitimate one. Full blood brother or sister is entitled to double
the share of half brother or sister (Art. 1006). Compulsory heirs
shall, in no case, inherit ab intesto less than their legitime as
provided in testamentary succession.
What is legal or intestate succession?
Legal or intestate succession is that which is effected by
operation of law in default of a will. It is legal because it takes
place by operation of law; it is intestate because it takes place in
the absence or in default of a last will of the decedent. (Jurado,
p. 377)
What is the formula for application of inheritance?
The following are applied successively:
1. Institution of an heir (Bequest, in case of legacies or devises)
2. Substitution, if proper
3. Representation, if applicable
4. Accretion, if applicable
5. Intestacy, if all of The above are not applicable
Can there be a valid will which does not institute
an heir?
Yes, a will is valid even if it contains only a provision for
disinheritance or if only legacies and devises are contained in
the will.
Who are intestate heirs?
1. Legitimate children or descendants
2. Illegitimate children or descendants
3. Legitimate parents or ascendants
4. Illegitimate parents
5. Surviving spouse
6. Brothers and sisters, nephews and nieces
7. Other collateral relatives up to the 5th degree
8. The State.
What is probate?
It is a special proceeding mandatorily required for the purpose of
establishing the validity of a will.
No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. (Art.
838)
Note: Probate does not deal with the intrinsic validity of the
testamentary provisions. Even if only one heir has been
instituted, there must still be a judicial order of adjudication.
Even if a will has already been probated, if later on a subsequent
will is discovered, the latter may still be presented for probate, as
long as two wills can be reconciled.
Does prescription apply to probate of wills?
The statute of limitations is not applicable to probate of wills
(Imprescriptibility of Probate)
Rationale: Probate proceedings are not established in the
interest of the surviving heirs, but primarily for the
protection of the expressed wishes of the testator.
What are the characteristics of a probate
proceeding?
1. Special proceeding;
2. Proceeding in rem;
3. Not contentious litigation;
4. Mandatory;
5. Imprescriptible;
When the disposition is subject to a term, what
should be done by the instituted heirs or legal
heirs so that they can enjoy possession of the
property?
If the disposition is subject to a:
1. Suspensive term The legal heirs can enjoy possession of
the property until the expiration of the period but they must put
up a bond (caucion muciana) in order to protect the right of the
instituted heir.
2. Resolutory term The legal heirs can enjoy possession of the
property but when the term arrives, he must give it to the legal
heirs. The instituted heir does not have to file a bond.
What is fideicommissary substitution?
Also known as indirect substitution, it is a substitution by virtue of
which the fiduciary or first heir instituted is entrusted with the
obligation to preserve and transmit to a second heir the whole or
part of the inheritance.
Note: For its validity and effectivity, such substitution does not go
beyond one degree from the heir originally substituted and
provided further, that the fiduciary or first heir and the second
heir are living at the time of death of the testator.
What are the conditions for a valid
fideicommissary substitution?
1. That the institution does not go beyond one degree from the
heir originally instituted;
2. That the substitution be expressly made;
3. That both the fiduciary and beneficiary be living at the time of
the testators death;
4. That it should be imposed on the free portion and not on the
legitime.
What are the elements/requisites of
fideicommissary substitution?
1. There must be a first heir or fiduciary;
2. An absolute obligation is imposed upon the fiduciary to
preserve and to transmit to a second heir the property at a given
time;
3. There is a second heir who must be one degree from the first
heir;
4. The first and second heir must both be living and qualified at
the time of the death of the testator.
What is the effect if the fideicommissary
predeceases the fiduciary?
If the fideicommissary predeceases the fiduciary, but survives
the testator, his rights pass to his own heirs.
What is the effect of the nullity of the
fideicommissary substitution?
The nullity of the fideicommissary substitution does not prejudice
the validity of the institution of the heirs first designated; the
fideicommissary clause shall simply be considered as not
written.
What is reserva troncal?
Reserva troncal 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. (Art. 891)
Purpose:
To prevent persons who are outsiders to the family from
acquiring, by chance or accident, property which otherwise
would have remained with the said family. In short, to put back
the property to the line from which it originally came.
Note: Other terms used to refer to reserva troncal:
1. Lineal
2. Familiar
3. Extraordinaria
4. Semi-troncal
5. Pseudo-troncal
What are the requisites that must exist in order
that a property may be impressed with a
reservable character?
