SUCCESSION REVIEWER
 Based on “Jottings and Jurisprudence on the Law on
Succession” by Prof. Balane and Cases according to the
2006 Syllabus of Justice Hofileña
CHAPTER 1
GENERAL PROVISIONS
ART. 774. Succession is a mode of acquisition by
virtue of which the property, rights and
obligations to the extent of the value of the
inheritance, of a person are transmitted
through his death to another or others either
by his will or by operation of law.
 The Code has simplified the concept of succession and
treats it simply as one of the 7 Modes of Acquiring
Ownership as enumerated in Art712 of the NCC.
 7 MODES OF ACQUIRING OWNERSHIP
1. Occupation
2. Intellectual Creation
3. Law
4. Donation
5. Estate and Intestate Succession
6. Tradition
7. Prescription
 Overlap of Codal Definition with Art776
 Article 774 talks of “property, rights and obligations
to the extent of the value of the inheritance.”
 Article 776 talks of the “inheritance” as including
“all the property, rights and obligations of a person
which are not extinguished by his death.”
 For clarity and better correlation, Prof. Balane
opines that Art774 should rather read:
“Succession is a mode of acquisition by
virtue of which the inheritance of a person
is transmitted through his death to another
or others either by his will or by operation of
law.”
 And the inheritance which is transmitted through a
person’s death is defined by Article 776 to include
“all the property, rights and obligations of a person
which are not extinguished by his death.”
 What are Transmitted by Succession?
 Only Transmissible Rights and Obligations.
 General Rule – if the right or obligation is strictly
personal [intuitu personae], it is intransmissible;
otherwise it may be transmitted.
 Rule Regarding Pecuniary Obligations
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
 A literal construction of Art774 appears to imply
that money obligations of the deceased would pass
to the heirs, to the extent that they inherit from him.
• Seemingly, this article mandates that the
heirs receive the estate, and then pay off
the creditors.
 However, Philippine procedural law, as influenced
by the common-law system, lays down a different
method for the payment of money debts, as found
in Rules 88 to 90 of the Rules of Court. It is only
AFTER the debts are paid that the residue of
the estate is distributed among the successors.
 Rule 90, Sec1 provides for the When the Order for the
Distribution of Residue is made.
 According to the rule, when the debts, funeral
charges and expenses of administration, the
allowance to the widow and the inheritance tax
have all been paid, that is the only time that the
court shall assign the RESIDUE of the estate to
persons entitled to it.
 The rule also provides that there shall be no
distribution until the payment of the obligations
enumerated above, have been made or provided
for. However, if the distributees give a bond for the
payment of the said obligations within such time
and of such amount as fixed by the court, the
distribution may be allowed.
 In our system therefore, money debts are, properly
speaking, not transmitted to the heir nor paid by
them. The estate pays them and it is only what is
left after the debts are paid [residue] that are
transmitted to the heirs.
 Justice JBL Reyes observed that Philippine rules of
Succession Mortis Causa proceed from an imperfect
blending of 3 Systems with Contrasting Philosophies –
1. GERMANIC CONCEPT OF UNIVERSAL HEIR
• Heir directly and immediately steps into
the shoes of the deceased upon the latter’s
death
• At one single occasion [uno ictu]
• Without need of any formality
• En mass
• Automatic Subjective Novation
2. FRANCO-SPANISH SYSTEM
• Acquisition of estate by universal title but
only upon acceptance by the heir at any time,
with retroactive effect.
• Acceptance may be made any time
except when the creditors or the court
requires it be done within a certain time.
• This is the system followed by the NCC,
by having the following features:
a) Universality of Property Rights and
Obligations
b) Transmitted from the moment of
death
c) En bloc, as an entire mass
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SUCCESSION REVIEWER
d) Transmitted even before judicial
recognition of heirship.
3. ANGLO-AMERICAN [COMMON LAW] SYSTEM
• Estate must first be liquidated, assets
marshaled and the debts paid or settled
under judicial supervision, by an intervening
trustee or personal representative
[administrator or executor] before the net
residue is taken over by the successor.
• This is the system followed by the Rules
of Court, in that:
a) Executor or administrator has
possession and management of the
estate as long as necessary for the
payment of debts and expenses of
administration, with authority to exercise
the right of disposition.
b) Section 3 Rule 87 – action to recover
title or possession of lands in the hands
of the executor or administrator can be
maintained by the heir only upon the
order of the Court assigning such land to
the heir or devisee.
c) Section 1 Rule 90 – heirs may
recover their share only upon:
 Payment of debts, expenses
and taxes
 Hearing conducted by the court
 Court assigns the residue of the
estate to the heirs.
 As a result of the blending of these 3 systems, JBL
Reyes says that we are thus faced with divergent, if not
contradictory principles.
 Do the successors acquire the WHOLE of the
transmissible assets and liabilities of the decedent?
• Art774 – by virtue of succession the
property, rights and obligations, to the
extent of the value of the inheritance of a
person, are transmitted by and at the
moment of his death, implying a transfer
at that instant of the totality or universality
of assets and liabilities.
 Do the successors only acquire the RESIDUUM
remaining after payment of the debts, as implied by
the Rules of Court?
• Art1057 – within 30 days after the court
has issued an order for the distribution of
the estate in accordance with the RoC,
the heirs, devisees and legatees shall
signify to the court having jurisdiction,
whether they accept or repudiate the
inheritance.
• The order of distribution under the RoC is
issued only after the debts, taxes and
administration expenses have been paid;
hence it is arguable that the acceptance
can no longer refer to assets already
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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1ST SEM 2006-2007
disposed of by the administrator, but must
be limited to the net residue.
• But if title vests in the heir as of the death
of the decedent then the acceptance of
the heir becomes entirely superfluous,
and the law should limit itself to regulating
the effects the effects of a repudiation by
an heir or legatee, and its retroactive
effect.
 Or do the successors acquire only the NAKED
TITLE at the death of the predecessor, but with
possession or enjoyment vested in the
administrator or personal representative until after
settlement of the claims against the estate?
 RESULT of these divergent rules – Creditors must now
pursue their claims during the settlement proceedings
and not against the heirs individually.
CASE
Union Bank v. Santibañez
- On May 31, 1980, First Country Credit Corporation (FCCC)
and Efraim M. Santibanez entered into a loan agreement in
the amount of P128,000 which was intended for the
payment of the purchase price of 1 unit of a tractor. In view
of this, Efraim and his son, Edmund executed a promissory
note in favor of FCCC.
- On Dec. 13, 1980, FCCC and Efraim entered into another
similar loan agreement which was intended to pay the
balance of the purchase price of another unit of a tractor.
And again, father and son executed a promissory note for
the said amount in favor of FCCC.
- However, sometime in Feb 1981, Efraim died, leaving a
holographic will and subsequently testate proceedings were
commenced before the RTC of Iloilo with Edmund being
appointed as the special administrator of the estate of the
decedent.
- During the pendency of the testate proceedings, Edmund
and his sister, Florence Santibanez Ariola, executed a joint
agreement on July 22, 1981 wherein they agreed to divide
between themselves and take possession of the 3 tractors; 2
for Edmund and 1 for Florence, each of them to assume
indebtedness of their late father to FCCC.
- On August 20, 1981 a deed of assignment with assumption
of liabilities was executed by and between FCCC and Union
Savings and Mortgage Bank, wherein FCCC as the
assignor, assigned all its assets and liabilities to Union
Savings and Mortgage Bank.
- Not long after, demand letter for the settlement of the
account were sent by Union Bank to Edmund but the latter
refused to pay. Thus Union Bank filed a complaint for sum of
money against the Edmund and Florence before the RTC of
Makati.
- However the case was dismissed. The lower court said that
the claim should have been filed with the probate court were
the testate estate of Efraim was pending. Furthermore, the
agreement was void considering that the probate court did
not approve the agreement and no valid partition until after
the will has been probated.
- Also, the list of assets and liabilities of Union Bank did not
clearly refer to the decedent’s account. Also, it was
contended that the obligation of the deceased had passed to
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SUCCESSION REVIEWER
his legitimate children and heirs already, in this case
Edmund and Efraim. CA affirmed RTC decision.
- Hence this appeal.
WON the partition in the Agreement executed by the heirs is
valid.
- No, there can be no valid partition among the heirs until after
the will has been probated by the probate court. This is
specially because when the joint agreement executed by
Edmund and Florence partitioning the tractors among
themselves were executed, there was already a pending
proceeding for the probate of their late father’s holographic
will covering the said tractors. Thus the probate court had
already acquired jurisdiction over the said tractors which
they can’t be divested of. Any extrajudicial agreement needs
court approval.
WON the heirs’ assumption of the indebtedness of the
deceased is valid.
- No, the assumption of the indebtedness of the decedent by
Edmund and Florence is not binding. Such assumption was
conditioned upon the agreement above. Hence, when the
agreement of partition between Edmund and Florence was
invalidated, then the assumption of the indebtedness cannot
be given and force and effect. Also, the court should have
filed it money claim against the decedent’s estate in the
probate court. Furthermore, it cannot go after Florence for
she took no part in the documents related to the tractors,
specifically the promissory notes and the continuing
guaranty agreement; they should have gone after Edmund
being a co-signatory to the promissory notes and guaranty.
WON the Union Bank can hold the heirs liable on the obligation
of the deceased.
- No, Union Bank cannot hold the heirs liable on the obligation
of the deceased because it had not sufficiently shown that it
is the successor-in-interest of the Union Savings and
Mortgage Bank to which the FCCC assigned its assets and
liabilities. Furthermore, the documentary evidence clearly
reflects that the parties in the deed of assignment with
assumption of liabilities were the FCCC, and the Union
Savings and Mortgage Bank, with the conformity of Bancom
Philippine Holdings, Inc. Nowhere can the participation
therein of Union Bank as a party can be found. As a result,
Union Bank has no personality to file the complaint and
therefore cannot hold the heirs liable for the obligation of the
deceased.
 In a sense, it can be said that even money debts are
transmitted to and paid for by the heirs, but this would
be by mere indirection –
 Because whatever payment is thus made from the
estate is ultimately a payment by the heirs and
distributes, since the amount of the paid claim in
fact diminishes or reduces the shares that the heirs
would have been entitled to receive.
 BUT only the payment of MONEY DEBTS has been
affected by the Rules of Court. The transmission of
other obligations not by nature personal follows the rule
in Art774 and is transmitted by succession.
CASE
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
Estate of K.H. Hemady v. Luzon Surety
- Luzon Surety filed a claim against the Estate based on 20
different indemnity agreements or counter bonds, each
subscribed by a distinct principal and by the deceased K.H.
Hemady, a surety solidary guarantor in all of them, in
consideration of Luzon Surety’s of having guaranteed, the
various principals in favor of different creditors.
- Luzon Surety also prayed for allowance, as a contingent
claim, of the value of the 20 bonds it had executed in
consideration of the counterbonds, and further asked for
judgment for the unpaid premiums and documentary stamps
affixed to the bonds with 12% interest.
- Before the answer was filed, the lower court dismissed the
claims of Luzon Surety, on two grounds: (1) that the
premiums due and cost of documentary stamps were not
contemplated under the indemnity agreements to be a part
of the undertaking of the guarantor (Hemady), since the
were not liabilities incurred after the execution of the
counterbonds; and (2) that “whatever losses may occur after
Hemady’s death, are not chargeable to his estate, because
upon his death he ceased to be guarantor.”
Whether losses are chargeable to Hemady’s Estate.
- YES. While in our successional system the responsibility of
the heirs for the debts of their decedent cannot exceed the
value of the inheritance they receive from him, the principle
remains intact that these heirs succeed not only to the rights
of the deceased but also to his obligations.
- Under the CC, the heirs, by virtue of the rights of succession
are subrogated to all the rights and obligations of the
deceased and cannot be regarded as third parties with
respect to a contract to which the deceased was a party,
touching the estate of the deceased.
- By contract, the articles of the Civil Code that regulate
guaranty or suretyship contain no provision that the guaranty
is extinguished upon the death of the guarantor or the
surety.
- Although Art. 2056 requires that one who is required to
furnish a guarantor must present a person who possesses
integrity, capacity to bind himself, and sufficient property to
answer for the obligation which he guarantees, it will be
noted that the law requires these qualities to be present only
at the time of the perfection of the contract of guaranty
- The contract of suretyship entered into by K.H. Hemady in
favor of Luzon Surety not being rendered intransmissible
due to the nature of the undertaking, nor by the stipulations
of the contracts themselves, nor by provision of law, his
eventual liability thereunder necessarily passed upon his
death to his heirs. The contracts, therefore, give rise to
contingent claims provable against his estate.
- The SC reversed the order of the lower court and instead
ordered the case be remanded to the CFI.
- The general rule is that a party’s contractual rights and
obligations are transmissible to the successors.
- Art. 1311 of NCC: Contracts take effect only as between the
parties, their assigns and heirs, except in the case where the
rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by provision
of law.
- Art. 774 of NCC: Succession is a mode of acquisition by
virtue of which the property, rights and obligations to the
extent of the value of the inheritance of a person are
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SUCCESSION REVIEWER
transmitted through his death to another or other either by
his will or by operation of law.
- Art. 776 of NCC: The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death.
- The binding effect of contracts upon the heirs of the
deceased party is not altered by the provision in the Rules of
Court that money debts of a deceased must be liquidated
and paid from the estate before the residue is distributed
among said heirs. The reasons is that whatever payment is
made from the estate is ultimately a payment by the heirs,
since the amount of the paid claim in fact diminishes or
reduces the shares that the heirs would have been entitled
to receive.
Alvarez v. IAC
- Aniceto Yanes owned a parcel of land identified as Lot 773
in Negros Occidental. He was survived by his children,
Rufino, Felipe, and Teodora.
- Aniceto left his children with Lots 773 and 823.
- Teodora cultivated part of Lot 823.
- Rufino and his children left the province to settle in other
places as a result of the outbreak of WWII.
- After the liberation, Rufino’s children went back to the land
to get the their share in the sugar produce. They were
informed that Santiago already owned Lot 773, and had the
corresponding TCTs.
- Santiago sold the land to Fuentabella.
- After Fuentabella died, the administratrix of his estate
(Arsenia) filed a motion requesting authority to sell Lot 773
(already subdivided to Lots 773-A and 773-B).
- The motion was granted and Arsenia sold the lands to
Alvarez.
- Teodora and Rufino’s children (Yaneses) filed a complaint in
CFI Negros Occidental for the “return” of the possession and
ownership of Lots 773 and 823.
- During the pendency of the case, Alvarez sold the land to
Siason.
- CFI ordered Alvarez to reconvey Lots 773 and 823 to the
Yaneses.
- Execution of the decision was unsuccessful with regard to
Lot 773 as it was already in the name of Siason.
- Another action was instituted by the Yaneses, this time
impleading Siason.
- Siason claims that he was a purchaser in good faith and
thus, he has title to Lot 773.
- CFI dismissed the complaint against Siason and ordered the
children of Alvarez to solidarily pay the Yaneses Php
20,000, representing the actual value of Lot 773.
WON it was correctly ruled that the children of Alvarez be
made responsible for the liability of their father (Alvarez).
- YES. The rights and obligations of the deceased are
generally transmissible to his legitimate children and heirs.
- As heirs of the late Alvarez, the children cannot escape the
consequences of their father’s transaction, which gave rise
to the present claim for damages.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
- The children are, however, liable only to the extent of the
value of their inheritance.
- Art. 774, NCC: Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the extent of
the value of the inheritance, of a person are transmitted
through his death to another or others either by his will or by
operation of law.
- Art. 776, NCC: The inheritance includes all the property,
rights and obligations of a person which are not extinguished
by his death.
ART. 775. In this Title, “decedent” is the general
term applied to the person whose property is
transmitted through succession, whether or
not he left a will. If he left a will, he is also
called the testator.
 Decedent – general term, person whose property is
transmitted
Testator – specific term, person who transmits his
property via a will.
 It is unfortunate that the Code does not use the term
“Intestate” to refer to a decedent who died without a
will, This would have prevented the ambiguity now
inherent in the term “decedent”
ART. 776. The inheritance includes all the
property, rights and obligations of a person
which are not extinguished by his death.
 Overlap of Codal Definition with Art776
 Article 774 talks of “property, rights and obligations
to the extent of the value of the inheritance.”
 Article 776 talks of the “inheritance” as including
“all the property, rights and obligations of a person
which are not extinguished by his death.”
 For clarity and better correlation, Prof. Balane
opines that Art774 should rather read:
“Succession is a mode of acquisition by
virtue of which the inheritance of a person
is transmitted through his death to another
or others either by his will or by operation of
law.”
 And the inheritance which is transmitted through a
person’s death is defined by Article 776 to include “all
the property, rights and obligations of a person which
are not extinguished by his death.”
ART. 777. The rights to the succession are
transmitted from the moment of the death of
the decedent.
 Time of Vesting of Successional Right
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SUCCESSION REVIEWER
 Prof. Balane says the terminology used in this article is
“infelicitous” because the right to the succession is not
transmitted; but rather vested.
 To say that it is transmitted upon death implies that
before the decedent’s death, the right to the
succession was possessed by the decedent [which
is absurd].
 To say that it vests upon death implies that before
the decedent’s death the right was merely inchoate
[which is correct].
 THE LAW PRESUMES THAT THE PERSON
SUCCEEDING –
1. Has a right to succeed by
a) Legitime [compulsory succession],
b) Will [testamentary succession], or
c) Law [intestate succession]
2. Has the legal capacity to succeed, and
3. Accepts the successional portion
 The vesting of the right occurs immediately upon
the decedent’s death; i.e. without a moment’s
interruption. From this principle, the following
consequences flow –
1. The law in force at the time of the decedent’s
death will determine who the heirs should be
• New Civil Code – August 30, 1950
2. Ownership passes to the heir at the very
moment of death, who therefore, from that
moment acquires the right to dispose of his share.
3. The heirs have the right to be substituted for
the deceased as party in an action that survives.
• Because the heir acquires ownership at
the moment of death and become parties
in interest.
 It should be emphasized that the operation of Art. 777
is at the very moment of the decedent’s death, meaning
the transmission by succession occurs at the
precise moment of death and therefore the heir,
devisee, or legatee is legally deemed to have
acquired ownership at that moment, even if,
particularly in the heir’s case, he will generally not
know how much he will be inheriting and what
properties he will ultimately be receiving, and not at
the time of declaration of heirs or partition or
distribution.
CASES
Uson v. Del Rosario
Law in force at time of decedent’s death
determines who the heirs should be.
- Maria Unson was the legal wife of Faustino Nebrada.
Faustino died in 1945 leaving 5 parcels of land with no other
heir except his legal wife.
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1ST SEM 2006-2007
- However, it was the common-life, Maria del Rosario who
took possession of the lands, depriving Unson the
enjoyment and possession of the same.
- Thus, the legal wife filed a case for recovery of ownership
and possession of the said parcels of land against del
Rosario.
- Maria de Rosario contended that Unson and Faustino
agreed to separate some time in 1931. Unson was given a
parcel of land as alimony on the condition that the latter will
renounce her right to inherit any property that may be left by
the husband upon his death.
- Whether or not Unson is entitled to recover the parcels of
land in question.
- The SC held for Maria Unson.
- The Civil Code provides that the inheritance of a person is
transmitted to another at the moment of his death.
- Accordingly, the Supreme Court said that the parcels of land
of Faustino passed from the moment of his death to his only
