OCTOBER 10, 2017
legitime under Article 906.
REVOCATION BASED ON A FALSE CAUSE
The status of the will in case of revocation based on a
false cause depends if the will is revoked by a
subsequent will, not by an act of physical destruction,
the basis for revoking the will must be stated in the
revoking will. If that is not stated in the revoking will, the
revocation will remain valid.
If the revocation is by an act of destruction and the basis
is a false cause, the revocation is valid. If the revocation
is by means of another will or subsequent will, the law
requires that the basis or reason for revoking the will
must be stated in the revoking will otherwise, the
revocation remains valid.
INSTITUTION OF HEIR BASED ON A FALSE CAUSE
If the institution of an heir is made on the basis of a false
cause, the institution shall be valid unless it appears in
the will that the testator would not have made the
institution had he known of the falsity of the cause.
HOW IS A WILL REPUBLISHED?
A will is republished through the execution of another will
or a codicil referring to the one previously executed.
INSTITUTION OF HEIR
The law does not require the institution of an heir for the
validity of a will. So that a will that does not contain an
institution of an heir is still valid. In such a case the
estate shall pass by applying the order of the intestate
succession.
In testate succession, the basis of the right to succeed is
the institution as an heir. In intestate succession, the
basis of the right to succeed is the relationship of the
heir within the 5th civil degree.
PRETERITION
It is the omission of a compulsory heir in the direct line.
Preterition, the word itself, means omission. It does not
always mean, however, that the compulsory heir in the
direct line is always omitted because preterition can refer
to omission of:
1. the compulsory heir in the direct line;
2. a compulsory heir simply; or
3. a property.
It is not limited to the omission of compulsory heir in the
direct line.
An adopted child can be preterited. (Acain vs Acain)
Only the adopted child can be preterited but the
surviving spouse cannot be preterited because the latter
is not a compulsory heir in the direct line. If the suriving
spouse is omitted, he can ask for the completion of the
Filiation may be natural or artificial. Natural is produced
by gestation. Whereas, artificial filiation is produced by
fiction of law wherein relation is created.
If a Filipino executed a will abroad, the law that will
govern must be distinguished based on their formal or
intrinsic validity.
With respect to its formal or extrinsic validity, the law that
will govern is the law of the place where the will where it
is executed, the law of his domicile, or the Philippine law.
With respect to its intrinsic validity, the law that will
govern is the national law of the person whose
succession in under consideration.
Distinction must be made because of Article 16 which
refers to intrinsic validity and Article 17 which refers to
extrinsic validity.
If a Filipino executed a will abroad and it was probated
on the same place of its execution, when he returns in
the Philippines, there is no need for another probate
under the Rules of Court. However, there must be
another proceedings but not for the purpose of probate.
The purpose is only to establish the fact that said will
has been allowed or probated in that country wherein it
was presented. If it was allowed there, it will be allowed
here.
PRETERITION IN PREDECEASE
There can be preterition in predecease only when right
of representation applies even if the omitted child is not
married but has his own child. (There is right of
representation by the children of the omitted child of the
testator. However, if the omitted child who predeceased
the testator has no own children, then there is no
preterition because no descendant in the direct line will
represent him.)
EFFECT OF PRETERITION
The effect of preterition is the total annulment of
institution of heirs. It will not result to intestacy
because of legacy and devise, if there are any. It will
only result to intestacy if there are no legacies or devises
given by the testator. (Neri vs. Atukin)
PROHIBITED WILLS
JOINT WILL (Art. 818) – an instrument containing the
wills of two persons in the same instrument.
RECIPROCAL WILLS or MUTUAL WILLS are not
prohibited by law as long as they are not executed in
one instrument. But the moment they are executed in
one instrument, it becomes a joint will.
DE LA CERNA vs POTOT
(Admittedly the probate of the will in 1939 was
erroneous, however, because it was probated by a court
of competent jurisdiction it has conclusive effect and a
final judgment rendered on a petition for the probate of a
will is binding upon the whole world. However, this is
only with respect to the estate of the husband but cannot
affect the estate of the wife; considering that a joint will is
a separate will of each testator.
The joint will being prohibited by law, its validity, in so far