1. That the property was acquired by a descendant (called
praepositus or propositus) from an ascendant or from a brother
or sister by gratuitous title when the recipient does not give
anything in return;
2. That said descendant (praepositus) died without an issue;
3. That the same property (called reserva) is inherited by
another ascendant (called reservista) by operation of law
(either through intestate or compulsory succession) from the
praepositus; and
4. That there are living relatives within the third degree counted
from the praepositus and belonging to the same line from where
the property originally came (called reservatarios). (Art. 891;
Chua v. CFI of Negros Occidental, Branch V, 78 SCRA 412;
Rabuya, Civil Law Reviewer, pp. 634-635)
Does the reservista own the reservable property?
The reservista is an absolute or full owner, subject to a resolutory
condition. If the resolutory condition is fulfilled, the reservistas
ownership of the property is terminated.
Resolutory condition: If at the time of the reservistas death,
there should still exist relatives within the third degree
(reservatarios) of the propositus and belonging to the line from
which the property came.
Note: The reservable property is not part of the estate of the
reservista.
When does the reservatario acquire the right over
the reservable property?
Upon the death of the reservista, the reservatario nearest the
decedent propositus becomes, automatically and by operation of
law, the absolute owner of the reservable property. (Cano v.
Director of Lands)
Is there right of representation in reserva troncal?
Yes. There is representation in reserva troncal, but the
representative must also be within the third degree from the
propositus. (Florentino v. Florentino)
Who are the compulsory heirs in the direct line?
a. Legitimate children and descendants with respect to their
legitimate parents or ascendants;
b. Legitimate parents ot ascendants, with respect to their
legitimate children and descendants;
c. Illegitimate children (Recognized)
d. The father or mother of illegitimate children
Note: The surviving spouse is not included.
Is an adopted child a compulsory heir?
Legitimate children includes adopted children and legitimated
children. Under R.A. 8552 or the Domestic Adoption Law
adopted children have the same rights granted to the legitimate
children. Adopted children, for all intents and purposes are
considered as legitimate children. Hence, the adopted children
can already exclude legitimate parents/ascendants.
What is preterition?
Preterition is the omission in testators will of one, some or all of
the compulsory heirs in the direct line, whether living at the time
of execution of the will or born after the death of the testator. (Art.
854)
What does born after the death of the testator
mean?
It simply means that the omitted heir must already be conceived
at the time of death of the testator but was born only after the
death of the testator.
What are the requisites of preterition?
1. There is a total omission in the inheritance;
2. The person omitted is a compulsory heir in the direct line;
3. The omitted compulsory heir must survive the testator, or in
case the compulsory heir predeceased the testator, there is a
right of representation;
4. Nothing must have been received by the heir by gratuitous
title.
What are the effects of preterition?
1. Preterition annuls the institution of heirs;
2. Devices and legacies are valid insofar as they are not
inofficious;
3. If the omitted compulsory heir dies before testator, institution
shall be effectual, without prejudice to right of representation
What is the effect of preterition on the will itself?
General Rule: The effect of annulling the institution of heirs will
be, necessarily, the opening of a total intestacy except that
proper legacies and devises must be respected. Here, the will is
not abrogated.
Exception: If the will contains a universal institution of heirs to the
entire inheritance of the testator, the will is totally abrogated.
Reason: The nullification of such institution of the universal heirs
without any other testamentary disposition in the will amounts to
a declaration that nothing at all was written.
What are the rights of the preterited heirs?
They are entitled not only to their shares of the legitime but also
to those of the free portion which was not expressly disposed of
by the testator by way of devises and legacies.
HOLOGRAPHIC WILLS
What are the formalities required in the execution
of holographic will?
1. Signed by testator himself
2. Executed in a language or dialect known to him (Art. 804)
3. Entirely written
4. Dated;
Note: In case of any insertion, cancellation, erasure or alteration
in a holographic will, the testator must authenticate the same by
his full signature. (Art. 814)
What are the effects of insertions or interpolations
made by a 3rd person?
General Rules:
When a number of erasures, corrections, cancellation, or
insertions are made by the testator in the will but the same have
not been noted or authenticated with his full signature, only the
particular words erased, corrected, altered will be invalidated, not
the entirety of the will.
Exception:
1. Where the change affects the essence of the will of the
testator; Note: When the holographic will had only one
substantial provision, which was altered by substituting the
original heir with another, and the same did not carry the
requisite full signature of the testator, the entirety of the will is
voided or revoked.