heir, Maria Unson.
- The contention that Unson and Faustino agreed that the
former would NOT inherit anything from the latter cannot be
made effectual. Future inheritance cannot be validly made
the subject of any contract nor can it be renounced.
- Del Rosario also argued that her illegitimate children with
Faustino have the right to inherit by virtue of the provision of
the new Civil Code granting successional rights to
illegitimate children.
- Said argument is untenable. It is true that the new Civil
Code grants successional rights to illegitimate children and
that this right shall be given retroactive effect even though
the event which gave rise to said right may have occurred
under the former legislation. (Faustino died in 1945, The
NCC took effect in 1950).
- However, according to the NCC, this new right must not
prejudice or impair any vested or acquired right.
- In this case, and as already explained, the right over the
parcels of land vested upon Unson from the moment of
death of Faustino. Thus, the new right cannot be enforced
w/out prejudice to Unson’s vested right over the properties.
- Rights over the inheritance of a person are transmitted upon
his death to another.
- ‘The property belongs to the heirs at the moment of death of
the ancestor as completely as if the ancestor had executed
and delivered to them a deed for the same before his death.”
De Borja v. De Borja
Ownership passes to heir at the
very moment of death, with right to dispose
- Francisco De Borja and Jose De Borja were co-
administrators of the testate estate of Josefa De Borja,
Francisco’s wife and Jose’s mother
- When Francisco died, Jose became the sole administrator in
the testate proceedings of his mother before the CFI of
Rizal.
- It appears that after the death of Josefa, widower Francisco
married Tasiana Ongsingco.
- Following the death of Francisco, Tasiana was appointed as
special administratrix in the testate proceedings of Francisco
before the CFI of Nueva Ecija.
- Multiple suits ensued between the children of the first
marriage and Tasiana until at some point, when both parties
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SUCCESSION REVIEWER
agreed to enter into a compromise agreement on October
12, 1963.
- In the said agreement, Jose De Borja, personally and as
administrator of the estate of Josefa, and Tasiana
Ongsingco, expressed their mutual desire to end the suits
between them by selling the Poblacion portion of the
Jalajala, Rizal properties of Francisco, from the proceeds of
which P800,000, representing P200,000 from each of the 4
children from the first marriage, shall be paid to Tasiana as
full and complete payment and settlement of Tasiana’s
hereditary share in the estate of Francisco as well as of
Josefa, and to any properties bequeathed or devised to her
by Francisco, by will or by donation purportedly conveyed
for consideration or otherwise.
- The CFI of Rizal approved the agreement whereas the CFI
of Nueva Ecija did not.
- Tasiana’s grounds for her opposition to the agreement after
it was submitted to the court for approval were: 1) no such
agreement is valid without first probating the will of
Francisco; 2) it compromises the validity of the marriage
between Francisco and Tasiana; and, 3) the resolutory 60-
day period had lapsed so that the agreement had ceased to
be valid.
- Tasiana cited Guevara v. Guevara which did not allow an
extrajudicial settlement of a decedent’s estate if there has
been left a will, stating that it was against the law and public
policy.
- Thus, pending probate of Francisco’s will when the
agreement was made, it was invalid.
Whether or not the compromise agreement was invalid without
first probating the will of Francisco.
- NO. The compromise agreement was valid.
- Guevara v. Guevara was inapplicable.
- Following a review of the provision in the agreement where
full and complete payment was made to Tasiana in the
amount of P800,000, it was clear that there was no attempt
to settle or distribute Francisco’s estate before the probate of
his will.
- Its object was conveyance by Tasiana of her individual
share and interest, actual or eventual, in the estates of
Francisco and Josefa.
- A hereditary share in a decedent’s estate is transmitted or
vested immediately from the moment of the death of such
causante or predecessor in interest (Art. 777, NCC.)
- Thus, there is no legal bar to a successor (with requisite
contracting capacity) disposing of his or her hereditary share
immediately after such death, even if the actual extent of
such share is not determined until the subsequent liquidation
of the estate.
- The effect of such alienation is limited to what is ultimately
adjudicated to the vendor heir.
- Moreover, as surviving spouse of Francisco’s, Tasiana was
a compulsory heir so that her successional interest existed
independent of Francisco’s will and testament and would
exist even if such were not probated at all.
- Also, the agreement bound the parties, in their individual
capacities, upon the perfection of the contract, even absent
a previous authority from the Court.
- The only difference between an extrajudicial compromise
and one submitted and approved by the court is that the
latter is enforceable by execution proceedings.
Whether or not the agreement compromises the status and
validity of the marriage between Francisco and Tasiana.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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1ST SEM 2006-2007
- NO. In the very opening paragraph of the agreement itself,
she was described as the heir and surviving spouse of
Francisco De Borja which was a definite admission of her
civil status.
Whether or not the compromise agreement had ceased to be
valid.
- NO. Jose’s act of seeking a court order for the approval and
enforcement of the agreement is justified as said agreement
had not been abandoned and not invalidated by the inability
of the parties to reach a novatory accord in a quest for a
more satisfactory compromise following Tasiana’s unilateral
attempts to back out from the same.
- A hereditary share in a decedent’s estate is transmitted or
vested immediately from the moment of the death of such
causante or predecessor in interest (Art. 777, NCC.)
- Thus, there is no legal bar to a successor (with requisite
contracting capacity) disposing of his or her hereditary share
immediately after such death, even if the actual extent of
such share is not determined until the subsequent liquidation
of the estate.
- The effect of such alienation is limited to what is ultimately
adjudicated to the vendor heir.
- The only difference between an extrajudicial compromise
and one submitted and approved by the court is that the
latter is enforceable by execution proceedings.
Bonilla v. Barcena
Heirs have right to be substituted for deceased
in an action that survives.
- On March 31, 1975 Fortunata Barcena, mother of minors
Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano
Bonilla, instituted a civil action in the Court of First Instance
of Abra, to quiet title over certain parcels of land located in
Abra.
- On August 4, 1975, the defendants filed a motion to dismiss
the complaint on the ground that Fortunata Barcena is dead
and, therefore, has no legal capacity to sue.
- During the hearing, counsel for the plaintiff confirmed the
death of Fortunata Barcena and asked for substitution by her
minor children and her husband, the petitioners herein; but
the court after the hearing immediately dismissed the case
on the ground that a dead person cannot be a real party in
interest and has no legal personality to sue.
- Whether the court acted correctly in dismissing the
complaint on the ground that the plaintiff, who had died
pending the proceedings, has no more personality to sue.
- While it is true that a person who is dead cannot sue in
court, yet he can be substituted by his heirs in pursuing the
case up to its completion.
- The court had acquired jurisdiction over the person of the
deceased. If thereafter she died, Section 16, Rule 3 of the
Rules of Court provides that "whenever a party to a pending
case dies . . . it shall be the duty of his attorney to inform the
court promptly of such death . . . and to give the name and
residence of his executor, administrator, guardian or other
legal representatives." This duty was complied with by the
counsel for the deceased plaintiff when he manifested
before the respondent Court that Fortunata Barcena died on
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SUCCESSION REVIEWER
July 9, 1975 and asked for the proper substitution of parties
in the case.
- Article 777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of
the decedent." From the moment of the death of the
decedent, the heirs become the absolute owners of his
property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto
except by the methods provided for by law. The moment of
death is the determining factor when the heirs acquire a
definite right to the inheritance whether such right be pure or
contingent. The right of the heirs to the property of the
deceased vests in them even before judicial declaration of
their being heirs in the testate or intestate proceedings.
When Fortunata Barcena, therefore, died her claim or right
to the parcels of land in litigation was not extinguished by
her death but was transmitted to her heirs upon her death.
Her heirs have thus acquired interest in the properties in
litigation and became parties in interest in the case. There
is, therefore, no reason for the Court to disallow their
substitution as parties in interest for the deceased plaintiff.
- Likewise, when counsel asked that the minor children be
substituted for the deceased and suggested that the uncle
be appointed as guardian ad litem for them because their
father is busy earning a living for the family, it is grave error
for the court to refuse the request for substitution on the
ground that the children were still minors and cannot sue,
because it ought to know that Section 17, Rule 3 of the
Rules of Court, directs the Court to appoint a guardian ad
litem for the minor.
- From the moment of the death of the decedent, the heirs
become the absolute owners of his property, subject to the
rights and obligations of the decedent, and they cannot be
deprived of right thereto except by the methods provided for
by law. The moment of death is the determining factor where
the heirs acquire a definite right to the inheritance whether
such right to be pure or contingent. The right of the heirs to
the property of the deceased vests in them even before
judicial declaration of their being heirs in the testate or
intestate proceedings.
Cases for Articles 774-777
Heirs of Spouses Sandejas v. Lina
- Eliosoro Sandejas was appointed administrator for the
settlement of the estate of his wife, Remedios.
- He eventually sold parcels of land to Alex Lina, who agreed
to buy it for P1M.
- Eliosoro eventually died and Alex Lina was appointed new
administrator of the estate of Remedios.
- The heirs of Sandejas now filed a MR for the appointment of
a new administrator.
- Lina filed a Motion to approve the deed of conditional sale.
Whether or not Eliosoro is legally obligated to convey title to
the property which is found by the lower court to be a contract
to sell.
- NO. Because the condition is the procurement of court
approval and not the payment of the purchase price.
Whether or not the probate court has jurisdiction over the
approval of the sale.
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- YES. SC held that probate court has jurisdiction over it since
it covers all matters relating to the settlement of estates and
the probate of wills of deceased persons, including the
appointment and removal of administrators and executors. It
also extends to incidental and collateral matters such as
selling, mortgaging or otherwise encumbering real property
belonging to the estate.
- The stipulation requiring court approval does not affect the
validity and the effectivity of the sale as regards the selling
heirs. It merely implies that that the property may be taken
out of custodia legis, only with court’s permission.
Whether or not Lina can apply to the court for the approval of
the sale.
- Because the other heirs did not consent to the sale of their
ideal shares in the disputed lots, it is only limited to the pro-
indiviso share of Eliosoro.
- The proper party must be the one who is to be benefited or
injured by the judgment, or one who is to be entitled to the
avails of the suit.
Whether or not Eliosoro is in bad faith
- NO. SC held that he is not in bad faith because: (1) he
informed Lina of the need to secure court approval prior to
the sale of the lots, and (2) he did not promise he could
obtain the approval.
How much is Eliosoro’s share in the property?
- SC held that his share is 11/20 of the entire property
because he owned ½ of these lots plus a further 1/10 of the
remaining half, in his capacity as one of the legal heirs.
Limjoco v. Intestate of Flagrante
- Assailed is the decision of the Public Service Commission
granting a certificate of public convenience to install,
maintain and operate an ice plant in San Juan to the
Intestate Estate of Pedro O. Fragrante.
- Fragrante died pending the conclusion of his application to
Commission.
- The Commission granted the application in view of the
financial ability of the estate to maintain and operate the ice
plant
Whether the substitution of the legal representative of the
Estate of Fragante for the latter as party applicant in the case
pending before the Commission be allowed.
- Yes. Had Fragante not died, he would have the right to
prosecute his application to its final conclusion. This right
did not lapse through his death. Hence, it constitutes a part
of the assets of his estate, for such a right was property
despite the possibility that the application may be denied. A
certificate of public convenience once granted should
descend to the estate as an asset. Such certificate would
certainly be property and the right to acquire such belonged
to the decedent in his lifetime and survived to his estate and
judicial administrator after his death.
Whether the Estate of Fragante is a person within the meaning
of the Public Service Act.
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SUCCESSION REVIEWER
- Yes. The Supreme Court of Indiana declared that a
collection of property to which the law attributes the capacity
of having rights and duties, such as the estate of a
deceased, is an artificial person, and to rule otherwise would
result in a failure of justice. In this case, there would also be
a failure of justice if the estate would not be regarded as a
person as it would prejudice Fragante’s investment of Php.
35T.
Whether the Estate of Fragante can be considered as a citizen
of the Philippines.
- Yes. The fiction of extension of the citizenship of Fragante
is grounded upon the same principle as that of the extension
of his personality.
- The decedent’s rights which by their nature are not
extinguished by death go to make up a part and parcel of
the assets of his estate, which, being placed under the
control and management of the administrator, can not be
exercised but by him in representation of the estate for the
benefit of the creditors, devisees or legatees and heirs.
- Real property, as estate or interest, have also been declared
to include every species of title, inchoate or complete and
embrace rights which lie in contract, whether executory or
executed.
- It is the estate or mass of property, rights and assets left by
the decedent, instead of the heirs directly, that becomes
vested and charged with his rights and obligations which
survive after his demise. This doctrine is an abrogation of
art. 661 of the Civil Code brought about by the enactment of
the Code of Civil Procedure.
ART. 778. Succession may be:
(1) Testamentary
(2) Legal or Intestate, or
(3) Mixed
ART. 779. Testamentary succession is that which
results from the designation of an heir, made
in a will executed in the form prescribed by
law.
ART. 780. Mixed succession is that effected partly
by will and partly by operation of law.
 3 KINDS OF SUCCESSION ACCDG TO ART. 778:
1. TESTAMENTARY
• That which results from the designation of
an heir, made in a will.
2. LEGAL OR INTESTATE
• Lost definition: “takes place by operation
of law in the absence of a valid will.”
3. MIXED
• That effected partly by will and partly by
operation of law.
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 Some observations –
 Enumeration cannot satisfactorily accommodate
the system of legitimes.
• Legal or intestate succession operates
only in default of a will [Arts960 and 961],
while the legitime operates whether or not
there is a will, in fact prevails over a will.
• There are instances where the rules on
legitime [Arts 887..] operate, to the exclusion
of the rules on intestacy [Arts 960..]
• It is therefore best for clarity, to classify
succession to the legitime as a separate and
distinct kind of succession, which, for want of
a better term, can be denominated
compulsory succession.
 Until the effectivity of the Family Code, there was
one exceptional case of succession by contract
[contractual succession] found in Article 130 of Civil
Code.
ART 130. The future spouses may
give each other in their marriage
settlements as much as one-fifth of their
present property, and with respect to
their future property, only in the event of
death, to the extent laid down by the
provisions of this Code referring to
testamentary succession.
• Donations propter nuptias of future
property, made by one of the future spouses
to the other, took effect mortis cause, and had
only to be done in the marriage settlements,
which were governed only by the Statute of
Frauds.
• It was the only instance of Contractual
Succession in our civil law.
• This has been eliminated by the Family
Code in Article 84 paragraph 2:
“Donations of future property shall
be governed by the provisions on
testamentary succession and the
formalities of wills.”
• Since under the provision, any donation of
future property between the affianced couple
is to be governed by the rules of testamentary
succession and the forms of wills, contractual
succession no longer exists in this
jurisdiction.
• Such a donation becomes an ordinary
case of testamentary succession.
 FOUR KINDS OF SUCCESSION ACCORDING TO
IMPORTANCE [Prof. Balane]
1. COMPULSORY
• Succession to the legitime
• Prevails over all other kinds
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SUCCESSION REVIEWER
2. TESTAMENTARY [Art. 779]
• Succession by will
3. INTESTATE
• Succession in default of a will
4. MIXED [Art. 780]
• Not a distinct kind really, but a
combination of any two or all of the first
three.
ART. 781. The inheritance of a person includes
not only the property and the transmissible
rights and obligations existing at the time of
his death, but also those which have accrued
thereto since the opening of the succession.
 Article 781 is best deleted; it serves only to confuse.
 The inheritance includes only those things enumerated
in Article 776. Whatever accrues thereto after the
decedent’s death [which is when the succession opens]
belongs to the heir, not by virtue of succession, but by
virtue of ownership.
 To say, as Art781 does, that accruals to the inheritance
after the decedent’s death are included in the
inheritance is to negate the principle in Art777 that
transmission takes place precisely at the moment of
death.
 Once the decedent dies and the heir inherits, the
fruits of the property or inheritance belongs to the
heir by accession, and not by succession. This is
so even if the heir does not actually receive the
inheritance.
 Art781 should have left well enough alone.
 Question – If the assets left behind by the decedent are
not sufficient to pay the debts, may the creditors claims
the fruits produced by the decedent’s property after his
death? Or do these fruits pertain to the heirs?
 But wouldn’t the debts be deducted from the estate
first before the properties are distributed to the
heirs?
ART. 782. An heir is a person called to the
succession either by the provision of a will or
by operation of law.
Devisees and legatees are persons to
whom gifts of real and personal property are
respectively given by virtue of a will.
 HEIR – person called to the succession either by will or
by law
DEVISEE – persons to whom gifts of real property are
given by virtue of a will.
LEGATEE – persons to whom gifts of personal
property are given by virtue of a will.
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 The distinction between an heir and a devisee or
legatee is important because on this distinction
depends the correct application of Art854 on preterition.
 In cases of preterition, the institution of an heir is
annulled, while the institution of legatees and devisees
is effective to the extent that the legitimes are not
impaired.
 The codal definitions are neither clear nor very helpful.
They are so open-ended that an heir can fall under the
definition of a legatee/devisee and vice-versa.
 “I give X my fishpond in Navotas” – by definition of
heir, is not X called to the succession by provision
of a will and therefore an heir?
 “I give X ¼ of my estate” – if in the partition, X
receives a fishpond, can X, by definition, not be
considered a devisee, having received a gift of real
property by will?
 The definitions of the Spanish Code in conjunction with
Castan’s explanations are more helpful:
• HEIR – one who succeeds to the WHOLE or an
Aliquot part of the inheritance
• DEVISEE / LEGATEE – those who succeed to
definite, specific, and individual
properties.
Case for Arts. 778-782
DKC Holdings Corp. v. CA
- DKC entered into a Contract of Lease with Option to Buy
with Encarnacion Bartolome, whereby DKC was given the
option to lease or lease with purchase a land belonging to
Encarnacion, which option must be exercised within 2 years
from the signing of the Contract.
- In turn, DKC undertook to pay Php 3,000 a month for the
reservation of its option.
- DKC regularly paid the monthly Php 3,000 until
Encarnacion’s death. Thereafter, DKC coursed its payment
to Victor, the son and sole heir of Encarnacion. However,
Victor refused to accept these payments.
- Meanwhile, Victor executed an Affidavit of Self-Adjudication
over all the properties of Encarnacion, including the subject
lot. Thus, a new TCT was issued in the name of Victor.
- Later, DKC gave notice to Victor that it was exercising its
option to lease the property tendering the amount of Php
15,000 as rent.
- Again, Victor refused to accept the payment and to
surrender passion of the property.
- DKC thus opened a savings account in the name of Victor
and deposited therein the rental fee.
- DKC also tried to register and annotate the Contract on the
title of Victor but the Register of Deeds refused to register or
annotate the same.
- Thus, DKC filed a complaint for specific performance and
damages.
- In the course of the proceedings, a certain Lozano, who
claimed that he was and has been a tenant-tiller of the lot for
45 years, filed a Motion for Intervention.
- The RTC denied Lozano’s Motion and dismissed the
complaint filed by DKC.
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SUCCESSION REVIEWER 1ST SEM 2006-2007