as the estate of the wife is concerned, must be
reexamine and adjudicated de novo.
The undivided interest of the wife should pass upon her
death to her intestate heirs and not to the testamentary
heir. Thus as to the disposition of the wife, the will
cannot be given effect.
A decree of probate decree is conclusive on the due
execution and the formal validity of the will subject to
such probate.)
If the law of the country of the foreigner neither prohibit
nor allows a joint will, that is not material in our laws.
MUTUAL WILLS or RECIPROCAL WILLS
(PCIB vs ESCOLIN)
PURPOSE OF SUBSTITUTION OF HEIRS
The purpose of substitution of heirs is to prevent
intestacy.
GROUNDS FOR SUBSTITUTION OF HEIRS
1. Predecease
2. Incapacity
3. Repudiation
It is not necessary for the testator to specify for what
ground he is making the substitution. If the ground for
the substitution is not specified, the substitution can take
place on the basis of the 3 grounds.
OCTOBER 11, 2017
Revocation when based on a false cause is not valid.
But in case of an institution of heir when it is made on
the basis of a false cause, it shall simple be considered
as not imposed unless it can be shown that the testator
would not have made such institution if not for the false
cause.
Rights of an heir depends on their status. For a voluntary
heir, in case predecease, he transmits nothing to his own
heirs. For compulsory heir, he also transmits nothing to
his own heirs except when the right of representation
applies.
In the case of compulsory heir, in case of predecease,
incapacity and repudiation, he also transmits nothing to
his own heir. In case of voluntary heir, it mentions only
predecease. But in the case of a compulsory heir, as a
rule also transmits nothing to his own heir except when
the right the right of representation applies, except in the
case of repudiation because there is no right of
representation in repudiation. One who does not want to
succeed cannot be represented.
A testator may bequeath or devise to an heir a property
in absolute ownership and the usufruct on the same
property to one or more usufructuaries. When the one
given to an instituted heir is an absolute ownership of the
property, and the usufructuary is given to one or several
persons by way of legacy or devise, the only right given
to the latter is only the right to use. In other words, only
the usufruct of the property is given to somebody else.
With respect to the right of usufruct, under the law, a
distinction must also be made between successive
usufructuary and simultaneous usufructuary.
In SUCCESSIVE USUFRUCT, the usufructuaries can
enter into the enjoyment of the property one at a time.
They cannot enter into the enjoyment of the property
simultaneously because it is successive. But if it
SIMULTANEOUS USUFRUCT, all of them can enter into
the enjoyment of the property at the same time. But that
is not all. The law provides that in the case of successive
usufruct, the usufructuaries must be one degree away
from each other. The same requirement prescribed by
law in the case of fideicommissary substitution is
applicable here in usufruct. This means that the first
usufructuary must not be more than one degree away
from the second usufructuary and the third must also not
be one degree away from the second usufructuary.(?)
The same interpretation of law has been given with
respect to the meaning of one degree in the case of
Ramirez vs. Ramirez which means, “one degree of
relationship”, unless if the second is a juridical person.
PCIB vs Escolin
A will was executed here by the deceased wife of the
surviving spouse. In this will, she instituted the following
heirs: her husband, brother and sister. The institution of
the husband as an heir was made subject to a resolutory
condition, and the institution of her brother and sister
was made subject to a suspensive condition. The
resolutory condition imposed by the testatrix is that upon
her death, all properties of the testatrix shall pass to her
husband in absolute ownership. However, in the same
will, the testatrix said, “If upon my death, there should
remain properties acquired by my husband from me, in
other words, if upon my death and upon the death of my
husband there should remain properties acquired by my
husband from me, then my brother and sister shall
succeed to those properties.” In other words, upon the
death of the testatrix, her husband succeeds to all of her
properties in absolute ownership. But if upon the death
of the husband there should remain properties which the
husband inherited from his wife, said properties shall not
form part of the estate of the husband because they will
be inherited by the brother and sister of the testatrix.
ISSUE: Whether or not this is a case of substitution of
heirs.
HELD:
NO, it is not the case of substitution because the heirs
are instituted simultaneously with no one substituting
another. However, a distinction must be made between
the institution of the husband as heir and the institution
of the brother and sister as heirs.