Reason: What was cancelled here was the very essence of the
will; it amounted to the revocation of the will. Therefore, neither
the altered text nor the original unaltered text can be given effect.
(Kalaw v. Relova, G.R. No. L-40207, Sept. 28, 1984)
2. Where the alteration affects the date of the will or the
signature of the testator.
3. If the words written by a 3rd person were contemporaneous
with the execution of the will, even though authenticated by the
testator, the entire will is void for violation of the requisite that the
holographic will must be entirely in the testators handwriting.
NOTARIAL WILLS
What are the formalities in the execution of a
notarial will?
1. In Writing;
2. Executed in a language or dialect known to the testator;
3. Subscribed by the testator himself or by the testators name
written by some other person in his presence and under his
express direction at the end thereof, at the presence of
witnesses;
4. Attested to and subscribed by at least 3 credible witnesses in
the presence of the testator and of one another;
5. Each and every Page must be signed by the testator or by the
person requested by him to write his name, and by instrumental
witnesses in the presence of each other, on the left margin;
6. Each and every page of the will must be Numbered
correlatively in letters placed on the upper part of each page;
7. Must contain an Attestation clause, stating the following:
a. The number of pages of the will,
b. Fact that the testator signed the will and every page in the
presence of witnesses, or caused some other person to write his
name under his express direction, c. All witnesses signed the will
and every page thereof in the presence of the testator and of one
another;
8. Must be acknowledged before a Notary public.
What are the special requirements if the testator
is deaf or mute?
a. If the testator is able to read, he must personally read the will;
or
b. If the testator is unable to read, he must designate two
persons to read it and communicate to him, in some practicable
manner, the contents thereof. (Art. 807; see Rabuya, Civil Law
Reviewer, p. 559)
Note: The law does not require that the persons reading and
communicating the contents of the will be the instrumental
witnesses. (id., p. 560)
What are the special requirements if the testator
is blind?
The will shall be read to him twice, once by one of the
subscribing witnesses, and another time by the notary public
before whom the will is acknowledged. (Art. 808; id.)
Note: Art. 808 applies not only to blind testators but also to those
who, for one reason or another, are incapable of reading their
wills, either because of poor or defective eye sight or because of
illiteracy. (id.)
WITNESSES IN WILLS
What are the qualifications of witnesses?
Witnesses to a will must be:
1. Of Sound mind.
2. At least 18 years of age.
3. Able to read and write
4. Not Blind, deaf or dumb
5. Not have been Convicted by final judgment of falsification of a
document, perjury or false testimony.
6. Domiciled in the Philippines
Will the beneficial interest of a witness in a will
disqualify him as such?
Beneficial interest in a notarial will does not disqualify one as a
subscribing witness, but it may, or may not nullify the devise or
legacy given to the said witness. A witness who attests the
execution of a will, and to whom, or to whose spouse, parent or
child, or anyone claiming the right of said witness, spouse,
parent or child, a devise or legacy given, shall be void, unless
there are 3 other competent witnesses to such will. (Art. 823
NCC)
Note: If the witness is instituted as heir, not as devisee or
legatee, the rule would still apply, because undue influence or
pressure on the part of the attesting witness would still be
present.
Creditors of the testator are not disqualified to be a witness to
the will.
FORMAL VALIDITY RULES
What law governs the forms and solemnities of
wills?
It is the law of the country where the will was executed that
governs the form and solemnities of wills. (Art. 17, 1st
paragraph; Art. 815)
What are the effects of a will executed by an alien
abroad?
The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of
the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which the
Civil Code prescribes. (Art. 816)
What are the effects of a will executed by an alien
in the Philippines?
It shall produce the same effect as if it was executed in the
Philippines if it is executed in accordance with the law of the
country where he is a citizen or subject, and which might be
proved and allowed by the law of his own country. (Art. 817)
Is a joint will executed by a Filipino in a foreign
country valid?
No. The same holds true even if it is authorized by the law of the
country where the joint will was executed. (Art. 819)
TESTAMENTARY CAPACITY AND INTENT
Who can make a will?
All persons who are not expressly prohibited by law may make a
will. (Art. 796) The law presumes capacity to make a will; hence,
in order that a person may be disqualified to make one, he must
be expressly prohibited by law.