- Whether the Contract of Lease with Option to Buy entered

into by the late Encarnacion Bartolome with DKC was Subsection 1 – Wills in General
terminated upon her death or whether it binds her sole heir,
Victor, even after her demise.
- The SC held that Victor is bound by the Contract of Lease
with Option to Buy. ART. 783. A will is an act whereby a person is
- Article 1311 of the NCC provides: Contracts take effect only permitted, with the formalities prescribed by
between the parties, their assigns and heirs, except in case law, to control to a certain degree the
where the rights and obligations arising therefrom are not disposition of his estate, to take effect after
transmissible by (1) their nature, (2) stipulation or (3)
his death.
provision of law.
- In this case, there is neither contractual stipulation nor legal
provision making the rights and obligation under the contract  Operative Words in the Definition
intransmissible. More importantly, the nature of the rights 1. ACT
and obligations therein are, by their nature, transmissible. • The definition of a will as an act is too
- Where the service or act is of such a character that it may be broad and should have been more clearly
performed by another, or where the contract, by its terms, delimited with a more specific term such as
shows the performance by others was contemplated, death instrument or document, in view of the
does not terminate the contract or excuse nonperformance.
provision of Art804 that “every will must be in
- In this case, there is no personal act required from the late
writing.”
Encarnacion. Rather, the obligation of Encarnacion to
deliver possession of the property may very well be • NUNCUPATIVE or oral wills are not
performed by Victor. recognized in our Code, unlike the Spanish
- Also, the subject matter of the contract is a lease, a property Civil Code wherein military wills could be oral.
right. The death of a party does not excuse nonperformance
of a contract which involves a property right, and the rights 2. PERMITTED
and obligations thereunder pass to the personal • Will-making is purely statutory.
representatives of the deceased.
3. FORMALITIES PRESCRIBED BY LAW
- Since DKC exercised its option in accordance with the
contract, the SC held that Victor has the obligation to • The requirement of form prescribed
surrender possession of and lease of premises for 6 years. respectively for attested and holographic
However, SC held that the issue of tenancy should be wills.
ventilated in another proceeding. 4. CONTROL TO A CERTAIN DEGREE
- The general rule, therefore, is that heirs are bound by • The testator’s power of testamentary
contracts entered into by their predecessors-in-interest disposition is limited by the rules on legitimes.
except when the rights and obligations arising therefrom are
not transmissible by (1) their nature, (2) stipulation or (3) 5. AFTER HIS DEATH
provision of law. • Testamentary succession, like all other
- Where acts stipulated in a contract require the exercise of kinds of succession in our Code, is mortis
special knowledge, genius, skill, taste, ability, experience, causa.
judgment, discretion, integrity, or other personal qualification
of one or both parties, the agreement is of personal nature,
and terminates on the death of the party who is required to
render such service.
- There is privity of interest between an heir and his deceased
predecessor – he only succeeds to what rights his
predecessor had and what is valid and binding against the
latter is also valid and binding against the former.
- The death of a party does not excuse nonperformance of a
contract which involves a property right, and the rights and
obligations thereunder pass to the personal representatives
of the deceased. Similarly, nonperformance is not excused
by the death of the party when the other party has a property
interest in the subject matter of the contract.