The right of the husband accrue over the inheritance
upon the death of his wife. All properties owned by the
wife shall belong to the husband. He can do whatever he
may want to do over said properties. No limitations were
imposed. However, should the husband dies, there
should remain some of the properties he inherited from
his wife, and there is where the resolutory condition
applies. Insofar as the remaining properties are
concerned all right acquired by the husband from the
testatrix shall be terminated. In other words, said
properties shall not form part of the estate of her
husband because they will now pass to her brother and
sister. That is the condition imposed by the testatrix. The
nature of the condition insofar as the husband is
concerned is a resolutory condition. On the other hand,
insofar as the brother and sister is concerned, they are
instituted simultaneously with the husband. But the
difference lies in the manner they were instituted as
heirs. Institution of the husband was made subject to a
resolutory condition. Institution of the brother and sister
was made subject to a suspensive condition.
There is no substitution here because inn order for
substitution to arise, there should be refusal to accept,
incapacity, repudiation, predecease. None of these are
present. Therefore, there is no substitution. Instead,
conditions are attached but in a qualified manner.
NOVEMBER 28, 2017
Under the law, institution of an heir in a will is not
necessary to make the will valid. In such a case, the
estate is distributed in accordance with the order of
intestate or legal succession.
If the testator should prefer to make institution, the law
says there are several ways in making this. The
institution may be made subject to a condition, to a term,
or mode.
The same rules under the obligation and contracts with
respect to the kind of conditions that may be attached to
the institution of heirs.
With respect to the conditional institution of heir, the
kinds of conditions that may be attached by the testator
to the institution of heir are those recognised and
allowed by the law on obligations and contracts. In other
words, if the condition attached in the institution is valid,
does it follow that it is also allowed by the law under
obligations and contracts? So, that when the condition is
not allowed by the law under obligations and contracts,
the same will not also cannot be attached to the
institution of heir?
A: NO, because this is where the exceptions come.
In obligations and contracts, if the condition
attached to the obligation is not valid or impossible,
its effect on the obligation must be distinguished
based on positive and negative. The mere
attachment of void obligation does not automatically
render the obligation void. It depends on the manner
on which the condition is attached. If it was attached
negatively, it will not affect the validity of the
obligation.
However, the above rules on obligations and
contracts do not apply on succession. Because in
succession, if a void condition is attached, the
institution will remain valid and the void condition
will only be considered as not imposed. The mere
attachment of illegal condition to the institution does
not affect the validity of institution under the law on
succession.
The reason for the distinction is…
Suppose in instituting one as an heir, the testator
attached a potestative condition, what will be its effect in
the institution of an heir?
A: The institution will still be valid.
POTESTATIVE CONDITION – a condition the
fulfilment of which is dependent upon the will of one
of the parties. The obligation will become void with
the attachment of this kind of condition when its
fulfilment is dependent upon the will of the debtor
because the debtor can control the birth of the
obligation. If he does not want the obligation to
arise, he may not just fulfil the condition. But it will
be valid when the fulfilment of the potestative
condition is dependent upon the will of the creditor.
It is so, because it is the creditor who is most
interested in the fulfilment of the obligation. If the
condition is fulfilled, the one who will be benefitted
will be the creditor. It will redound to the benefit of
the creditor.
Q: Will those rules apply to succession?
A: NO. The attachment of illegal or void potestative
condition in the institution does not affect the
validity of the institution of heir. It will simple be
considered not written because in succession the
institution is considered as an act mortis causa.
Under the law on obligations, no party dies instead,
both parties are alive. Under the law on succession,
one is dead and the other is alive. Attachment of
void or illegal condition does not affect the validity
of the institution. It is simply considered as not
written because the law is not stricter here than in
law on obligation. Because in the latter case, in law
on obligations, there is still the possibility of
changing the condition while in law on succession,
there is no possibility of changing the condition.