Note: The ability as well as the power to make a will must be
present at the time of the execution of the will. Supervening
incapacity does not invalidate an effective will, nor is the will by
an incapable person validated by the supervening of capacity.
(Art. 801)
What are the requisites of testamentary capacity?
1. At least 18 years of age; and
2. Of sound mind
Note: It is not necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause. It
shall be sufficient if the testator was able at the time of making
the will to know the:
a. nature of the estate to be disposed of;
b. proper objects of his bounty; and
c. character of the testamentary act.
Who are those persons expressly prohibited by
law to make a will?
1. Persons of either sex under 18 years of age (Art. 797)
2. Persons who are not of sound mind (Art. 798)
Is a person suffering from civil interdiction
qualified to make a will?
Yes. He is deprived only of the power to dispose of his properties
through acts inter vivos but not through acts mortis causa. (Art.
34, Revised Penal Code; Rabuya, Civil Law Reviewer, p. 527)
SUCCESSION SETTLEMENT OF ESTATE
In Dy Yieng Seangio, et al. v. Hon. Amor Reyes, et al., G.R. No.
140371-72, November 27, 2006, there was a petition for the probate of
an alleged holographic will which was denominated as Kasulatan sa
pag-aalis ng mana. The private respondents moved for the dismissal of
the probate proceedings primarily on the ground that the document
purporting to be the holographic will of Segundo did not contain any
disposition of the estate of the deceased and thus did not meet the
definition of a will under Article 783 of the Civil Code. According to
private respondents, the will only showed an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing
else; that all other compulsory heirs were not named nor instituted as
heir, devisee or legatee, hence there was preterition which would result
to intestacy. Such being the case, private respondents maintained that
while procedurally the court is called upon to rule only on the extrinsic
validity of the will, it is not barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the petition for probate when on
the face of the will it is clear that it contains no testamentary disposition
of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss
contending that: (1) generally, the authority of the probate court is
limited only to a determination of the extrinsic validity of the will; (2)
private respondents question the intrinsic and not the extrinsic validity of
the will; (3) disinheritance constitutes a disposition of the estate of a
decedent; and (4) the rule on preterition did not apply because
Segundos will did not constitute a universal heir or heirs to the
exclusion of one or more compulsory heirs.
The RTC issued an order dismissing the petition for probate
proceedings, hence, a petition for certiorari was filed where petitioners
argued as follows:
First, respondent judge did not comply with Sections 3 and 4 of
the Rule 76 of the Rules of Court which respectively mandate the court
to: (a) fix the time and place for proving the will when all concerned may
appear to contest the allowance thereof, and cause notice of such time
and place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and (b) cause the
mailing of said notice to the heirs, legatee and devisees of the testator
Segundo;
Second, the holographic will does not contain any institution of
an heir, but rather, as its title clearly states, Kasulatan ng Pag-alis ng
Mana, simply contains a disinheritance of a compulsory heir. Thus,
there is no preterition in the decedents will and the holographic will on
its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners
and private respondents alike, with the sole exception of Alfredo, to
inherit his estate. None of the compulsory heirs in the direct line of
Segundo were preterited in the holographic will since there was no
institution of an heir;
Fourth, as it clearly appears from the face of the holographic will
that it is both intrinsically and extrinsically valid, respondent judge was
mandated to proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case
will work injustice to petitioners, and will render nugatory the
disinheritance of Alfredo.
Now, the critical issue to be determined is whether the
document executed by Segundo can be considered as a holographic
will.
Held: A holographic will, as provided under Article 810 of the Civil
Code, must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed.
The document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic
will prescribed by law. It is written, dated and signed by the hand of the
testator himself. An intent to dispose mortis causa(Article 783) can be
clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latters property, the
disinheritance of the son nonetheless, is an act of disposition in itself. In
other words, the disinheritance results in the disposition of the property
of the testator in favor of those who would succeed in the absence of
the eldest son.
Moreover, it is a fundamental principle that the intent or the will
of the testator, expressed in the form and within the limits prescribed by
law, must be recognized as the supreme law in succession. All rules of
construction are designed to ascertain and give effect to that intention. It
is only when the intention of the testator is contrary to law, morals, or
public policy that it cannot be given effect.
Holographic wills, therefore, being usually prepared by one who
is not learned in the law should be construed more liberally than the
ones drawn by an expert, taking into account the circumstances
surrounding the execution of the instrument and the intention of the
testator. In this regard, the document, even if captioned as Kasulatan ng
Pag-alis ng Mana, was intended by the testator to be his last
testamentary act and was executed by him in accordance with law in
the form of a holographic will. Unless the will is probated, the
disinheritance cannot be given effect.