CHAPTER 2
TESTAMENTARY SUCCESSION

SECTION 1 – WILLS

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CHARACTERISTICS OF WILLS
1. PURELY PERSONAL
• Articles 784, 785 and 787
2. FREE AND INTELLIGENT
• Article 839
• The testator’s consent should not be
vitiated by the causes mentioned in Article 839
paragraphs 2-6 on Insanity, Violence,
Intimidation, Undue Influence, Fraud and
Mistake.
3. SOLEMN AND FORMAL
• Articles 804-814 and 820-821
• The requirements of form depend on
whether the will is attested or holographic.
• Articles 805-808 and 820-821 govern
attested wills. Articles 810-814 govern
holographic wills. Article 804 applies to both.
4. REVOCABLE AND AMBULATORY
• Article 828
5. MORTIS CAUSA
• Article 783
• This is a necessary consequence of
Articles 774 and 777.
6. INDIVIDUAL
• Article 818
• Joint wills are prohibited in
jurisdiction.
7. EXECUTED WITH ANIMUS TESTANDI
• This characteristic is implied in Article
783
• Rizal’s valedictory poem “Ultimo
Adios” was not a will. An instrument which
merely expresses a last wish as a thought or
advice but does not contain a disposition of
property and was not executed with animus
testandi, cannot be legally considered a will.
8. EXECUTED WITH TESTAMENTARY CAPACITY
• Articles 796 – 803 on testamentary
capacity and intent
9. UNILATERAL
• This characteristic is implied in Article
783
10. DISPOSITIVE OF PROPERTY
• Article 783 seems to consider the
disposition of the testator’s estate mortis causa
as the purpose of will-making.
 The present Civil Code seems to limit the concept of a
will to a disposition of property to take effect upon and
after death.
 It is only when the will disposes of property, wither
directly or indirectly, that it has to be probated. When
there is no disposition of property, it is submitted that,
although the instrument may be considered as a will, it
does not have to be probated; its dispositions which are
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provided by law, such as the acknowledgment of a
natural child or the order that the patria potestas of the
widow shall continue after her remarriage, can be give
effect even without probating the will.
 Questions
 Would a document merely appointing an executor,
not containing any dispositive provision, have to
comply with the formal requirements of a will in
order to be effective? Would such a document
have to be probated?
• Justice Hofilena says NO, because there
is no disposition and such appointment
would not be under the category of a will.
Therefore, the formal requirements of a
will do not apply.
 Would a document containing only a disinheriting
clause have to be in the form of a will and be
probated? [Article 916]
• YES. According to Art916, disinheritance
can be effected only through a will
wherein the legal cause therefore shall be
specified.
• A valid disinheritance is in effect a
disposition of the property of the testator
in favor of those who would succeed in
the absence of the disinherited heir.
Unless the will is probated, the
disinheritance cannot be given effect.
this
CASES
Vitug v. CA
- Romarico Vitug and Nenita Alonte were co-administrators of
Dolores Vitug’s (deceased) estate. Rowena Corona was the
executrix.
- Romarico, the deceased’s husband, filed a motion with the
probate court asking for authority to sell certain shares of
stock and real properties belonging to the estate to cover
alleged advances to the estate, which he claimed as
personal funds.
- The advances were used to pay estate taxes.
- Corona opposed the motion on ground that the advances
came from a savings account which formed part of the
conjugal partnership properties and is part of the estate.
Thus, there was no ground for reimbursement.
- Romarico claims that the funds are his exclusive property,
having been acquired through a survivorship agreement
executed with his late wife and the bank.
- The agreement stated that after the death of either one of
the spouses, the savings account shall belong to and be the
sole property of the survivor, and shall be payable to and
collectible or withdrawable by such survivor.
- The lower court upheld the validity of the agreement and
granted the motion to sell.
- CA reversed stating that the survivorship agreement
constitutes a conveyance mortis causa which did not comply
with the formalities of a valid will. Assuming that it was a
donation inter vivos, it is a prohibited donation (donation
between spouses).
- WON the survivorship agreement was valid.
- YES.
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SUCCESSION REVIEWER
- The conveyance is not mortis causa, which should be
embodied in a will. A will is a personal, solemn, revocable
and free act by which a capacitated person disposes of his
property and rights and declares or complies with duties to
take effect after his death. The bequest or devise must
pertain to the testator.
- In this case, the savings account involved was in the nature
of conjugal funds.
- Since it was not shown that the funds belonged exclusively
to one party, it is presumed to be conjugal.
- It is also not a donation inter vivos because it was to take
effect after the death of one party. It is also not a donation
between spouses because it involved no conveyance of a
spouse’s own properties to the other.
- It was an error to include the savings account in the
inventory of the deceased’s assets because it is the
separate property of Romarico.
- Thus, Romarico had the right to claim reimbursement.
- A will is a personal, solemn, revocable and free act by which
a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his
death.
- Survivorship agreements are permitted by the NCC.
However, its operation or effect must not be violative of the
law (i.e. used as a cloak to hide an inofficious donation or to
transfer property in fraud of creditors or to defeat the legitime
of a forced heir).
ART. 784. The making of a will is a strictly
personal act; it cannot be left in whole or in
part to the discretion of a third person, or
accomplished through the instrumentality of
an agent or attorney.
 This provision gives the will its purely personal
character.
 NON-DELEGABILITY OF WILL-MAKING –
 It is the exercise of the disposing power that
cannot be delegated.
 Obviously, mechanical aspects, such as typing, do
not fall within the prohibition.
ART. 785. The duration or efficacy of the
designation of heirs, devisees or legatees, or
the determination of the portions which they
are to take, when referred to by name, cannot
be left to the discretion of a third person.
 What Constitute the Essence of Will-Making or the
Exercise of the Disposing Power? The ff are non-
delegable:
1. The designation of heirs, devisees or legatees
2. The duration of efficacy of such designation,
including such things as conditions, terms,
substitutions;
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3. The determination of the portions they are to
receive.
ART. 786. The testator may entrust to a third
person the distribution of specific property or
sums of money that he may leave in general
to specified classes or causes, and also the
designation of the persons, institutions or
establishments to which such property or
sums are to be given or applied.
 Exception to the Rule on Non-Delegability of Will-
Making. Without this provision, the things allowed to be
delegated here would be non-delegable.
 TWO THINGS MUST BE DETERMINED BY THE
TESTATOR –
1. The property or amount of money to be given;
and
2. The class or the cause to be benefited.
 TWO THINGS MAY BE DELEGATED BY THE
TESTATOR –
1. The designation of persons, institutions, or
establishments within the class or cause;
2. The manner of distribution
 Question – Suppose the testator specified the
recipients by specific designation but left to the 3rd
person the determination of the sharing, ex. “I leave
P500,000 for the PNRC, the SPCA, and the Tala
Leprosarium, to be distributed among these institutions
in such proportions as my executor may determine.”
Valid?
 One View – Article 785 seems to prohibit this,
because the recipients are referred to by name and
therefore the portions they are to take must be
determined by the testator. Article 786 applies only
where the testator merely specifies the class or the
cause but not the specific recipients.
 Contra – This actually involves a lesser discretion
for the 3rd person than the instances allowed by
Article 786 and should be allowed.
ART. 787. The testator may not make a
testamentary disposition in such manner that
another person has to determine whether or
not it is to be operative.
 This rule is consistent with, and reinforces, the purely
person character of a will, laid down in Article 784.
 This article should be interpreted rationally. It is not to
be so interpreted as to make it clash with the principle
expressed in Articles 1041-1057 of the NCC that the
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heir is free to accept or reject the testamentary
disposition.
 What this article prohibits is the delegation to a 3rd
person of the power to decide whether a disposition
should take effect or not.
Case for Arts. 783-787
Del Rosario v. Del Rosario
- Don Nicolas left a will awarding parts of his estate to his
nephews, Don Enrique and plaintiff, Don Ramon subject to
certain conditions. (See case page 322)
- He also left a part of his estate to his siblings, one of which
is Dona Luisa. And upon the latter’s death, her share shall
be divided between her two nephews after P1,000 has been
given to Dona Luisa’s male children.
- Doña Honorata, Don Nicolas’ wife, left her estate to his
husband. Upon the husband’s death, it shall be passed on to
her husband’s siblings. However, upon the death of her
sister-in-law, Dona Luisa, same provisions shall apply as
what is stated in her husband’s will.
- Plaintiff now institutes this present case against the
executor, who is one of his uncles, Don Clemente. He seeks
to be entitled to a certain part of the share of the estates left
to Dona Luisa during her life, and he asks that the executor
be directed to render accounts and to proceed to the
partition of the estate.
Whether or not he is entitled to any share of the estate left by
the spouses.
- Plaintiff is not entitled to any allowance under the will of Don
Nicolas because:
a. He is only allowed such amount if widow
remarries and he is still continuing studies,
which are not present in this case.
b. His interest in the share of Dona Luisa in Don
Nicolas’ will was given to him as an heir and not
as a legatee.
- He is not entitled to live in the widow’s house because such
was terminated upon the widow’s death.
- He is entitled to be paid the sum of P1500 given to Don
Enrique in addition to the P1500 pesos already received by
plaintiff under the 9th clause of Dona Honorata’s will
because:
a. The will specifically awarded the said amounts
to him as a legatee and the fact that they were
called natural sons of Don Clemente only serves
as a further description and needs no proof to be
given.
b. By virtue of the right of accretion, plaintiff is also
entitled to the other P1500 share of Don Enrique
since the latter died before Don Honorata.
- He is entitled to the share of the estate left by the will of
Dona Honorata to Dona Luisa during her life, after deducting
P1,000 because:
a. The share of plaintiff from Dona Luisa’s share is
given to him whether or not Dona Luisa dies
before or after Dona Honorata.
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b. His right in the share of Dona Luisa is expressly
left to him as a legacy.
- The reservation of property in a will to the name of specific
persons shall be considered as a legacy.
- Where the will authorizes the executor to pay the legacies,
expressly or by natural inference, action will lie by the
legatee against the executor to compel allowance and
payment hereof. If the executor is not authorized, action will
lie against the heirs. An heir on the other hand, can maintain
no such action against the executor.
ART. 788. If a testamentary disposition admits of
different interpretations, in case of doubt, that
interpretation by which the disposition is to
be operative shall be preferred.
 Articles 788-794 lays down the rules of construction
and interpretation.
 The underlying principle here is that testacy is preferred
to intestacy, because the former is the express will of
the decedent whereas the latter is only his implied will.
 In statutory construction, the canon is: “That the thing
may rather be effective than be without effect.”
 A similar principle in contractual interpretation is found
in Art1373, which provides that “if some stipulation of
any contract should admit of several meanings, it shall
be understood as bearing that import which is most
adequate to render it effectual.”
ART. 789. When there is an imperfect description,
or when no person or property exactly
answers the description, mistakes and
omissions must be corrected, of the error
appears from the context of the will or from
extrinsic evidence, excluding the oral
declarations of the testator as to his
intention; and when an uncertainty arises
upon the face of the will, as to the application
of any of its provisions, the testator’s
intention is to be ascertained from the words
of the will, taking into consideration the
circumstances under which it was made,
excluding such oral declarations.
 2 KINDS OF AMBIGUITY REFERRED TO –
1. LATENT – not obvious on the face of the will
• When there is an imperfect description or
when no person or property exactly answers
the description
a) Latent as to PERSON – “I institute to
¼ of my estate my first cousin Jose”
and the testator has more than one
first cousin named Jose.
b) Latent as to PROPERTY – “I devise
to my cousin Pacifico my fishpond in
SUCCESSION REVIEWER
Roxas City” and the testator has
more than one fishpond in Roxas
City.
2. PATENT – obvious on the face of the will
• When an uncertainty arises upon the face
of the will, as to the application of any of its
provisions
a) Patent as to PERSON – “I institute ¼
of my estate to some of my first
cousins.
b) Patent as to PROPERTY – “I
bequeath to my cousin Pacifico some
of my cars.”
• In both cases, the ambiguity is evident
from a reading of the testamentary
provisions themselves; the ambiguity is
patent [patere – to be exposed]
 HOW TO DEAL WITH AMBIGUITIES –
 The provisions of this article do not make a
distinction in the solution of the problem of
ambiguities – whether latent or patent.
• Hence, the distinction between the 2 kinds
of ambiguity is, in the light of the codal
provisions, an all but theoretical one.
 The ambiguity should, as far as possible, be
cleared up or resolved, in order to give effect to the
testamentary disposition.
• Based on principle that testacy is
preferred to intestacy.
 Ambiguity may be resolved using any evidence
admissible and relevant, excluding the oral
declarations of the testator as to his intention.
• Reason for the statutory exclusion is that
a dead man cannot refute a tale.
ART. 790. The words of a will are to be taken in
their ordinary and grammatical sense, unless
a clear intention to use them in another sense
can be gathered, and that other can be
ascertained.
Technical words in a will are to be taken
in their technical sense, unless the context
clearly indicates a contrary intention, or
unless it satisfactorily appears that he was
unacquainted with such technical sense.
 Similar rules are laid down in Rule 130 Sections 10 and
14 of the Rules of Court –
Sec10. Interpretation of a writing according
to its legal meaning – The language of a writing
is to be interpreted according to the legal
meaning it bears in the place of its execution,
unless the parties intended otherwise.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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Sec14. Peculiar signification of terms – The
terms of a writing are presumed to have been
used in their primary and general application,
but evidence is admissible to show that they
have a local, technical, or otherwise peculiar
signification, and were so used and understood
in the particular instance, in which case the
agreement must be construed accordingly.
 In contractual interpretation, a similar principle is
expressed in Article 1370 par1:
Art1370. If the terms of a contract are clear
and leave no doubt upon the intention of the
contracting parties, the literal meaning of its
stipulations shall control.
ART. 791. The words of a will are to receive an
interpretation which will give to every
expression some effect, rather than one
which will render any of the expressions
inoperative; and of two modes of interpreting
a will, that is to be preferred which will
prevent intestacy.
 A similar rule is found in Rule 130 Sec11 of the RoC –
Sec11. Instrument construed so as to give
effect to all provisions – In the construction of an
instrument where there are several provisions or
particulars, such a construction is, if possible, to
be adopted as will give effect to all.
 In contractual interpretation, Articles 1373 and 1374 lay
down similar principles –
Art1373. If some stipulation of any contract
should admit of several meanings, it shall be
understood as bearing that import which is most
adequate to render it effectual.
Art1374. The various stipulations of a
contract shall be interpreted together,
attributing to the doubtful one that sense which
may result from all of them taken jointly.
ART. 792. The invalidity of one of several
dispositions contained in a will does not
result in the invalidity of the other
dispositions, unless it is to be presumed that
the testator would not have made such other
dispositions if the first invalid disposition had
not been made.
 This article makes applicable to wills the
SEVERABILITY OR SEPARABILITY PRINCIPLE in
statutory construction frequently expressly provided in a
separability clause.
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 The source of this article is Art2085 of the German Civil
Code which provides that the invalidity of one of several
dispositions contained in a will results in the invalidity of
the other dispositions only if it is to be presumed that
the testator would not have made these if the invalid
disposition had not been made.
part or interest, unless the testator expressly declares
that he gives the thing in its entirety.
 GENERAL RULE – in a legacy or devise the testator
gives exactly the interest he has in the thing.
EXCEPTIONS – he can give a less interest [Art794] or a
greater interest [Art929] than he has.

ART. 793. Property acquired after the making of a
will shall only pass thereby, as if the testator
had possessed it at the time of making the
will, should it expressly appear by the will
that such was his intention.
 In the latter case, if the person owning the interest
to be acquired does not wish to part with it, the
solution in Art931 can be applied wherein the
legatee or devisee shall be entitled only to the
JUST VALUE OF THE INTEREST that should
have been acquired.

 This article creates problems which would not have

existed had it not been so nonchalantly incorporated in
the Code, an implant from the Code of Civil Procedure
and ultimately from American law.

 The problem springs from the fact that this article

makes the will speak as of the time it is made, rather
than at the time of the decedent’s death [which is more
logical because that is when the will takes effect
according to Article 777].

 Illustration – X executes a will in 1985 containing a

legacy: “I give to M all my shares in BPI.” The testator
dies in 1990, owning at the time of his death ten times
as many BPI shares as he did when he made the will.
• Under Article 793, the shares acquired
after the will was executed are NOT included in
the legacy.

 Article 793 therefore departs from the codal

philosophy of Articles 774 and 776 and constitutes
an EXCEPTION to the concept of succession as
linked to death and rendered legally effective by
death.

 Prof. Balane suggests the provisions be reworded as:

“Property acquired after the making of a will passes
thereby unless the contrary clearly appears from the
words or the context of the will.”
 In the meantime, it is suggested that a liberal
application of the article be allowed.
 Can the word “expressly” in this article be
interpreted to mean “clearly” even if it might be
stretching a point?

ART. 794. Every devise or legacy shall cover all

the interest which the testator could device or
bequeath in the property disposed of, unless
it clearly appears from the will that he
intended to convey a less interest.

 This article should be read together with Art929, which

provides that “if the testator, heir, or legatee owns only
a part of or an interest in the thing bequeathed, the
legacy or devise shall be understood limited to such