Hence, it will only be considered as not imposed.
Condition or term or substitution applies only to the
legacy or device but never to a legitime. It applies
only to the free portion.
Suppose the testator provided in his will that he will give
one a car provided the latter will not marry, it is an
absolute condition hence it is void and not deemed
imposed. An absolute prohibition to marry is void
because it will tend to violate the right of a person to
choose his status in life.
NOVEMBER 29, 2017
If the prohibition is absolute, it is void. But if the
prohibition is relative, it can be valid. According to the
express provision of the law, in the case of absolute
prohibition to marry, it is not valid because it violates the
right of an individual to choose his status. But the law
says, if it is the reverse and this is the express provision
of the Code, if instead of prohibiting the person to get
married, he is required to get married to be able to get
what is given to him by the testator, it is valid. Do they
not involve a violation of the right of a person to choose
his own status in life? Yes because in both instances,
there is a violation, whether to prevent the person not to
marry or to compel a person to get married.
Q: Will the mere prohibition to marry make the
prohibition null and void?
A: No. When the absolute prohibition not to marry is
imposed by the deceased spouse in the will made
by him during his lifetime. It may also be imposed
by the relatives, ascendants or descendants of the
deceased spouse. Such prohibition is allowed by
law because …
If such prohibition is made in a will, the nature of the
provision is…
Q: When can an estate be placed under administration?
A: An estate can be placed under administration if it
subject to suspensive condition. The purpose in
placing the property under administration is to
preserve the property or the estate during the
pendency of the condition. This applies only when
the testamentary provision is made subject to a
condition, not to a term.
If the testamentary provision is made subject to a
suspensive term, during the pendency of the period,
the estate is not placed under administration but the
legal heirs will be entitled to it.
The reason behind the difference in the rules when
the testamentary provision is made subject to
suspensive condition and suspensive term lies in
the distinction between condition and term.
Condition may or may not come or happen while
term will definitely come even though it is not
certain when it will come.
Legal heir will be allowed to enter under the
condition that he will give a security to make sure
that on the arrival of the period, there is something
that can be transmitted to the heir.
Q: Caucion Muciana vs Caucion Juratoria
A: Both are securities but caucion juratoria applies
in cases of usufruct and the caucion muciana
applies in succession.
Caucion Muciana is usually required in a
POTESTATIVE condition to ensure return not only of
the property itself but as well as the fruits to the
estate in case of non-fulfillment of the condition.
LEGITIMES – a part of the testator’s property which he
cannot dispose of because the law specifically reserves
it for the heirs called the compulsory heirs.
PURPOSE OF LEGITIMES:
The purpose of legitime is to give force of law on the
natural obligation of a person to provide
To enable and oblige the testator to give his estate
due to FAMILY TIES. It is a sort of a reminder to a
person.
DISINHERITANCE – it is that which intended by law that
would soften the impact produced by legitimes. A person
can be deprived of one’s legitime through disinheritance.
Only compulsory heirs can be disinherited because they
are the only ones entitled to legitimes.
In the case of legitime, the FRACTIONAL UNIT of the
what the testator owns is the part thereof which the
testator cannot dispose of. When the law speaks of
legitimes, it does not speak of specific properties.
Owner of the property is prohibited from disposing a
portion of what he owns, because it is reserved by law
for the benefit of a person called the compulsory heir.
This means that the testator is prohibited from disposing
of his properties by gratuitous title. The prohibition here
should not be understood in its generic term. It refers
only to GRATUITOUS DISPOSITION. If the disposition is
ONEROUS, it is NOT COVERED by the prohibition
because the testator gets something in exchange of
what he disposed of such as in the case of sale or
barter. This is not the kind of disposition referred to in the
case of legitime. The kind of disposition referred to by
law on legitime is gratuitous disposition.
Under the law on obligations, when it comes to
gratuitous dispostions of property the law says the
person making the diposition must reserve something for
the benefit to someone who he may be obliged to
something to.
KINDS OF LEGITIMES:
1. FIXED LEGITIME – amount legitime of a fixed
value which may not change even in the
presence of concurring heirs.
2. VARIABLE LEGITIME – value which changes