Preterition in Succession
With regard to the issue on preterition, the compulsory heirs in the direct
line were not preterited in the will. It was the testators last expression to
bequeath his estate to all his compulsory heirs, with the sole exception
of his eldest son. Also, he did not institute an heir to the exclusion of his
other compulsory heirs. The mere mention of the name of one of the
petitioners in the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to the
altercation between testator and his son.
Considering that the questioned document is testators holographic will,
and that the law favors testacy over intestacy, the probate of the will
cannot be dispensed with. Article 838 of the Civil Code provides that no
will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. Thus, unless the will is
probated, the right of a person to dispose of his property may be
rendered nugatory. (Maninang v. CA, 114 SCRA 478).
In view of the foregoing, the trial court, therefore, should have allowed
the holographic will to be probated. It is settled that testate proceedings
for the settlement of the estate of the decedent take precedence over
intestate proceedings for the same purpose. (Cuenco v. CA, 53 SCRA
360).
An Unprobated Will Does Not Pass Any Right
In Heirs of Rosendo Lasam, etc. v. Umengan, G.R. No. 168156,
December 6, 2006, (Callejo, J), there was a complaint for unlawful
detainer alleging that the plaintiffs were the owners of the property. The
defendants were allegedly possessing the property by mere tolerance.
In their defense, they alleged that they have a better right because they
inherited it from their father, showing a Last Will and Testament which
has not yet been probated. The lower courts (MTC and RTC) ruled that
with the will they have a better right, but the CA reversed on the ground
that the will has not yet been probated, hence, it has no passed any
right.
In this case, both parties were claiming to have better right of
possession due to ownership. One party claiming that there was
conveyance; the other, having inherited it, hence, claiming a better right
of possession following the law on succession.
In upholding the CAs ruling the SC
Held: The Last Will and Testament cannot be relied upon to establish
the right of possession without having been probated, the said last will
and testament could not be the source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime,
petition the court having jurisdiction for the allowance
of his will. In such case, the pertinent provisions of the
Rules of Court for the allowance of wills after the
testators death shall govern.
The Supreme Court shall formulate such
additional Rules of Court as may be necessary for the
allowance of wills on petitioner of the testator.
Subject to the right of appeal, the allowance
of the will, either during the lifetime of the testator or
after his death, shall be conclusive as to its due
execution.
In Caiza v. Court of Appeals, 335 Phil. 1107 (1997) it was ruled
that: a will is essentially ambulatory; at any time prior to the testators
death, it may be changed or revoked; and until admitted to probate, it
has no effect whatever and no right can be claimed thereunder, the law
being quite explicit: No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of Court.
Before any will can have force or validity it must be probated. To
probate a will means to prove before some officer or tribunal, vested by
law with authority for that purpose, that the instrument offered to be
proved is the last will and testament of the deceased person whose
testamentary act it is alleged to be, and that it has been executed,
attested and published as required by law, and that the testator was of
sound and disposing mind. It is a proceedings to establish the validity of
the will. Moreover, the presentation of the will for probate is mandatory
and is a matter of public policy. (Guevara v. Guevara, 74 Phil. 479;
Baluyot v. Pao, 163 Phil. 81 (1976); Roberts v. Leonilas, 214 Phil. 30
(1984)).
Since the will has not yet been probated, it has no effect
whatsoever and it cannot be the basis of any claim of any right of
possession. The defendants have a better right of possession based on
the deed of conveyances executed by the owner in favor of the children,
the defendants herein. (Heirs of Rolando Lasam v. Umengan, G.R. No.
168156, December 6, 2006).
J.L.T. Agro, Inc. v. Antonio Balansag and Hilaria Cadayday, G.R. No.
141882, March 11, 2005
Preterition.
In J.L.T. Agro, Inc. v. Antonio Balansag and Hilaria Cadayday,
G.R. No. 141882, March 11, 2005 (Tinga, J), there was a conflict of
property claims between two sets of heirs. It appears that during his
lifetime, Don Julian L. Teves (Don Julian) contracted marriage twice.