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SUCCESSION REVIEWER
RE-CAP OF THE RULES ON
INTERPRETATION
AND CONSTRUCTION OF WILLS
2. In case of doubt, testacy is preferred and
disposition should be interpreted in manner which
would make it operative.
3. Two kinds of Ambiguities
• Latent – imperfect description or
when no person or property exactly answers
to description.
• Patent – based on the face of the
will as to the application of any of its
provisions
4. In case of ambiguity, may resort to any evidence,
even extrinsic evidence, but may not resort to
oral declarations of the testator as to his
intention.
5. Words of a will shall be taken in their ordinary
and grammatical sense, unless:
• Another sense or meaning is clearly
intended to be used, and
• That other sense or meaning can be
ascertained
6. Technical words shall be taken in technical
sense, except:
• When context clearly indicates
otherwise
• Will was drawn solely by the testator
and he was not acquainted with the technical
meaning of such word.
7. Words are to receive interpretation which will give
it some effect.
8. Invalidity of one disposition in a will does not
mean the other dispositions are also invalid.
• But invalidity of one provision
affects the other if it is to be presumed that
the testator would not have made such other
disposition if the first invalid disposition had
not been made.
9. Property that is acquired by the testator after the
will was executed shall only be transmitted along
with those in the will, if the testator expressly
states in the will that such is his intention.
10. A devise of legacy shall transmit the whole extent
of the testator’s interest in the property disposed.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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1ST SEM 2006-2007
ART. 795. The validity of a will as to its form
depends upon the observance of the law in
force at the time it is made.
 ASPECTS OF VALIDITY OF WILLS
A. EXTRINSIC – refers to the requirement of form
/ formal validity
1. Governing law as to TIME
a. Filipinos – law in force when the will was
executed [Art795]
b. Foreigners – same rile. The assumption
here is that the will is being
probated in the Philippines.
2. Governing law as to PLACE
 Filipinos or Foreigners
a. Law of citizenship
b. Law of domicile
c. Law of residence
d. Law of place of execution, or
e. Philippine law
 Articles 815-817 - Rules of formal validity
a. Filipino Abroad - According to the
law in the country in which he may be
and may be probated in the Philippines
b. Alien abroad - Has effect in the
Philippines if made according to: Law
of place where he resides, Law of his
own country or Philippine law
c. Alien in the phils. - Valid in Phils.
as if executed according to Phil. laws,
if: Made according to law of country
which he is a citizen or subject, and
May be proved and allowed by law of
his own country.
B. INTRINSIC – refers to the substance of the
provisions / substantive validity
1. Governing law as to TIME
a. Filipinos – law at the time of death,
in connection with Art2263.
b. Foreigners – depends on their
personal law [Art16, par2 and
Art1039]
2. Governing law as to PLACE
a. Filipinos – Philippine law [Art16 par2
and Art1039]
b. Foreigners – their national law [Art16
par2 and Art1039]
 Art2263 provides that “Rights to the inheritance of a
person who died, with or without a will, before the
effectivity of this Code [August 30, 1950], shall be
governed by the Civil Code of 1889, by other previous
laws, and by the Rules of Court. The inheritance of
those who, with or without a will, die after the beginning
of the effectivity of this Code, shall be adjudicated and
distributed in accordance with this new body of laws
and by the Rules of Court; but the testamentary
provisions shall be carried out insofar as they may be
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permitted by this Code. Therefore, legitimes,
betterments, legacies and bequests shall be respected;
however, their amount shall be reduced if in no other
manner can every compulsory heir be given his full
share according to this Code.”
 Art16 par2 provides that “intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional rights
and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person
whose succession is under consideration, whatever
may be the nature of the property and regardless of the
country wherein said property may be found.”
 While Art1039 provides that “Capacity to Succeed is
governed by the law of the nation of the decedent.”
Cases for Arts. 788-795
Uriarte v. CFI
- Vicente Uriarte instituted a special proceeding for the
settlement of the estate of Don Juan Uriarte before the CFI
of Negros.
- Vicente Uriarte contends that he is an acknowledged son of
the deceased and that as the natural son, he should be
considered as the sole heir. (It appears that Vicente
instituted a case before the same court for his
acknowledgment as a natural son, however such case is yet
to attain finality.)
- Higinio Uriarte filed an opposition to the special proceeding
alleging that Don Juan Uriarte executed a Last Will and
Testament in Spain.
- In another occasion, Juan Zamacona commenced a special
proceeding for the probate of the last will of Don Juan before
the CFI of Manila.
- At the same time, Juan Zamacona also filed a Motion to
Dismiss on the special proceeding instituted by Vicente
alleging that by virtue of the will executed by Don Juan,
there is no legal basis to proceed in the intestate proceeding
and that Vicente has no legal standing to initiate said
proceeding.
- The CFI of Negros accordingly dismissed the case. To
protect his interest, Vicente Uriarte filed an Omnibus Motion
praying that he be allowed to Intervene before the CFI of
Manila or that the proceedings therein be dismissed.
Whether or not the testate proceeding filed by Juan Zamacona
should take precedence over the intestate proceeding
instituted by Vicente
- The SC held that in accordance with well settled
jurisprudence, testate proceedings for the settlement of the
estate of a deceased person shall take precedence over
intestate proceedings over the same.
- This doctrine is in accord with the principle that TESTACY is
preferred to INTESTACY.
- Thus, in if in the case of intestate proceedings pending
before a court, it is found that the decedent had left a last
will, proceedings for the probate of the latter should replace
the intestate proceedings even if at the stage an
administrator has already been appointed.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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Which of the two courts is the proper venue for the settlement
of estate of Don Juan
- The SC held that the proper venue should have been with
the CFI of Negros.
- The Courts of First Instance is granted the original and
exclusive jurisdiction over all matters of probate (this
includes testate and intestate proceedings)
- In this light, both the CFI of Manila and Negros have
jurisdiction over the subject matter. Thus, the question boils
down to where the proper venue lies.
- Venue in the settlement of an estate, if the decedent is an
inhabitant of foreign country, is in the CFI of any province on
which the decedent had an estate. This is true for both the
CFI of Manila and Negros.
- Although as declared above that an intestate intestate
proceeding should give way to testate proceedings, records
show that expediency would have been achieved if
Zamacona filed the petition in the Negros Court.
- The Negros court was already informed of the existence of a
will by Higinio and that in fact the latter was requested to
submit a copy of the said will.
- But since venue is a waiveable defect, Vicente is barred by
laches from raising the same as it was almost a year when
he raised the objection.
- Testacy is preferred to Intestacy.
- If in the case of intestate proceedings pending before a
court, it is found that the decedent had left a last will,
proceedings for the probate of the latter should replace the
intestate proceedings even if at the stage an administrator
has already been appointed.
- This is without prejudice that should the alleged will be
rejected or disapproved, the proceeding shall continue as an
intestacy.
Enriquez, et al. v. Abadia, et al.
- In 1923, Fr. Sancho Abadia of Talisay, Cebu executed a
document purporting to be his Last Will and Testament
covering his properties the estimated value of which was
P8000 when he died in 1943.
- Andres Enriquez, one of the legatees, filed a petition for its
probate in the CFI of Cebu, to the opposition of the late
priest’s cousins and nephews.
- One of the witnesses (the other two have died) related that
in his presence and of his co-witnesses, Fr. Abadia wrote
out in longhand in Spanish which the testator spoke and
understood; signed on the left hand margin each of the three
pages, numbered the same with Arabic numerals, and
signed the last page after declaring that it was his last will,
after which the three witnesses signed on the last page as
well.
- In 1923, long before the New Civil Code was in force,
holographic wills (as the one prepared by Fr. Abadia,
determined as such by the lower court) were invalid.
- The law at the time also required numbering correlatively
each page in letters and signing on the left hand margin by
the testator and by the three attesting witnesses on each of
the three pages, among others, which were not followed in
the present will.
- However, the lower court said that since the New Civil Code
was already in effect at the time of the hearing and the
making of the decision in 1952, a liberal view ought to be
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taken to carry out the intention of the testator which is the
controlling factor and which may override any defect in form.
Whether or not the provisions of the New Civil Code which
allowed holographic wills may be applied to validate Fr.
Abadia’s will.
- NO. No subsequent law with more liberal requirements or
which dispenses with such requirements as to execution
should be allowed to validate a defective will and thereby
divest the heirs of their vested rights in the estate by
intestate succession. The general rule is that the Legislature
cannot validate void wills.
- Art. 795 of the New Civil Code provides: “The validity of a
will as to its form depends upon the observance of the law in
force at the time it is made.”
- The above provision weight of authority to the effect that the
validity of a will is to be judged not by the law in force at the
time of the testator’s death or at the time the supposed will is
presented in court for probate or when the petition is
decided by the court but at the time the instrument was
executed.
- The wishes of the testator about the disposition of his estate
among his heirs and among the legatees is given solemn
expression at the time the will is executed, and in reality, the
legacy or bequest then becomes a completed act.
- The position that subsequent statutes should be applied to
validate wills defectively executed according to the law in
force at the time of execution is untenable.
- The reason for the above is that from the day of the death of
the testator, if he leaves a will, the title of the legatees and
devisees under it becomes a vested right, protected under
the due process clause of the constitution.
- Art. 795 of the New Civil Code provides: “The validity of a
will as to its form depends upon the observance of the law in
force at the time it is made.”
- The above provision weight of authority to the effect that the
validity of a will is to be judged not by the law in force at the
time of the testator’s death or at the time the supposed will is
presented in court for probate or when the petition is
decided by the court but at the time the instrument was
executed.
- No subsequent law with more liberal requirements or which
dispenses with such requirements as to execution should be
allowed to validate a defective will and thereby divest the
heirs of their vested rights in the estate by intestate
succession. The general rule is that the Legislature cannot
validate void wills.
In re Estate of Calderon
- This is an appeal made by the attorneys for Basilla Salteras,
Potenciana de la Cruz and Benigno Calderon, the latter as
the natural guardian of the minors Maria and Josefa
Calderon from an order which directed that the administrator
be authorized to make a conveyance of property, a house
and lot, situate in Binondo to Petronila Eugenio.
- The case questions on 1) How and what manner the
provisions made by the testator, the deceased Miguel Fable,
in clause 12 of his will should be complied with; and 2) Who
should receive pro rata the legacy specified in the said
clause.
- The said clause states that the property on Calle Analogue
will be left as legacy to his wife under the condition that with
its revenue she shall care for and educate and assist during
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her widowhood the children of their servants and the two
children of D. Lucas y Eugenio;
- In the same will, Miguel Fabie authorized her wife to provide
in her will that property be delivered to the persons who may
have assisted and cared for her during her widowhood until
her death and to sell the property so that the proceeds to be
divided if there be any foreseeable disagreements over the
property;
- The same will also provided that should the wife forget to
make a will, that it be complied with and fulfilled by his
brother Ramon Fable.
- The testator’s will, as recorded in the abovementioned is so
clear and definite that in order duly to comply therewith, it
needs but be determined who are the persons that must be
considered as the legatees on account of their having
served and cared for the testator’s widow until their death.
- From a due examination of the evidence presented at the
trial, those entitled are Encarnacion Gutierrez Calderon,
Filomena Calderon, Potenciana de la Cruz, Basilisa
Salteras, Candida Reyes, Benita Garcia, Maria and Josefa
Calderon and Petronilla Eugenio.
- The minor children were also of service to the widow, and
should equally receive a pro-rate share on the property’s
value. It was not only Petronila who had served the widow,
there were many others and she should not alone get the
property.
- Since some of them did so, as proven by the record, the law
must be fulfilled in accordance with the tenor of the last will
of the testator.
- It is the settled rule that the intention and wishes of the
testator, when clearly expressed in his will, constitute the
fixed law of interpretation.
Balanay v. Martinez
- Leodegaria Julian, in her will, partitioned her paraphernal as
well as all the conjugal properties as if they were all owned
by her, disposing of her husband's one-half share, and
providing that the properties should not be divided during
her husband's lifetime but should remain intact and that the
legitimes should be paid in cash to be satisfied out of the
fruits of the properties.
- Felix Balanay, Jr. filed a petition for the approval of his
mother's will which was opposed by the husband and some
of her children.
- During the pendency of the probate proceedings petitioner
submitted to the court a document showing his father's
conformity to the testamentary distribution, renouncing his
hereditary rights in favor of his children in deference to the
memory of his wife.
- The Court denied the opposition, set for hearing the probate
of the will and gave effect to the affidavit and conformity of
the surviving spouse.
- Meanwhile, a certain Atty. David Montaña, Sr. allegedly, in
behalf of the petitioner, moved to dismiss the probate
proceedings and requested authority to proceed by intestate
proceedings on the ground that the will was void (because
Leodegaria cannot validly dispose of her husband’s share) ,
which motion was granted by the probate court. The Court,
however, did not abrogate its prior orders to proceed with
the probate proceedings.
- Petitioner impugned the order of dismissal claiming that Atty.
Montaña had no authority to ask for the dismissal of the
petition for allowance of will and that the court erred in
declaring the will void before resolving the question of its
formal validity.
SUCCESSION REVIEWER
Whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.
- NO. In view of certain unusual provisions of the will, which
are of dubious legality, and because of the motion to
withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had
been established.
- The probate of a will might become an idle ceremony if on
its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should
meet the issue
Whether the court erred in converting the testate proceeding
into an intestate proceeding notwithstanding the fact that in its
order of June '8, 1973 it gave effect to the surviving husband's
conformity to the will and to his renunciation of his hereditary
rights which presumably included his one-half share of the
conjugal estate.
- YES. The rule is that "the invalidity of one of several
dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to he
presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been
made" (Art. 792, Civil Code).
- "Where some of the provisions of a will are valid and others
invalid, the valid parts will be upheld if they can be
separated from the invalid without defeating the intention of
the testator or interfering with the general testamentary
scheme, or doing injustice to the beneficiaries"
- Void provisions in the will:
1. The statement of the testatrix that she owned the
"southern half" of the conjugal lands is contrary to law
because, although she was a co-owner thereof, her
share was inchoate and pro indiviso
2. that the properties of the testatrix should not be
divided among her heirs during her husband's lifetime
but should be kept intact and that the legitimes
should be paid in cash is contrary to article '080 of
the Civil Code
Whether an heir may validly renounce his share
- YES. Felix Balanay, Sr. could validly renounce his hereditary
rights and his one-half share of the conjugal partnership
(Arts. '79['] and '04', Civil Code) but insofar as said
renunciation partakes of a donation of his hereditary rights
and his one-half share in the conjugal estate (Art. '050['] Civil
Code), it should be subject to the limitations prescribed in
articles 750 and 752 of the Civil Code. A portion of the
estate should be adjudicated to the widower for his support
and maintenance. Or at least his legitime should be
respected.
- Generally, the probate of a will is mandatory and it is the
duty of the court to pass first upon its formal validity except
in extreme cases where the will is on its face intrinsically
void.
- A will is not rendered null and void by reason of the
existence of some illegal or void provisions since the
invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions
unless it is to be presumed that the testator would not have
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made such other dispositions if the first invalid disposition
had not been made;
- Where some provisions are valid and others invalid, the
valid provisions shall be upheld if they can be separated
from the invalid provisions without defeating the intention of
the testator or interfering with the general testamentary
scheme or doing injustice to the beneficiaries.
- The very existence of a purported testament is in itself prima
facie proof that the supposed testator has willed that his
estate should be distributed in the manner therein provided,
and it is incumbent upon the state that, if legally tenable,
such desire be given effect independent of the attitude of the
parties affected thereby
- Testacy is favored. Doubts are resolved in favor of testacy
especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate.
Bellis v. Bellis
- Amos Bellis was a citizen of the State of Texas and of the
United States.
- By his first wife, he had 5 legitimate children; by his second
wife, he had 3 legitimate children; and he had 3 illegitimate
children.
- Amos executed a will in the Philippines, in which he
specified how his estate will be divided and distributed.
- Subsequently, Amos died, a resident of Texas.
- His will was admitted to probate in the CFI of Manila.
- The People’s Bank, as executor of will, paid all the bequests
included in Amos’ will.
- Before closing its administration, the executor submitted its
final report and project of partition.
- However, 2 of Amos’ illegitimate children filed their
oppositions to the project of partition on the ground that they
were deprived of their legitimes as illegitimate children and
therefore compulsory heirs of the deceased.
- The CFI issued an order overruling the oppositions and
approving the executor’s final account, report and project
partition. The lower court, relying upon Art. 16 of the NCC,
applied the national law of Amos, which is the Texas law,
which did not provide for legitimes.
- The illegitimate children thus filed an Appeal.
Whether this case falls under Art. 17 of the NCC.
- NO.
- Appellants argue that their case falls under the
circumstances mentioned in the 3rd paragraph of Art. 17 in
relation to Art. 16 of the NCC. It argues that Art. 17 prevails
as the exception to Art. 16.
- The SC rule that appellants argument is incorrect.
- It ruled that the change in the NCC shows that whatever
public policy and good customs may be involved in our
system of legitimes, Congress has not intended to extend
the same to the succession of foreign nationals. Congress
has specifically chose to leave the amount of successional
rights to the decedent’s national law.
Whether Philippine law should govern to Amos’ Philippine
estate.
- NO. Appellants argued that Amos executed 2 wills – one to
govern his Texas estate and the other his Philippine estate –
arguing that he intended Philippine law to govern his
Philippine estate.
- The SC held that that a provision in a foreigner’s will to the
effect that his properties shall be distributed in accordance
SUCCESSION REVIEWER
with Philippine law and not with his national law, is illegal
and void, for his national law cannot be ignored in regard to
those matters that Art. 16 of the NCC states said national
law should govern.
Which law must apply – Texas law or Philippine law?