depending upon the presence of concurring
heirs.
Q: When it comes to the legitime of the illegitimate
children, do we follow the rules on Article 877 of the New
Civil Code?
A: No, because there is no more distinction in
illegitimate children…
A compulsory heir who violated a condition imposed by
the testatrix has an effect of losing the right to his legacy
or devise not the inheritance. But his legitimes would not
be affected because legitimes can never be burdened by
any condition, term or substitution, as an express
provision by law. The prohibition by the testatrix will
apply only to the free portion. Only the free portion may
be subject to conditions, term or substitution but never
the legitime.
FREE PORTION only comes into existence after
deduction of the legitimes of the compulsory heirs, i.e.
the legitimate children, surviving spouse, and illegitimate
children.
It is what remains after the deduction of the legitimes of
the compulsory heirs. Legitime of the legitimate children
must be first given. After taking out the legitimes of the
legitimate children, what remains is not the absolute free
portion. Because from what remains, the legitime of the
surviving spouse and of the illegitimate children must be
given.
When will the legitime be reduced? Suppose what
remains is not enough to cover the legitime of the
surviving spouse and of the illegitimate children, the
legitime of the surviving spouse must be first taken out. It
is only then that the legitime of the illegitimate child will
be taken out. The legitime of the surviving spouse can
never be reduced. Should there be a need for a
reduction, it should be from the legitime of the
illegitimate children.
ABSOLUTE FREE PORTION – it is the remaining
portion after deducting the legitimes of the legitimate
children, suriving spouse and the illegitimate children. It
is the portion from which the testator could give legacies
or devises.
RESERVA TRONCAL
How did the provision on reserve troncal come into
existence?
The NCC is the product of the labor the Code
Commission which is chaired by Boccobo. It is created
pursuant to the order President Quezon to replace the
Spanish Civil Code. In the draft of the NCC, a proposal
was made by the Code Commission. The proposal was
to eliminate from the law on succession all kinds of
reservas, all kinds of reverciones. However, the
Congress decided to retain reserva troncal. Hence the
presence of reserva troncal in the law of succession is
due to Congress not the Code Commission.
PURPOSE OF RESERVA TRONCAL:
“To keep the property in the family to which the
property belongs”
Properties which are to be kept within the trunk
where they come from. To prevent certain properties
from passing from one trunk to the other trunk.
PARTIES TO A RESERVA TRONCAL:
1. ORIGIN (ascendants or brother or sister from
whom the property came)
2. PROPOSITUS (descendant who acquired the
property gratuitously)
3. RESERVOR or RESERVISTA (ascendant who
in turn acquired the property from the
descendant by operation of law)
4. RESERVEE or RESERVATARIO (the relatives
within the third degree of consanguinity from the
propositus)
The property which came from the origin to the
propositus does not make the property reservable.
The property becomes reservable when it falls into the
hands of the reservor from the propositus. From the
origin to the propositus, the mode of transmission is BY
GRATUITOUS TITLE. From the propositus to the
reservoir, the mode of transmission is BY OPERATION
OF LAW.
2 ways of acquiring a property by gratuitous title:
1. By donation
2. By succession
It is essential that the propositus die without issue which
means that he must die without any children, so that the
property must go up. Otherwise, the property will go
down and hence there would be no reserva troncal to
talk of.
RESERVA TRONCAL vs FIDEICOMMISSARY
SUBSTITUTION
Q: Does the reservor holds in the same way as the
fideicommissary heir the inheritance?
A: NO. In reserva troncal, the RESERVOR acquires
the property in the concept of an owner because he
can dispose of the property. However, it does not
extinguish the reserva troncal. If there is an
annotation of the reservable nature of the property, it
serves as a notice to the reserve. Suppose there is
no annotation, the reserve troncal would not be
extinguished instead, the reservor will be liable out
of his own properties to the extent of the value of the
property covered by reserva troncal.
In fideicommissary substitution, the FIDUCIARY
HEIR does not acquire ownership of the property but
what he acquires is only the right to use and enjoy
the property. Beyond that, he does not have the
power to dispose or alienate.
In order for reserva troncal to exist, the law requires
the parties to be legitimate relatives which means
that they should be related legitimately to the
propositus. The relationship required by law is
within the 3rd degree of consanguinity.
The law requires that a person be related to the
propositus within the 3rd degree of consanguinity