First, with Antonia Baena and second, with Milagros Donio Teves. In the
first marriage, he had two children, Josefa and Emilio. In the second
marriage, he had four children, Maria, Jose, Milagros and Pedro, all
surname Teves. There was a property Lot No. 63 which was originally
registered under the names of Julian and Antonia (TCT 5203) forming
part of their conjugal partnership. After Antonia died, Lot No. 63 was
among the properties involved in an action for partition. The parties
entered into a Compromise Agreement which embodied the partition of
all the properties of Don Julian. The Agreement showed that a tract of
land known as Hacienda Medalla Milagrosa was to be owned in
common by Don Julian and his two (2) children of the first marriage
which would remain undivided during his lifetime. The two children were
given other properties. Lot No. 63 was retained by Don Julian.
Paragraph 13 of the Compromise Agreement, at the heart of the
present dispute, lays down the effect of the eventual death of Don
Julian vis--vis his heirs:
13. That in the event of death of Julian L.
Teves, the properties hereinafter adjudicated to
Josefa Teves Escao and Emilio B. Teves, (excluding
the properties comprised as Hacienda Medalla
Milagrosa together with all its accessories and
accessions) shall be understood as including not only
their one-half share which they inherited from their
mother but also the legitimes and other successional
rights which would correspond to them of the other
half belonging to their father, Julian L. Teves. In other
words, the properties now selected and
adjudicated to Julian L. Teves (not including his
share in the Hacienda Medalla Milgrosa) shall
exclusively be adjudicated to the wife in second
marriage of Julian L. Teves and his four minor
children, namely, Milagros Donio Teves, his two
acknowledged natural children Milagros Reyes Teves
and Pedro Reyes Teves and his two legitimate
children Maria Evelyn Donio Teves and Jose Catalino
Donio Teves. (Emphasis supplied)
On 16 November 1972, Don Julian, Emilio and Josefa executed
a Deed of Assignment of Assets with Assumption of Liabilities in favor of
J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa
and Emilio also executed an instrument entitled Supplemental to the
Deed of Assignment of Assets with the Assumption of Liabilities
(Supplemental Deed) dated 31 July 1973. This instrument which
constituted a supplement to the earlier deed of assignment transferred
ownership over Lot No. 63, among other properties, in favor of JLT Agro.
On 14 April 1974, Don Julian died intestate.
On the strength of the Supplemental Deed in its favor, JLT Agro,
Inc. sought the registration of the subject lot in its name. A court, so it
appeared, issued an order canceling OCT No. 5203 in the name of
spouses Don Julian and Antonia on 12 November 1979, and on the
same date TCT No. T-375 was issued in the name of JLT Agro. Since
then, JLT Agro has been paying taxes assessed on the subject lot.
Meanwhile, Milagros Donio and her children had
immediately taken possession over the subject lot after the execution of
the Compromise Agreement. In 1974, they entered into a yearly lease
agreement with spouses Antonio Balansag and Hilaria Cadayday. Lot
No. 63 was sold to Antonio Balansag and Hilaria Cadayday. After the
death of Don Julian, Milagros Donio and her children executed a Deed
of Extrajudicial Partition of Real Estate where Lot No. 63 was allotted to
Milagros and her two children, Maria and Jose. Unaware that Lot No. 63
has been registered under the name of JLT Agro, Inc., Antonio and
Hilaria tried to register the deed of sale, but failed. They filed a
complaint to declare the title of JLT Agro, Inc. void which was dismissed.
The trial court ruled that the resolution of the case specifically
hinged on the interpretation of paragraph 13 of the Compromise
Agreement. It added that the direct adjudication of the properties listed
in the Compromise Agreement was only in favor of Don Julian and his
two children by the first marriage, Josefa and Emilio. Paragraph 13
served only as an amplification of the terms of the adjudication in favor
of Don Julian and his two children by the first marriage.
According to the trial court, the properties adjudicated in favor of
Josefa and Emilio comprised their shares in the estate of their deceased
mother Antonia, as well as their potential share in the estate of Don
Julian upon the latters death. Thus, upon Don Julians death, Josefa
and Emilio could not claim any share in his estate, except their proper
share in the Hacienda Medalla Milagrosa which was adjudicated in favor
of Don Julian in the Compromise Agreement. As such, the properties
adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa,
were free from the forced legitimary rights of Josefa and Emilio, and
Don Julian was under no impediment to allocate the subject lot, among
his other properties, to Milagros Donio and her four (4) children.