- Texas law applies.
- The petitioners admit that Amos was a citizen of State of
Texas and that under the laws of Texas, there are no forced
heirs of legitimes.
- Accordingly, since the intrinsic validity of the provision of the
will and the amount of successional rights are to be
determined under Texas law, the Philippine law on legitimes
cannot be applied to the testacy of Amos.
- Art. 16: Real property as well as personal property is subject
ot the law of the country where it is situated. However,
intestate and testamentary succession, both with respect to
the order of succession and to the amount of successional
rights and to the intrinsic validity of testamentary provisions,
shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein
said property may be found.
- Art. 1039: Capacity to succeed is governed by the law of the
nation of the decedent.
- Art. 17: Prohibitive laws concerning persons, their acts or
property, and those which have for their object public order,
public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign
country.
- The decedent’s national law governs the (1) order of
succession, (2) the amount of successional rights, (3) the
intrinsic validity of the provision of the will and (4) the
capacity to succeed.
- Testamentary provision that successional right to decedent’s
estate would be governed by law other than his national law
if void, being contrary to article 16 of the NCC.
Subsection 2 – Testamentary Capacity
And Intent
ART. 796. All persons who are not expressly
prohibited by law may make a will.
ART. 797. Persons of either sex under eighteen
years of age cannot make a will.
ART. 798. In order to make a will it is essential
that the testator be of sound mind at the time
of its execution.
ART. 799. To be of sound mind, 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
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Ryan Quan 
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nature of the estate to be disposed of, the
proper objects of his bounty, and the
character of the testamentary act.
ART. 800. The law presumes that every person is
of sound mind, in the absence of proof to the
contrary.
The burden of proof that the testator was
not of sound mind at the time of making his
dispositions is on the person who opposes
the probate of the will; but if the testator, one
month, or less, before making his will was
publicly known to be insane, the person who
maintains the validity of the will must prove
that the testator made it during a lucid
interval.
ART. 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of
capacity.
 Articles 796-801 lay down the rules on testamentary
capacity.
 Testamentary Capacity – testamenti factio;
testamentifacción active, the legal capacity to make
a will.
 Who has testamentary capacity? All NATURAL
persons, unless disqualified by law. Juridical
persons are NOT granted testamentary capacity.
 DISQUALIFIED PERSONS
1. THOSE UNDER 18 [ART797]
• Under EO292, the Administrative Code of
1987, which took effect on November 24,
1989, years are now reckoned according to
the Gregorian Calendar.
• Sec31 provides for the legal periods
a) Year – 12 calendar months
b) Month – 30 days, unless specific
calendar month is referred to, in
which case it shall be computed
according to the number of days the
specific calendar month contains
c) Day – 24 hours
d) Night – Sunset to sunrise
2. THOSE OF UNSOUND MIND [ART798]
• Unsoundness of Mind [Insanity]
 Absence of the qualities of soundness of
mind
 Defined by the Code only by indirection
because only soundness of mind is
defined under Art799.
 SOUNDNESS OF MIND [SANITY]
 NEGATIVELY
1. Not necessary that testator be in full
possession of reasoning faculties
20
SUCCESSION REVIEWER
2. Not necessary that testator’s mind be wholly
unbroken, unimpaired, unshattered by
disease, injury or other cause.
 POSITIVELY – Ability to know 3 things
1. Nature of estate to be disposed of
• Testator should have a fairly accurate
knowledge of what he owns.
• The more one owns, the less accurate his
knowledge of his estate expected to be.
2. Proper objects of one’s bounty; &
• Testator should know, under ordinary
circumstances, his relatives in the most
proximate degrees, his knowledge
expectedly decreasing as the degrees
become more remote.
3. Character of testamentary act.
• It is not required that the testator know the
legal nature of a will with the erudition of a
civilest.
• All that he need know is that the
document he is executing is one that
disposes of his property upon death.
 Legal Importance and Implication of Mental Capacity
 Law is interested in the legal consequences of the
testator’s mental capacity or incapacity, not in the
medical aspects of mental disease.
 The testator could be mentally aberrant medically
but testamentarily capable, or vice versa, mentally
competent medically but testamentarily
incompetent.
 TEST – as long as the testator, at the time he
made the will, was capable of perceiving the three
things [nature of estate, objects of bounty, and
character of testamentary act], he has
testamentary capacity, whatever else he may be
medically.
 PRESUMPTION / GENERAL RULE – rebuttable
Presumption of Sanity under Art800.
 TWO EXCEPTIONS – when there is a rebuttable
presumption of Insanity –
1. When testator, one month or less before the
execution of the will, was publicly known to be
insane
2. When the testator executed the will after being
placed under guardianship or ordered
committed, in either case, for insanity under
Rules 93 and 101 of the RoC, and before said
order has been lifted.
 The time for determining mental capacity
 time of execution of the will and no other temporal
criterion is to be applied
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ART. 802. A married woman may make a will
without the consent of her husband, and
without the authority of the court.
 Sexist provision, contains an erroneous and unintended
suggestion that a married man does not have the same
privilege.
 Suggested rewording –
 “A married person may make a will without his or
her spouse’s consent.”
ART. 803. A married woman may dispose by will
of all her separate property as well as her
share of the conjugal partnership or absolute
community property.
 Sexist provision, contains an erroneous and unintended
suggestion that a married man does not have the same
privilege.
 Article 97 of the Family Code supersedes this in part
 Art97. Either spouse may dispose by will of his or
her interest in the community property.
Cases for Arts. 796-803
Bagtas v. Paguio
- This is an appeal from an order of the CFI admitting to
probate a document which was offered as the last will and
testament of Pioquinto Paguio.
- The testator died a year and 5 months following the date of
the execution of the will.
- For some 14 or 15 years prior to his death, the testator
suffered from paralysis of the left side of his body.
- A few years prior to his death, his hearing became impaired
and he lost the power of speech.
- Owing to the paralysis of certain muscles, his head fell to
one side and saliva ran from his mouth. However, he
retained the use of his right hand, and was able to write
fairly well. Through the medium of signs he was able to
indicate his wishes to his wife and to other members of his
family.
- At the time of the execution of the will, there were four
testamentary witnesses.
- It appears that the testator made notes disposition he
desires to make his property, from which his attorney
prepared a formal will which was then read to the testator,
who assented to it section by section. After which the whole
will is read in a loud voice and is then signed by the testator
and four witnesses in the presence of each other.
Whether the will was executed according to the formalities and
requirements of the law.
- YES. The SC held that the requirements of the Code of Civil
Procedure were fully complied with.
Whether the testator was in full enjoyment and use of his
mental faculties to execute a valid will.
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SUCCESSION REVIEWER
- YES. The is no sufficient evidence to overthrow the legal
presumption of a sound mind and disposing memory.
- Witnesses testified that, at the time of the execution of the
will, the testator was in his right mind and that although
serious ill, he indicated by the movements of his head what
his wishes were.
- The evidence shows that the writing and the execution of the
will occupied a period of several hours and that the testator
was taking an active part in all the proceedings.
- The SC held that that the testimony of the two physicians do
not in any way strengthens the argument that the testator
was mentally incapacitated. The SC said that their testimony
only confirms the fact that the testator had been afflicted with
paralysis but neither of them attempted to state what the
mental condition of the testator was at the time he executed
the will in question.
- The SC held that it cannot conclude from this that he was
wanting of the necessary mental capacity to dispose of his
property by will.
- The SC affirmed the order probating the will.
- In our jurisdiction, the presumption of law is in favor of the
mental capacity of the testator and the burden is upon the
contestants of the will to prove the lack of testamentary
capacity.
- When a testator has never been adjudged insane by a court
of competent jurisdiction, there is a presumption of mental
soundness which must be overcome by competent proof.
- To constitute a sound mind and disposing memory, it is not
necessary that the mind shall be wholly unbroken,
unimpaired, and unshattered by disease or otherwise, or
that the testator be in full possession of all his reasoning
faculties.
- Perfect soundness of mind is not essential to testamentary
capacity.
- Failure of memory is not sufficient unless it be total or
extends to his immediate family or property.
- The question is that, were his mind and memory sufficiently
sound to enable him to know and understand the business
in which he was engaged at the time when he executed his
will.
Yap Tua v. Yap Ca Kuan & Yap Ca Llu
- Yap Tua, through a representative, filed a petition for the
probate of the will of Tomasa Elizaga Yap Caong, the
deceased.
- The will dated 11 August 1909 was signed by Tomasa and 4
other witnesses.
- After due hearing, the judge ordered that Tomasa’s will be
allowed and admitted to probate.
- Later, Yap Ca Kuan and Yap Ca Llu (the minors) appeared
and were interested in the matters of the will. A guardian ad
litem (Gabriel) was then appointed.
- Gabriel then filed a petition alleging that the will admitted to
probate was null because:
1. It was not executed in accordance with the law
(specifically with the signing of the witnesses)
2. Tomasa was not mentally capacitated to execute the
will due to her sickness
3. Tomasa’s signature was obtained through fraud and
illegal influence
4. Tomasa had earlier executed another will dated 06
August 1909 with all the formalities required by law
- A rehearing was then ordered by the judge.
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WON the will dated 11 August 1909 executed by Tomasa was
valid.
- YES.
1. A plan of the room where the will was signed was
presented. It was shown that from the bed where
Tomasa was lying, it was possible for her to see the
table on which the witnesses signed the will.
2. As regard the issue of the soundness of Tomasa’s
mind when she executed the will, SC held that in
view of the conflicting testimonies and the findings of
the lower court, it upheld the conclusion of the lower
court that Tomasa had clear knowledge and knew
what she was doing at the time she signed the will.
3. Although it was contended that the signature of
Tomasa in the latter will varied from the one found in
the earlier will, SC held that if Tomasa signed any
portion of her name to the will, with the intention to
sign the same, that will amount to a signature. The
lower court found that no undue influence was
exercised over Tomasa when she executed the will.
The findings of the lower court, which had the
opportunity to see, hear and note the witnessed
during examination is accorded great weight. SC
upheld the lower court’s findings.
4. On the issue of the execution of an earlier will, the
SC held that the execution of a former will is no proof
that she did not execute a later one. She had the
perfect right to alter, modify, or revoke any and all of
her former wills and to make a new one.
- While it is an absolute rule that one who makes a will must
sign the same in the presence of the witnesses and the
witnesses must sign in the presence of each other and of the
testator, yet the actual seeing of the signatures made ins not
necessary.
- It is sufficient if the signatures are made where it is possible
for the necessary parties, if they desire to see, may see the
signatures placed upon the will.
- A signature containing only the first name is nevertheless a
signature and is sufficient to satisfy the requirements of the
law.
- If the writing of a mark simply upon a will is sufficient
indication of the intention of the person to make and execute
a will, then certainly the writing of a portion or all of the name
should be accepted as a clear indication of an intention to
execute the will.
Samson v. Tan
- The Testator was suffering from diabetes and had been in a
comatose condition for several days prior to his death. He
died at about 8:00pm and the will is alleged to have been
executed in the noon of the same day.
- Oppositor in this case alleges that at the time of the
execution of the will, testator is not of sound and disposing
mind.
Whether or not testator is of unsound mind
- SC held that he was not. Although the attending physician
testified that he was in a state of coma, he also stated that
coma has varying degrees of coma ad in its lighter forms the
patient may be aroused and have lucid intervals.
- The petitioner presented 5 witnesses who all testified that he
was conscious and could her and understand what was said
to him and was able to indicate his desires. He could speak
distinctly or move his head to answer questions. This was
given greater weight by the court as against the two
SUCCESSION REVIEWER
witnesses presented by oppositor, one of which was the
oppositor’s mother who was not considered as a
disinterested witness.
- Mere professional speculation cannot prevail over the
positive statements of 5 apparently credible witnesses
whose testimony does not seen unreasonable.
Torres v. Lopez
- The controversy on this case is centered on the allowance
or the disallowance of the will of Tomas Rodriguez.
- Vicente Lopez acted as the administrator of the properties of
the decedent. A year before Tomas’s death, the latter was
also subjected to a guardianship proceeding, where the
court found the decedent incapacitated to take care of
himself and his property. For this reason, Vicente was
named also as the guardian of the deceased.
- By virtue of the court’s finding, the decedent was committed
in the Philippine General Hospital where he eventually died.
- Tomas expressed his desire to make a will during one of the
visits of Santiago Lopez and accordingly, they
commissioned Atty. Mina to ascertain the wishes of the
decedent.
- The same will prepared by the attorney was the same
document signed by the testator and the other witnesses at
the General Hospital on January 3, 1924.
- After the decedent died, some of the relatives of Tomas, the
Margarita Lopez faction, wanted the will invalidated on the
ground that the testator was of unsound mind, and that the
latter was induced due to fraud on the execution of the will.
- During the trial, the Luz Lopez faction presented doctors
whose medical findings reveal that the testator was of sound
mind though weak on memory during the execution of the
will. The doctors on the Margarita faction however have the
opposite conclusion, that in fact the decedent is suffering
from senile debility or of mental impairment.
Whether or not the will of Tomas Rodriguez should be allowed
- YES. The SC held that the will should be allowed.
- The allegation of fraud was not proved by the evidence.
- As to the soundness of the mind of Tomas, the Court first
declared that what is necessary is that the decedent must
have a disposing mind. This means that the circumstances
of advanced age, health or weak memory alone are not
conclusive of the capacity of a person to make a will.
- Furthermore, the fact that a person is adjudged by a court to
be incapacitated in a guardianship proceeding is not
conclusive. Our laws do not have any statute providing for
the conclusiveness of the judgments of a court on incapacity
of a person. A person placed under guardianship is
presumed to be incapable but this presumption is refutable
by contrary evidence.
- In this case, since there were conflicting testimonies of well-
regarded physicians the court decided to base the capacity
of Tomas Rodriguez to make a will on the nature of the will
itself.
- As the will was simple and can be easily understood.
- Also, the fact that the testator was able to confer with Atty.
Mina and disclose to him his interests, that he generally
remembered close relatives and that he was still able to sign
the document properly shows that the deceased had
testamentary capacity.
- Testamentary capacity is the capacity to comprehend the
nature of the transaction in which the testator is engaged at
the time, to recollect the property to be disposed of and the
persons who would naturally have claims upon the testator,
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and to comprehend the manner in which the instrument will
distribute his property.
Sancho v. Abella
- Matea Abella, sometime prior to her death, asked her niece
to accompany her to a reputable physician for consultation.
- During her visit, Matea stayed in one of the convents in San
Fernando La Union.
- Said physician, Dr. Antonio Querol, diagnosed her to be
suffering from dyspepsia and cancer of the stomach.
- As such, Matea, immediately asked her attorney to come to
the convent so that she may make her will. The will was
accordingly drafted and signed by the testator in the
presence of the witnesses.
- Months after, Matea died.
- The opponent claims that Matea did not have capacity to
make the will at the time she executed the same as Mate
was deaf, has defective eyesight and is suffering from
severe impairment of memory.
Whether or not Matea had testamentary capacity
- The Sc held in the affirmative.
- The mental capacity of the testator was established by the
fact that she was able to leave home and travel to LA Union
to consult with the doctor, that she was able to give her
medical history to her physician, that she in fact called an
attorney to make her will, and that in fact she brought with
her the deeds to her properties.
- All these show that Matea was intelligent enough to make
the dispositions.
- The allegation that Mateo was induced by the fact that she
donated one her properties to the bishop of said diocese
was not sufficiently proven by the evidence.
- Neither senile debility, nor blindness, nor poor memory, is by
itself sufficient to incapacitate a person for making his will.
Gonzales v. Caruncong
- On November 27, 1948, Manuela Ibarra Vda. de Gonzales
(testatrix) died leaving five children namely Alejandro
Gonzales, Jr., Manuel Gonzales, Leopoldo Gonzales,
Manolito Gonzales de Carungcong, and Juan Gonzales. Her
estate is estimated at P150,000.
- Thereafter, one of the children of the testatrix, Manuel
Gonzales filed in CFI Rizal for the probate of an alleged will
by the testatrix executed on November 16, 1942, devising to
Manuel Gonzales the greater portion of the estate w/o
impairing the legitimes of the other children.
- On the other hand, Manolita de Carungcong filed in the
same court a petition for the probate of another alleged will
executed by the testatrix on May 5, 1945 devising to him the
greater portion of the estate.
- Alejandro Gonzales, Jr, one of the siblings then sought the
disallowance of the wills presented by his two other siblings,
assuming that even if they are valid, such were already
revoked by the testatrix in an instrument executed by her on
November 18, 1948 with the result that the testatrix’s estate
should be distributed as if she died intestate.
- Thereafter, the CFI of Rizal upheld the probate of the will
presented by Manolita Carungcong. And said that the will
Manuel Gonzales presented for probate was revoked
already by the one Manolita presented and that the
instrument presented by Alejandro was executed without the
knowledge and testamentary capacity of the testatrix.
- Hence this appeal.
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SUCCESSION REVIEWER
WON, the will presented by Manolita Carungcong was valid
despite the fact that it allegedly has no attestation clause
- The will is valid.
- The appellants contest that the will is not valid because it
does not contain any attestation clause; that the concluding
paragraph to be the attestation clause, it is not valid
because it is the act of the testatrix and not of the witnesses,
and because it does not state the number of sheets or pages
of the will.
- However, in a precedent case, the high court had already
sustained an attestation clause made by the testator and
forming part of the body of the will.
- In that case, it was said that, “The only apparent anomaly we
find is that it appears to be an attestation made by the
testator himself more than by the instrumental witnesses.
This apparent anomaly however is not in our opinion serious
nor substantial as to affect the validity of the will, appearing
that right under the signature of the testator, there appear
the signatures of the three instrumental witnesses.”
- And such is a sufficient compliance with requirements set
out by the law. It is significant that the law does not require
the attestation to be contained in a single clause. That
unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not
assailed.
- Now, with respect to the instrument presented by Alejandro
Gonzales, it can be shown that the instrument was prepared
when the testatrix lacked the testamentary capacity as this
was proved by the attending physician. When the alleged