and not by affinity to be qualified as reservee. The
law requires for a DOUBLE DEGREE OF
RELATIONSHIP. The reservee must be related not
only to the propositus but also to the origin where
the property came from. Legitimate relationship
does not mean that each party must be related to
each other. It means that the parties must be related
to the propositus legitimately. The focal point is the
propositus. (Alcala case)
DECEMBER 5, 2017
ART. 886 – LEGITIME is that portion of the testator’s
property which he cannot dispose of because the law
has reserved it for certain heirs called compulsory heirs.
On the basis of that definition, only compulsory heirs are
given legitimes because of the express provision
provided under the Civil Code that it is only for the
benefit of compulsory heirs.
PROHIBITION IMPOSED BY LAW ON THE NON-
DISPOSITION OF THE SO-CALLED LEGITIME
The prohibition applies to gratuitous dispositions. The
owner can dispose of it by onerous title because in such
a case, the alienated property is substituted by an
equivalent. However, his power to disposal by gratuitous
title, whether inter vivos or mortis causa, is limited
because the owner gets nothing in exchange for what he
disposes of.
Testator can freely dispose of his property provided there
are no compulsory heirs. But if he has compulsory heirs,
the testator is limited by the system of legitimes.
GRATUITOUS DISPOSOTION MAY TAKE PLACE IN 2
WAYS:
1. By donation
2. By succession
Only compulsory heirs are given legitimes. However,
legitimes of compulsory heirs are not the same because
legitime is classified into two FIXED or VARIABLE.
1. FIXED LEGITIME – if the amount, that is the
fractional part, does not vary or change
regardless of whether there are concurring
compulsory heirs or not.
2. VARIABLE LEGITIME – if the amount changes
or varies in accordance with what compulsory
heirs concur.
Q: Does the law allow reduction of legitimes?
A: Yes. The law allows reduction of the legitime of
illegitimate children but not at the pleasure of the
testator. If the free portion is not sufficient to cover the
legitime of the surviving spouse and the illegitimate
children, then that of the surviving spouse must first be
satisfied and the legitime of the illegitimate children may
be reduced because the legitime of the surviving spouse
can never be reduced.
Q: If after reducing the legitime of the illegitimate
children, still it is not enough, can there still be further
reduction?
A: YES, but only to the extent of the legitime of
illegitimate children, until they are consumed. If nothing
is left after reducing the legitime of the illegitimate
children, no further reduction is allowed by law to be
made because the legitime of the surviving spouse can
never be reduced. Reduction applies only to the
legitimes of illegitimate children and can even be
consumed.
Q: What are variable legitimes?
A: Variable legitimes are those amount of legitimes
which changes or varies depending with what
compulsory heirs concur, such as the legitimes of the
surviving spouse, the illegitimate children and the
parents of the illegitimate child because the fractional
amount thereof depends with what compulsory heirs the
surviving spouse, the illegitimate children and the
parents of the illegitimate child concur.
Q: If the legitime of the surviving spouse cannot be
reduced, can it be taken away? How?
A: Yes, although the legitime of the surviving spouse
may not be reduced, it can be taken away by way of a
valid disinheritance.
Q: How is disinheritance done? Can there be
disinheritance by partial reduction of the legitime of
compulsory heir?
A: Yes, because disinheritance must be total, meaning
that the deprivation must be entire not partial.
Q: Who can be disinherited?
A: Only the compulsory heir. (Art. 887) Only those given
legitime can be disinherited because disinheritance is
the act of depriving the compulsory heir of his legitime.
Only compulsory heir can be disinherited because only
compulsory heirs have legitimes.
Q: Who are the parties to a reserve troncal?
A: The parties to a reserve troncal are:
1. The ORIGIN of the property who may either be
ascendant, or brother or sister of the propositus;
2. The PROPOSITUS, who receives the property
from an ascendant or brother or sister by
gratuitous title.
3. The RESERVOR, who acquires or receives the
property by operation of law from the propositus;
and
4. The RESERVEES, who are the relatives of the
origin and the propositus within the third degree
of consanguinity. This is also called the
DOUBLE or DUAL DEGREE OF
RELATIONSHIP.
The point of reference is the PROPOSITUS. Hence, the
ascendant, or brother or sister, who is the origin of the
property, must be a legitimate ascendant or brother or
sister of the PROPOSITUS; the ascendant reservoir
must be a legitimate ascendant of the PROPOSITUS;
the reserves must be legitimate relatives within the third
degree of the PROPOSITUS.
SIMILARITY BETWEEN A FIDUCIARY HEIR AND
RESERVOR
In the case of fideicommissary substitution, the fiduciary