The trial court further stressed that with the use of the words
shall be:, the adjudication in favor of Milagros Donio and her four (4)
children was not final and operative, as the lot was still subject to future
disposition by Don Julian during hid lifetime. It cited paragraph 14 of the
Compromise Agreement in support of his conclusion. With Lot No. 63
being the conjugal property of Don Julian and Antonia, the trial court
also declared that Milagros Donio and her children had no hereditary
rights thereto except as to the conjugal share of Don Julian, which they
could claim only upon the death of the latter.
The trial court ruled that at the time of Don Julians death on 14
April 1974, Lot No. 63 was no longer part of his estate since he had
earlier assigned it to petitioner on 31 July 1973. Consequently, the lot
could not be a proper subject of extrajudicial partition by Milagros Donio
and her children, and not being the owners they could not have sold it.
Had respondents exercised prudence before buying the subject lot by
investigating the registration of the same with the Registry of Deeds,
they would have discovered that five (5) years earlier, OCT No. 5203
had already been cancelled and replaced by TCT No. T-375 in the name
of petitioner, the trial court added.
The Court of Appeals, however, reversed the trial courts
decision.
Per the appellate court, the Compromise Agreement
incorporated in CFI decision dated 31 January 1964, particularly
paragraph 13 thereof, determined, adjudicated and reserved to Don
Julians two sets of heirs their future legitimes in his estate except as
regards his (Don Julians) share in Hacienda Medalla Milagrosa. The
two sets of heirs acquired full ownership and possession of the
properties respectively adjudicated to them in the CFI decision and Don
Julian himself could no loner dispose of the same, including Lot No. 63.
The disposition in the CFI decision constitutes res judicata. Don Julian
could have disposed of only his conjugal share in the Hacienda Medalla
Milagrosa.
The CA likewise emphasized that nobody in his right judgment
would preterit his legal heirs by simply executing a document like the
Supplemental Deed which practically covers all properties which Don
Julian had reserved in favor of his heirs from the second marriage.
Aggrieved by the CAs decision, JLT Agro appealed to the SC
via a petition for review on certiorari, raising pure questions of law, such
as:
a) that future legitime can be determined, adjudicated and
reserved prior to the death of Don Julian;
 b) that Don Julian had no right to dispose of or assign Lot No. 63
to petitioner because he reserved the same for his heirs from
the second marriage pursuant to the Compromise Agreement;
c) that the Supplemental Deed was tantamount to a preterition of
his heirs from the second marriage; and
d) that TCT No. T-375 in the name of petitioner is spurious for not
containing entries on the Book No. and Page No.
On the basis of the Compromise Agreement, the Court of
Appeals ruled that the adjudication in favor of the heirs of Don Julian
from the second marriage became automatically operative upon the
approval of the Compromise Agreement, thereby vesting on them the
right to validly dispose of Lot No. 63 in favor of respondents.
JLT Agro argued that the appellate court erred in holding that
future legitime can be determined, adjudicated and reserved prior to the
death of Don Julian.
Stated otherwise, may future legitime be determined,
adjudicated and reserved prior to the death of the owner of a property?
Why?
Held: No. In Blas v. Santos, 111 Phil. 503 (1961), future legitime was
defined as any property or right not in existence or capable of
determination at the time of the contract, that a person may in the future
acquire by succession, Article 1347, NCC provides:
ART. 1347. All things where are not outside
the commerce of men, including future things, may be
the object of a contract. All rights which are not
intransmissible may also be the object of contracts.
No contracts may be entered into upon future inheritance except in
cases expressly authorized by law
All services which are not contrary to law, morals, good customs, public
order or public policy may likewise be the object of a contract.
Well-entrenched is the rule that all things, even future ones, which are
not outside the commerce of man may be the object of a contract. The
exception is that no contract may be entered into with respect to future
inheritance, and the exception is the partition inter vivosreferred to in
Article 1080. (Perillo v. Perillo, (CA), 48 O. G. 4444).
For the inheritance to be considered future, the succession must not
have been opened at the time of the contract. A contract may be
classified as a contract upon future inheritance, prohibited under the
second paragraph of Article 1347, where the following requisites concur:
(1) That the succession has yet been opened;
(2) That the object of the contract forms part of the inheritance; and
(3) That the promissory has, with respect to the object, an
expectancy of a right which is purely hereditary in nature.
The first paragraph of Article 1080, which provides the
exception to the exception and therefore aligns with the general rule on
future things, reads:
ART. 1080. Should a person make a 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.