instrument was prepared, the testatrix was already suffering
and was in a comatose and unconscious state and could not
talk or understand.
- An attestation clause made by the testator and signed by the
witnesses substantially complies with law.
- Statement of sheets of pages in body of will held sufficient
when considered in connection with attestation clause.
Hernaez v. Hernaez
Subsection 3 – Forms of Wills
ART. 804. Every will must be in writing and
executed in a language or dialect known to
the testator.
 Art804 lays down Common Requirements that apply
both to ATTESTED and HOLOGRAPHIC wills.
 Art805-808 lays down special requirements for attested
wills. Articles 810-814 lays down special requirements
for holographic wills.
 TWO COMMON REQUIREMENTS
1. IN WRITING
• Oral wills [the testamentum nuncupativum
of the Institutes] are not recognized in the
Civil Code.
• However, oral wills are allowed under the
Code of Muslim Personal Laws or PD1083 in
relation to Art102(2).
2. IN A LANGUAGE OR DIALECT KNOWN TO
THE TESTATOR
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• The provisions of Article 804 are
MANDATORY and failure to comply with the
two requirements nullifies the will.
• Neither the will nor the attestation clause
need state compliance with Art804. This can
be proved by Extrinsic Evidence.
• Presumption of Compliance – it may
sometimes be presumed that the testator
knew the language in which the will was
written.
a) Will must be in a language or dialect
generally spoken in the place of
execution, and
b) The testator must be a native or
resident of said locality.
CASES
Suroza v. Honrado
- This is a complaint against Judge Honrado for admitting to
probate a will which, on its face is void.
- Mauro Suroza, a corporal in the US army married Marcelina
Salvador. They reared a boy named Agapito Suroza, who
considered them as his parents. Mauro died and Marcelina
got pension from the Federal gov’t.
- Agapito married Nenita and had a child named Lilia.
Agapito became a soldier. When he was disabled Nenita
became his guardian.
- Agapito allegedly had a girlfriend, Arsenia dela Cruz who
also tried to become his guardian but was denied by the
court. A child, Marilyn Sy was thereafter entrusted to
Arsenia by the Spouses Sy. Arsenia delivered the child to
Marcelina Salvador, who brought up the child as a supposed
daughter of Agapito and her granddaughter, but was never
legally adopted by Agapito.
- When Marcelina died, her laundrywoman, Marina Peje, filed
a petition for probate of Marcelina’s will, which was written in
English and thumb marked by Marcelina, naming Marina as
the executrix and Marilyn as the sole heir.
- The case was assigned to Honrado who appointed Marina
as the administrator and allowed her to withdraw sums of
money from Marcelina’s saving’s account. Upon motion of
Marina, an order was issued to eject the occupants of
Marcelina’s house. This order alerted Nenita to the
existence of the testamentary proceeding for the settlement
of Marcelina’s estate.
- Nenita opposed the proceedings but to no avail.
Whether disciplinary action should be taken against Honrado
- Yes. The testatrix was illiterate. In the opening paragraph
of the will, it was stated that English was a language
understood and know to the testatrix. But in its concluding
paragraph, it was stated that the will was read to the testatrix
and translated into Filipino. That could only mean that the
will was written in a language not known to the illiterate and,
therefore, void because of the mandatory provision of art.
804 of the CC that every will must be executed in a
language known to the testator.
- Had Honrado been careful and observant, he could have
noted not only the anomaly as to the language of the will but
also that there was something wrong in instituting the
supposed granddaughter as sole heiress and giving nothing
at all to her supposed father who was still alive.
- He should also have noted that the notary was not
presented as witness.
SUCCESSION REVIEWER
- A will written in a language that is not known to the testator
is void.
Abangan v. Abangan
- The CFI admitted to probate Ana Abangan’s will.
- The said document, duly probated as Ana Abangan’s will,
consists of two sheets, the first of which contains all the
disposition of the testatrix, duly signed at the bottom of
Martin Montalban (in the name and under the direction of the
testatrix) and by 3 witnesses.
- The second sheet contains only the attestation clause duly
signed at the bottom by the three instrumental witnesses.
- Neither of these sheets is signed on the left margin by the
testatrix and the three witnesses, nor numbered by letters.
Whether the absence of the signature on the left margin of will
invalidate Abangan’s will.
- NO. The SC held that in a will consisting of two sheets, the
first of which contains all the testamentary dispositions and
is signed at the bottom by the testator and 3 witnesses and
the second contains only the attestation clause and is
signed also at the bottom by the 3 witnesses, it is not
necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.
Whether the failure to number by the letters will invalidate the
will of Abangan.
- NO. In requiring that each and every page of a will must be
numbered correlatively in letters placed on the upper part of
the sheet, the object of the law is to know whether any sheet
of the will has been removed.
- But, when all the dispositive parts of a will are written on one
sheet only, the object of the statute disappears because the
removal of this single sheet, although unnumbered, cannot
be hidden.
Whether the will was written in the dialect that the testatrix
knew.
- YES. The circumstances appearing in the will itself that the
same was executed in Cebu and in the dialect of this locality
where the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to presume that she
knew this dialect in which the will was written.
- The testator’s signature is not necessary in the attestation
clause because this, as its name implies, appertains only to
the witnesses and not to the testator.
- In requiring the signature on the margin, the statute took into
consideration the case of a will written on several sheets
and must have referred to the sheets which the testator and
the witnesses do not have to sign at the bottom.
Mendoza v Pilapil
ART. 805. Every will, other than a holographic
will, must be subscribed at the end thereof by
the testator himself or by the testator’s name
written by some other person in his presence,
and by his express direction, and attested
and subscribed by three or more credible
witnesses in the presence of the testator and
of one another.
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The testator or the person requested by
him to write his name and the instrumental
witnesses of the will, shall also sign, as
aforesaid, each and every page thereof,
except the last, on the left margin, and all the
pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation clause shall state the
number of pages used upon which the will is
written, and the fact that the testator signed
the will an every page thereof, or caused
some other person to write his name, under
his express direction, in the presence of the
instrumental witnesses, and that the latter
witnessed and signed the will and all the
pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language
not known to the witnesses, it shall be
interpreted to them.
ART. 806. Every will must be acknowledged
before a notary public by the testator and the
witnesses. The notary public shall not be
required to retain a copy of the will, or file
another with the Office of the Clerk of Court.
 SPECIAL REQUIREMENTS FOR ATTESTED /
ORDINARY / NOTARIAL WILLS -
1. Subscribed by the testator or his agent in
his presence and by his express direction at
the end thereof, in the presence of the
witnesses
• Subscribed by the testator – To subscribe
denotes writing, more precisely to write
under. To Sign means to place a
distinguishing mark.
• Thus signing has a broader meaning than
subscribing. Not every signature is a
subscription and not every distinguishing
mark is a writing.
• THUMBMARK AS SIGNATURE
a) Is the placing of the testator’s
thumbprint a signature within the
contemplation of the article? YES, on the
authority of Payad v. Tolentino and
Matias v. Salud, the testator’s thumbprint
is always a valid and sufficient signature
for the purpose of complying with the
requirement of Art805.
b) There is no basis for limiting the
validity of thumbprints only to cases of
illness or infirmity.
• A CROSS AS SIGNATURE – a sign of the
cross placed by the testator does not comply
with the statutory requirement of signature,
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SUCCESSION REVIEWER
UNLESS it is the testator’s usual manner of
signature or one of his usual styles of signing.
• SIGNING BY AN AGENT OF THE
TESTATOR –
 Two Requisites
i. Must sign in the testator’s
presence, and
ii. By the testator’s express direction
 What the agent must write – need not be
alleged in the will itself that agent wrote
the testator’s name under the latter’s
express direction
 The essential thing, for validity, is that the
agent write the testator’s name, nothing
more. It would be a good thing, but not
required, for the agent to indicate the fact
of agency or authority.
• May the agent be one of the attesting
witnesses?
a) If there are more than 3 witnesses –
YES
b) If there are only 3 witnesses –
Uncertain.
• SIGNING AT THE END
 If the will contains only dispositive
provisions, there will be no ambiguity as
to where the end of the will is. If however
the will contains non-dispositive
paragraphs after the testamentary
dispositions, one can refer to two kinds of
end –
1. Physical End – where the writing
stops
2. Logical End – where the last
testamentary disposition ends
 Signing at either the physical end or
logical end is equally permissible. The
non-dispositive portions are not essential
parts of the will.
 Signing before the end invalidates not
only the dispositions that come after, but
the entire will, because then one of the
statutory requirements would not have
been complied with.
• SIGNING IN THE PRESENCE OF
WITNESSES
 Actual seeing is not required, but the
ability to see each other [the testator and
the witnesses] by merely casting their
eyes in the proper direction.
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2. Attested and subscribed by at least three
credible witnesses in the presence of the
testator and of one another.
• Two distinct things are required of the
witnesses here –
a) Attesting – which is the act of
witnessing
b) Subscribing – which is the act of
signing their names in the proper
places of the will
• Both must be done.
• May the witness, like the testator, affix his
thumbmark in lieu of writing his name? Art820
requires a witness to be able to read and
write, but this does not answer the query
definitively. The point is debatable.
• Signing in the presence of the testator and
of one another - Actual seeing is not required,
but the ability to see each other [the testator
and the witnesses] by merely casting their
eyes in the proper direction.
3. Testator, or his agent, must sign every
page, except the last, on the left margin in the
presence of the witnesses
• The last page need not be signed by the
testator on the margin because, being the
page where the end of the will is, it already
contains the testator’s signature.
• There is a Mandatory and a Directory part
to this requirement –
a) MANDATORY – the signing on every
page in the witnesses’ presence
b) DIRECTORY – place of the signing,
the left margin, the signature can be
affixed anywhere on the page.
• Signing in the presence - Actual seeing is
not required, but the ability to see each other
[the testator and the witnesses] by merely
casting their eyes in the proper direction
4. The witnesses must sign every page,
except the last, on the left margin in the
presence of the testator and of one another.
• Order of Signing – immaterial, provided
everything is done in a single transaction.
However, if the affixation of the signatures is
done in several transactions, then it is
required for validity that the TESTATOR affix
his signature ahead of the witnesses.
5. All pages numbered correlatively in letters
on the upper part of each page.
• Mandatory and Directory part
a) MANDATORY – pagination by means
of a conventional system. The
purpose is to prevent insertion or
removal of pages
b) DIRECTORY – pagination in letters
on the upper part of each page.
•
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SUCCESSION REVIEWER
6. Attestation clause, stating:
a) Number of pages of the will
b) Fact that the testator or his agent
under his express direction signed the
will and every page thereof, in the
presence of the witnesses
c) The fact that the witnesses
witnessed and signed the will and every
page thereof in the presence of the
testator and of one another.
• The attestation clause is the affair of
witnesses therefore, it need not be signed by
the testator.
• The signatures of the witnesses must be
at the BOTTOM of the attestation clause.
• If the entire document consists only of 2
sheets, the first containing the will and the
second the attestation clause, there need not
be any marginal signatures at all [Abangan v.
Abangan]
• The fact that the attestation clause was
written on a separate page has been held to
be a matter of minor importance and
apparently will not affect the validity of the
will.
7. Acknowledgement before a notary public.
• Code does not require that the signing of
the testator, witnesses and notary should be
accomplished in one single act.
• All that is required in this article is that the
testator and witnesses should avow to the
notary the authenticity of their signatures and
the voluntariness of their actions in executing
the testamentary disposition. [Javellana v.
Ledesma]
a) Ratio – Certification
acknowledgement need not be signed by
notary in the presence of testator and
witnesses.
b) Art806 does not require that testator
and witnesses must acknowledge on the
same day that it was executed.
c) Logical Inference – neither does the
article require that testator and witnesses
must acknowledge in one another’s
presence. If acknowledgement is done
by testator and witness separately, all of
them must retain their respective
capacities until the last one has
acknowledged.
• Notary cannot be counted as one of the
attesting witnesses.
• Affixing of documentary stamp is not
required for validity.
 Some Discrepancies
 Par1 Art805 – No statement that the testator must
sign in the presence of the witnesses
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 Par2 Art805 – No statement that the testator and
the witnesses must sign every page in one
another’s presence.
• But these two things are required to be
stated in the attestation clause.
Conclusion is that they should be
complied with as requirements.
 Attestation clause is not required to state that the
agent signed in the testator’s presence - a
circumstance mandated by the 1st and 2nd
paragraphs of the article.
 Indication of Date – there is no requirement that an
attested will should be dated, unlike a holographic will.
CASE
Payad v. Tolentino
- The lower court denied probate on the will of deceased
Tolentino on the ground that the attestation clause was not
in conformity with the requirements of law in that it is not
stated therein that the testatrix caused Atty. Almario to write
her name at her express direction.
- Whether or not the will should be denied probate.
- SC held that it should not be denied because:
1. The deceased placed her thumb mark on each and
every page of the will and the attorney merely wrote
her name to indicate the place where she placed her
thumb mark. Thus, the attorney did not really sign for
her.
2. It was not necessary that the attestation clause
should state that the testatrix requested Atty.
Alamario to sign her name since she signed it in
accordance with law.
A statute requiring a will to be signed is satisfied if the
signature is made by the testator’s mark.
of
Matias v. Salud
- The CFI denied probate of the will of Gabina Raquel.
- It must be noted that Gabina Raquel was suffering from
herpes zoster that afflicted the right arm and shoulder of the
testatrix, which made writing difficult and a painful act.
- Thus, upon the insistence of the attorney, Gabina attempted
to sign, but since it was so painful she just managed to
thumbmarked the foot of the document and the left margin at
each page.
- The parties opposing the probate of the will contended that
the will was void due to the irregularities in the execution
thereof.
- One of the points raised by the oppositors was that the
finger mark can not be regarded as the decedent’s valid
signature as it does not show distinct identifying ridgelines.
- And since the finger mark was an invalid signature, there
must appear in the attestation clause that another person
wrote the testator’s name at his request.
Whether or not the will was valid
- The SC held that the will was valid.
- As to the clarity of the ridge impressions, it is so dependent
on aleatory requirements as to require dexterity that can be
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SUCCESSION REVIEWER
expected of very few persons; testators should not be
required to possess the skill of trained officers.
- And as to the validity of the thumbprints as signature, the SC
held that it has been held in a long line of cases that a
thumbprint is always a valid and sufficient signature for the
purpose of complying with the requirement of the article.
- Furthermore, the validity of thumbprints should not be limited
in cases of illness or infirmity.
- A thumbprint is considered as a valid and sufficient
signature in complying with the requirements of the article.
Garcia v. Lacuesta
- This case purports to the validity of the will executed by
Antero Mercado.
- The will is said to be irregularly execute as the attestation
clause did not mention that it was Atty. Javier who signed for
the decedent under the latter’s express direction.
- The other party however argued that such fact need not be
mentioned because although Atty. Javier wrote the name of
Mercado, Mercado nevertheless put a cross and that such
cross amounts to a signature by the decedent himself.
Whether or not the will was valid
- The SC held that it was not.
- Although there have been cases considering marks, such as
a cross, as sufficient signature, there is nothing in the
records that shows that Mercado usually uses a cross as his
signature.
- As such, the will was disallowed.
- Marks, such as a cross, can only be considered as a
signature if there is showing that the decedent was
accustomed to using such mark as signature.
Barut v. Cabacungan
- Barut applied for the probate of the last will and testament of
Maria Salomon.
- In the will, Salomon revoked all former wills she made. She
also stated that being unable to read and write, she
instructed Concepcion and Inoselda to read the will to her.
She also instructed Agayan to sign her (Salomon) name to it
as testator.
- The probate court found that the will was not entitled to
probate because the signed name of the testatrix on her
behalf looked more like the handwriting of one of the other
witnesses that that of the person whose handwriting it was
alleged to be.
WON the will was valid. Specifically, is the signature of the
person instructed by the testator to sign the will valid.
- YES. With respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix
signs his name or not.
- The important thing is that it clearly appears that the name of
the testatrix was signed at her express direction in the
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presence of 3 other witnesses and that they attested and
subscribed it in her presence and in the presence of one
another. That is all the statute requires.
- The cases relied upon by the oppositors are not in point. In
those cases, the reason for the invalidation of the wills
concerned was that the persons instructed to sign for the
testator signed their own names instead of the names of the
testators in each case.
- The will must be in writing and signed by the testator, or the
testator’s name written by some other person in his
presence, and by his express direction, and attested and
subscribed by 3 or more credible witnesses in the presence
of the testator and of each other.
- The fact that the testator signed the will or that he caused it
to be signed by another person at his express direction and
that the same was signed by the witnesses must be included
in the attestation.
Nera v. Rimando
- Only questioned raised by the evidence in this case as to
the due execution of the instrument propounded as a will is
whether the one of the subscribing witnesses was present in
the small room where the will was executed at the time
when the testator and the other subscribing witnesses
attached their signatures.
WON, the will was validly witnessed by one of the subscribing
witnesses to make the will valid.
- Yes. The subscribing witness validly witnessed the signing.
- Majority of the members of the court is of the opinion that the
subscribing witness was indeed in the small room to be able
to observe the signing of the will be the testator and other
subscribing witnesses.
- The trial court decided when it said that the fact that one of
the alleged witnesses signed the instrument in the outer
room when the others were inside would not be sufficient in
itself to invalidate the execution of the will.
- But this Court is of the opinion that had this subscribing
witness been proven to have been in the outer room, it
would have been invalid as a will.
- But it is especially to be noted that the position of the parties
with relation to each other at the moment of the subscription
of each signature must be such that they may see each
other sign if they choose to do so.
- It is enough that when the witness, if he chose to look at the
actual signing he could have done so by just merely casting
his eyes in the proper direction, such would be considered
already as a proper witnessing of the said execution of the
will.
- However, to extend to extend this doctrine further would
open the door to the possibility of all manner of fraud,