heir holds the property in the concept of a usufructuary
because as the first heir, he is called upon to preserve
and to deliver the inheritance to the fideicommissary
heir. It is like holding something in trust for another.
In reserva troncal, the same thing does not happen even
though the property is held for the benefit of another,
called the reservees. The reservor holds the property for
the benefit of the reservee but not for the same as that of
fideicommissary substitution.
In fideicommissary substitution, the law says, “to
preserve” the property for the benefit of the second heir.
Such words “to preserve” do not exist in reserva troncal,
which means the reservor acquires the property as
owner.
In the case of fideicommissary substitution, ownership is
not acquired by the fiduciary heir because the order of
the testator is only for him to preserve and to deliver said
property to the second heir. From the time the fiduciary
heir holds the property up to the time it is delivered to the
fideicommissary heir, the fiduciary heir is given the right
to use and enjoy the property. What he acquires is
merely the right to use but he does not acquire
ownership of the property. There is nothing in the law of
fideicommissary substitution which says that ownership
passes to the first heir. As a matter of fact, on the
contrary, the mandate of the testator is for the fiduciary
heir to hold or possess and preserve it for the benefit of
the second heir.
In the case of reserva troncal, the reservor acquires the
property in the concept of an owner. He holds it as an
owner of the property during his lifetime.
Q: For how long may a fiduciary heir hold the property?
A: It depends upon the instructions of the testator
because the testator can fix the period of delivery of the
property to fideicommissary heir. It is only when the
testator does not fix the period that the fiduciary heir can
hold the property during his lifetime. This does not apply
in reserva troncal. The law does not fix the period for
there is no need because the reservor acquires the
property as owner.
Q: In reserva troncal, what must the reservees do to
protect their interest in the reservable property?
A: The reservees have the right to annotate the
reservable character of the property at the back of the
title of the property.
(RIGHTS OF RESERVEES DURING THE LIFETIME OF
RESERVOR:
1. To the annotation of the reservable
character;
2. To demand the making of an inventory and
the giving of a security;
3. To alienate the right to the reservable
property. [EDROSO vs. SABLAN]; [SIENES
vs. ESPARCIA])
The Court held in Edroso vs Sablan that the reservees
during the life of the reservor have a mere expectancy
so they cannot in any way alienate. However, said ruling
has been abandoned when the Supreme Court, in the
case of Sienes vs Esparcia, ruled that the alienation of
the reservable property by the reservees during the
lifetime of the reservor is VALID but effective only on the
death of the reservor, provided that the reservee who
sold must survive the reservor.
Q: Within what time should the annotation be made?
A: Under the Spanish Mortgage Law, the annotation
must be made within 90 days. But the law in force now is
the Land Registration Act (Act 496). Under said law, the
law does not fix for the making of the annotation. It can
be done anytime.
Q: Suppose the reservee does not annotate the
reservable character of the property on the title covering
said property, and the property is disposed of by the
reservor, what will be the right of the person to whom the
disposition has been made?
A: The right of the person to whom the disposition has
been made or simply called the buyer must be qualified.
If the buyer has knowledge of the reservable character
of the property, he is considered as a buyer in bad faith
even though there is no annotation that has been made
regarding its reservable character.
If the buyer has no knowledge of the reservable
character of the property, he is considered as a buyer in
good faith provided there is no annotation that has been
made regarding its reservable character.
Q: Who has a preferred right over the property, the
buyer in good faith or the reservee?
A: The buyer in good faith has a preferred right over the
property. However, the reservee can go after the
reservor for the value of the property which will have to
be taken from the assets of the reservor.
Q: During the lifetime of the reservor, he holds the
property in the concept of owner. As owner of the
property, does he have the right to dispose of said
property?
A: Yes, because he is the owner.
Q: Can that property be used as a payment for the
obligation of the reservor?
A: It depends. If the property was used as a payment for DECEMBER 6, 2017
the obligation of the reservor during his lifetime, he is the
owner of the reserva. But upon the death of the reservor,
the obligation to reserve ceases. The property that is
subject to the reserva now reverts to the reservees and
does not form part of the estate of the reservor.