If the partition is made by an act inter vivos, no formalities are
prescribed by the Article. The partition will of course be effective only
after death. It does not necessarily require the formalities of a will for
after all it is not the partition that is the mode of acquiring ownership.
Neither will the formalities of a donation be required since donation will
not be the mode of acquiring the ownership here after death; since no
will has been made it follows that the mode will be succession (intestate
succession). Besides, the partition here is merely the physical
determination of the part to be given to each heir.
The historical antecedent of Article 1080 of the New Civil Code is Article
1056 of the old Civil Code. The only change in the provision is that
Article 1080 now permits any person (not a testator, as under the old) to
partition his estate by act inter vivos. This was intended to abrogate the
then prevailing doctrine that for a testator to partition his estate by an
act inter vivos, he must first make a will with all the formalities provided
by law. (Dizon-Rivera v. Dizon, 144 Phil. 558 (1970); See also Zaragoza
v. Court of Appeals, G.R. No. 106401, September 29, 2000, 341 SCRA
309, 315-316).
Article 1056 of the old Civil Code (now Article 1080) authorizes a
testator to partition inter vivos his property, and distribute them among
his heirs, and this partition is neither a donation nor a testament, but an
instrument of a special character, sui generis, which is revocable at any
time by the causante during his lifetime, and does not operate as a
conveyance of title until his death. It derives its binding force on the
heirs from the respect due to the will of the owner of the property, limited
only by his creditors and the intangibility of the legitime of the forced
heirs. (Albela & Aebuya v. Albela & Allones, (CA) G.R. No. 5583-R, June
20, 1951).
The partition inter vivos of the properties of Don Julian is undoubtedly
valid pursuant to Article 1347. However, considering that it would
become legally operative only upon the death of Don Julian, the right of
his heirs from the second marriage to the properties adjudicated to him
under the compromise agreement was but a mere expectancy. It was
bar hope of succession to the property of their father. Being the
prospect of a future acquisition, the interest by its nature was inchoate.
It had no attribute of property, and the interest to which it related was at
the time nonexistent and might never exist. (Johnson v. Breeding, 136
Tenn. 528 190 SW 545).
Evidently, at the time of the execution of the deed of assignment
covering Lot No. 63 in favor of JLT Agro, Don Julian remained the owner
of the property since ownership over the subject lot would only pass to
his heirs from the second marriage at the time of his death. Thus, as the
owner of the subject lot, Don Julian retained the absolute right to
dispose of it during his lifetime. His right cannot be challenged by
Milagros Donio and her children on the ground that it had already been
adjudicated to them by virtue of the compromise agreement.
Second issue:
That Don Julian had no right to dispose of or assign Lot No. 63 to JLT
Agro because he reserved it to his heirs from the second marriage
pursuant to the Compromise Agreement. It was contended that he
validly transferred ownership of the said lot during his lifetime to which
the lower court agreed when he executed the Supplemental Deed. The
CA reversed, ruling that it was a case of prohibited preterition of Don
Julians heirs from the second marriage. JLT Agro contended otherwise.
Decide.
Held: The contention of JLT Agro is correct. There was no preterition.
Article 854 provides that the preterition or omission of one, some, or all
of the compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious. Manresa defines preterition as the
omission of the heir in the will, either by not naming him at all or, while
mentioning him as father, son, etc., by not instituting him as heir without
disinheriting him expressly, nor assigning to him some part of the
properties. (Aznar v. Duncan, 123 Phil. 1450 (1966). It is the total
omission of a compulsory heir in the direct line from inheritance. It
consists in the silence of the testator with regard to a compulsory heir,
omitting him in the testament, either by not mentioning him at all, or by
not giving him anything in the hereditary property but without expressly
disinheriting him, even if he is mentioned in the will in the latter case.
But there is no preterition where the testator allotted to a descendant a
share less than the legitime, since there was no total omission of a
forced heir. (Reyes-Barreto v. Barreto-Datu, 125 Phil. 501 (1967)).
In the case at bar, Don Julian did not execute a will since what he
resorted to was a partition inter vivos of his properties, as evidence by
the court approved Compromise Agreement. Thus, it is premature if not
irrelevant to speak of preterition prior to the death of Don Julian in the
absence of a will depriving a legal heir of his legitime. Besides, there are
other properties which the heirs from the second marriage could inherit
from Don Julian upon his death.