Q: What should be the proceedings, so that the property

may now pass to the reservees?

A: None, because it passes automatically.

Q: Can the reservees waives their right over the

property?

A: Yes.

Q: Is there no law that requires the reservees to receive

the reserva?

A: Yes because the reservee can renounce his right over

the property. However, the property can still pass to
other reservees who did not make any waiver of the
same right.

Q: Suppose there are 3 reservees, one waived his right,

to whom will the property go?

A: To the remaining reservees. However, the

PROXIMITY RULE must be applied. It means that the
nearest excludes the farthest. In case there are
reservees who are not in the same degree within the 3 rd
degree of consanguinity, then proximity rule applies.

Q: Can the reservee dispose of their inchoate right over

the reservable property during the lifetime of the
reservor?

A: EDROSO vs. SABLAN; SIENES vs. ESPARCIA

The Court held in Edroso vs Sablan that the reservees

during the life of the reservor have a mere expectancy
so they cannot in any way alienate. Hence, there is
nothing to dispose of. One cannot dispose of something
that he or she does not have.

However, said ruling has been abandoned when the

Supreme Court, in the case of Sienes vs Esparcia, ruled
that the alienation of the reservable property by the
reservees during the lifetime of the reservor is VALID but
effective only on the death of the reservor, provided that
the reservee who sold must survive the reservor.

What is the status of the disposition of the reservable

property made by the reservee during the lifetime of the
reservor?

If the disposition is made during the lifetime of the

reservor, then it cannot be valid because there is nothing
to dispose of. But if it is made after the death of the
reservor, then it is valid.