substitution and the like and would defeat the purpose for
which this particular condition is prescribed in the code as
one of the requisites in the execution of a will.
- Hence the will is to be admitted to probate.
- Actual seeing is not required, but the ability to see each
other, i.e. the testator and the witnesses, “by merely casting
eyes in the proper direction.”
Icasiano v. Icasiano
- Josefa Villacorte died in Manila on September 12, 1958; on
June 2, 1956, Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano
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SUCCESSION REVIEWER
before three instrumental witnesses, namely; attorneys Justo
P. Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B. Diy.
- The records show that the original of the will, consists of five
pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting
witnesses, Atty. Jose V. Natividad, on page three (3) thereof;
but the duplicate copy attached to the amended and
supplemental petition is signed by the testatrix and her three
attesting witnesses in each and every page.
- Witness Natividad, who testified on his failure to sign page
three (3) of the original, admits that he may have lifted two
pages instead of one when he signed the same, but affirmed
that page three (3) was signed in his presence.
Whether or not the will is void (since one of the pages in the
original copy was not signed by one of the witnesses)
- NO. The inadvertent failure of one witness to affix his
signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate.
- Impossibility of substitution of this page is assured not only
the fact that the testatrix and two other witnesses did sign
the defective page, but also by its bearing the coincident
imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses.
- The law should not be so strictly and literally interpreted as
to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control,
where the purpose of the law to guarantee the identity of the
testament and its component pages is sufficiently attained,
no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the
statutory requisites. Otherwise, witnesses may sabotage the
will by muddling or bungling it or the attestation clause".
- That the failure of witness Natividad to sign page three (3)
was entirely through pure oversight is shown by his own
testimony as well as by the duplicate copy of the will, which
bears a complete set of signatures in every page. The text of
the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of
the defect at the time.
- The law should not be so strictly and literally interpreted
where the purpose of the law to guarantee the identity of the
testament and its component pages is sufficiently attained.
Notes on Icasiano – Icasiano holding cannot, and should not, be
taken as a departure from the rule that the will should be signed by
the witnesses on every page. The carbon duplicate, it will be
noted, was regular in all respects. A cavalier disregard of the
formal requirements of wills, in reliance on Icasiano, is not
recommended.
Cagro v. Cagro
- The probate of the will allegedly executed by Vicente Cagro
who died in Laoangan, Pambujan, Samar, is being opposed
on the ground that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses.
- There is no question that the signature of the 3 witnesses to
the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the
witnesses on the left hand margin.
Whether the will is fatally defective.
- Yes. The attestation clause is a “memorandum of the facts
attending the execution of the will” required by law to be
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made by the attesting witnesses, and it must necessarily
bear their signatures. An unsigned attestation clause cannot
be considered as an act of the witnesses, since the omission
of their signatures at the bottom thereof negatives their
participation.
- DISSENT by Bautista: The liberal trend of the NCC in the
interpretation of wills should not be overlooked. In case of
doubt, the interpretation that would have the effect of
preventing intestacy prevails.
- Cruz Dissent by Tuason: The law on wills does not provide
that the attesting witness should sign the clause at the
bottom. In the absence of the such provision, there is no
reason why signatures on the margin are not good.
- An unsigned attestation clause cannot be considered as an
act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
Cruz v. Villasor
- This is a petition for review on certiorari on the judgment of
the CFI allowing the probate of the will of the late Valente
Cruz.
- The surviving spouse of Valente opposed the allowance of
the will alleging that the will was executed through fraud,
deceit, misrepresentation and undue influence; that the said
instrument was executed without the testator having been
fully informed of the contents thereof, particularly as to what
properties he was disposing; and that the supposed will was
not executed in accordance with law.
- It appears that of the 3 instrumental witnesses, one of them,
is at the same time the Notary Public before whom the will
was supposed to have been acknowledged.
Whether the supposed last will and testament of Valente Cruz
was executed in accordance with law, particularly Articles 805
and 806 of the NCC, the first requiring at least 3 credible
witnesses to attest and subscribe to the will, and the second
requiring the testator and the witnesses to acknowledge the
will before a notary public.
- NO. The notary public before whom the will was
acknowledge cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his
having signed the will.
- If the third witness were the notary public himself, he would
have to avow, assent, or admit his having signed the will in
from of himself. This cannot be done because he cannot
split his personality into two so that one will appear before
the other to acknowledge his participation in the making of
the will.
- To allow the notary public to act as third witness, or one of
the attesting and acknowledging witnesses, would have the
effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 805
requiring at least 3 credible witnesses to act as such and of
Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to
acknowledge the will.
- The SC declared the last will of Valente invalid.
- The notary public before whom the will was acknowledged
cannot be considered as the third instrumental witness since
he cannot acknowledge before himself his having signed the
will.
- To acknowledge before means to avow; to own as
genuine, to assent, to admit, and before means in front or
preceding in space or ahead of.
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- The function of a notary public is, among others, to guard
against any illegal or immoral arrangements. This function
would be defeated if the notary public were one of the
attesting witnesses.
Taboada v. Rosal
- Written in Cebuano-Visayan dialect, the will consists of 2
pages. The first page contains the entire testamentary
dispositions and is signed at the end or bottom of the page
by the testatrix alone and at the left hand margin by the 3
witnesses. The second page which contains the attestation
clause and the acknowledgement is signed at the end of the
attestation clause by the 3 witnesses and at the left hand
margin by the testatrix.
- The lower court denied probate of deceased Perez.
Whether or not the law requires that the testatrix and 3
witnesses sign at the end of the will and in the presence of the
testatrix and of one another.
- SC held that the will should be admitted because:
1. The signatures of the witnesses in the left hand
margin of the 1st page attested not only to the
genuineness of the signature of the testatrix but also
the due execution of the will as embodied in the
attestation clause.
2. Unsubstantial departure from the usual forms should
be ignored esp. where the authenticity of the will is
not assailed.
3. The objects of the attestation and subscription were
fully met when the witnesses signed at the sole page
where the testamentary
- Dispositions were contained, esp. so when the will was
properly identified by the subscribing witness to be the same
will executed by the testatrix. There was no question of fraud
or substitution behind the questioned order.
- SC held that this would have been a fatal defect were it not
for the fact that, in this case, it is discernible from the entire
will that it is really and actually composed of only 2 pages
duly signed by the testatrix and her witnesses.
- The acknowledgement itself in the second page states that
“This Last Will and Testament consists of two pages
including this page.”
Whether or not it should be invalidated due to the attestation
clause’s failure to state the number of pages used in writing the
will.
- Attestation consists in witnessing the testator’s execution of
the will in order to see and take note mentally that those
things are done which the statute requires for the execution
of a will and that the signature of the testator exists as a fact.
- Subscription is the signing of the witnesses’ names upon the
same paper for the purpose of identification of such paper
as the will which was executed by the testator.
ART. 807. If the testator be deaf, or a deaf-mute,
he must personally read the will, if able to do
so; otherwise, he shall designate two persons
to read it and communicate to him, in some
practicable manner, the contents thereof.
ART. 808. If the testator is blind, the will shall be
read to him twice; once by one of the
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subscribing witnesses, and again, by the
notary public before whom the will is
acknowledged.
 Special Requirements for Handicapped Testators
 For Deaf / Deaf-Mute testator
1. Able to Read – must read the will personally
2. Unable to Read – must designate two persons
to read the will and communicate to him, in
some practicable manner its contents.
• Does this mean the 2 persons must
perform each task in turn?
 For Blind Testator – to be read to him twice, once
by one of the subscribing witnesses, and another
time by the notary.
 Art808 is MANDATORY
 If art808 is mandatory, by analogy Art807 is also
mandatory. Failure to comply with either would
result in nullity and denial of probate.
 The requirement has been liberally applied, SC
declaring substantial compliance to be sufficient.
 Applies not only to blind testators but also to those
who, for one reason or another, are incapable of
reading their wills.
 Substantially complied with when documents were
read aloud to the testator with each of the 3
instrumental witnesses and the notary following the
reading with their respective copies.
 Burden of proof is upon the proponent of the will that
the special requirement of the article was complied
with. At the same time, there is no requirement that
compliance with the requirement be stated either in the
will or the attestation clause.
CASE
Garcia v. Vasquez
- This case pertains to the will of the late Gliceria Avelino del
Rosario.
- Upon the decedent’s death, her niece Consuelo Precilla,
filed a petition for the probate of the decedent’s holographic
will and for the latter’s appointment as the special
administratrix of the decedent’s estate.
- Witnesses presented by the proponents of the will testified
that the decedent was of sound mind when she executed
the will, and that the decedent first read the will silently
before she signed it.
- Oppositors of the will however contended that it was
physically impossible for the decedent to have read the will
as she had a severely impaired eyesight as testified by Dr.
Jesus Tamesis.
- The physician found out on March 1960 that the decedent
had a cataract on the left eye and her right eye also had
difficulty seeing printed pages.
- The physician further testified that despite the operation and
removal of the cataract and the decedent’s being fitted with
aphakic lens, the latter’s vision remained capable of viewing
SUCCESSION REVIEWER
only distant objects and is not capable of reading printed
articles.
Whether or not the decedent is considered “blind” pursuant to
the provisions of Art 808
- Yes. The SC held that for all intents and purposes of the
rules on probate, the decedent is like a blind testator, and
the due execution of her will would have required faithful
observance of the provisions of Art 808 of the CC.
- Also, The SC found it worthy to mention the fact that that the
will was executed without any regard for the defective vision
of the decedent. The testament was cramped in a single
page and was abundant with typographical errors. This only
strengthens the proposition that the decedent could not have
read or understood the alleged testament.
Whether or not the will was duly executed
- No. Considering that the testator is within the term “blind” as
contemplated under Art 808, the due execution of the
decedent’s will would have required the reading of the will
twice (once by one of the witnesses, and once by the
notary).
- However, no such reading was proved or shown in this
case. Thus, the will should be declared invalid.
- The rationale behind the reading of the will to the blind
testator is to make the provisions thereof known to him, so
that he may be able to object if they are not in accordance
with his wishes.
- A person who is not blind but is similarly incapacitated to
read the will is within the ambit of Art 808.
Alvarado v. Gaviola, Jr.
- On 5 November 1977, 79-year old Brigido Alvarado
executed a notarial will entitled “Huling Habilin” wherein he
disinherited an illegitimate son, petitioner Cesar Alvarado,
and expressly revoked a previously executed holographic
will at the time awaiting probate before the RTC of Laguna.
- According to Bayani Ma. Rino, private respondent, he was
present when the said notarial will was executed, together
with three instrumental witnesses and the notary public,
where the testator did not read the will himself, suffering as
he did from glaucoma.
- Rino, a lawyer, drafted the eight-page document and read
the same aloud before the testator, the three instrumental
witnesses and the notary public, the latter four following the
reading with their own respective copies previously
furnished them.
- Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng
Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May
Petsa Nobiembre 5, 1977 ni Brigido Alvarado” was executed
changing some dispositions in the notarial will to generate
cash for the testator’s eye operation.
- Said codicil was likewise not read by Brigido Alvarado and
was read in the same manner as with the previously
executed will.
- When the notarial will was submitted to the court for probate,
Cesar Alvarado filed his opposition as he said that the will
was not executed and attested as required by law; that the
testator was insane or mentally incapacitated due to senility
and old age; that the will was executed under duress, or
influence of fear or threats; that it was procured by undue
pressure and influence on the part of the beneficiary; and
that the signature of the testator was procured by fraud or
trick.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
Whether or not notarial will of Brigido Alvarado should be
admitted to probate despite allegations of defects in the
execution and attestation thereof as testator was allegedly
blind at the time of execution and the double-reading
requirement under Art. 808 of the NCC was not complied with.
- YES. The spirit behind the law was served though the letter
was not. Although there should be strict compliance with the
substantial requirements of law in order to insure the
authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the
testator’s will.
- Cesar Alvardo was correct in asserting that his father was
not totally blind (of counting fingers at 3 feet) when the will
and codicil were executed, but he can be so considered for
purposes of Art. 808.
- That Art. 808 was not followed strictly is beyond cavil.
- However, in the case at bar, there was substantial
compliance where the purpose of the law has been satisfied:
that of making the provisions known to the testator who is
blind or incapable of reading the will himself (as when
he is illiterate) and enabling him to object if they do not
accord with his wishes.
- Rino read the testator’s will and codicil aloud in the presence
of the testator, his three instrumental witnesses, and the
notary public.
- Prior and subsequent thereto, the testator affirmed, upon
being asked, that the contents read corresponded with his
instructions.
- Only then did the signing and acknowledgment take place.
- There is no evidence that the contents of the will and the
codicil were not sufficiently made known and communicated
to the testator.
- With four persons, mostly known to the testator, following
the reading word for word with their own copies, it can be
safely concluded that the testator was reasonably assured
that what was read to him were the terms actually appearing
on the typewritten documents.
- Art. 808 of the New Civil Code provides: “If the testator is
blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public
before whom the will is acknowledged.”
- The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will to
himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if
they are not in accordance with his wishes.
- Although there should be strict compliance with the
substantial requirements of law in order to insure the
authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the
testator’s will.
- See Abangan v. Abangan.
ART. 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and
influence, defects and imperfections in the
form of attestation or in the language used
therein shall not render the will invalid if it is
proved that the will was in fact executed and
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SUCCESSION REVIEWER
attested in substantial compliance with all the
requirements of Article 805.
 According to JBL Reyes, “Liberalization Running Riot,”
instead a possible rewording would be –
In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and
influence, defects and imperfections in the
form of attestation or in the language used
therein shall not render the will invalid if
such defects and imperfections can be
supplied by an examination of the will itself
and it is proved that the will was in fact
executed and attested in substantial
compliance with all the requirements of
Article 805.
 Examples
1. A failure by the attestation clause to state that
the testator signed every page can be liberally
construed, since that fact can be checked by a
visual examination.
2. Failure by the attestation clause to state that
the witnesses signed in one another’s
presence should be considered a FATAL
FLAW since the attestation clause is the only
textual guarantee of compliance.
 The rule is that omission which can be supplied by an
examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to
probate of the will being assailed.
 However, those omissions which cannot be supplied
except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of
the will itself.
CASES
Caneda v. CA
- On December 5, 1978, Mateo Caballero, a widower without
any children and already in the twilight years of his life,
executed a last will and testament at his residence before 3
witnesses.
- He was assisted by his lawyer, Atty. Emilio Lumontad.
- In the will, it was declared that the testator was leaving by
way of legacies and devises his real and personal properties
to several people all of whom do not appear to be related to
the testator.
- 4 months later, Mateo Caballero himself filed a case seeking
the probate of his last will and testament, but numerous
postponements pushed back the initial hearing of the
probate court regarding the will.
- On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court.
- Thereafter one of the legatees, Benoni Cabrera, sought his
appointment as special administrator of the testator’s estate.
- Thereafter, the petitioners, claiming to be nephews and
nieces of the testator, instituted a second petition for
intestate proceedings. They also opposed the probate of the
testator’s will and the appointment of a special administrator
for his estate.
- Benoni Cabrera died and was replaced by William Cabrera
as special administrator and gave an order that the testate
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proceedings for the probate of the will had to be heard and
resolved first.
- In the course of the proceedings, petitioners opposed to the
allowance of the testator’s will on the ground that on the
alleged date of its execution, the testator was already in
poor state of health such that he could not have possibly
executed the same. Also the genuineness of the signature of
the testator is in doubt.
- On the other hand, one of the attesting witnesses and the
notary public testified that the testator executed the will in
question in their presence while he was of sound and
disposing mind and that the testator was in good health and
was not unduly influenced in any way in the execution of his
will.
- Probate court then rendered a decision declaring the will in
question as the last will and testament of the late Mateo
Caballero.
- CA affirmed the probate court’s decision stating that it
substantially complies with Article 805. Hence this appeal.
WON, the attestation clause in the will of the testator is fatally
defective or can be cured under the art. 809.
- No. It does not comply with the provisions of the law.
- Ordinary or attested wills are governed by Arts. 804 to 809.
The will must be acknowledged before a notary public by the
testator and the attesting witnesses. The attestation clause
need not be written in a language known to the testator or
even to the attesting witnesses.
- It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by
the witnesses it gives affirmation to the fact that compliance
with the essential formalities required by law has been
observed.
- The attestation clause, therefore, provides strong legal
guaranties for the due execution of a will and to insure the
authenticity thereof.
- It is contended by petitioners that the attestation clause in
the will failed to specifically state the fact that the attesting
witnesses witnessed the testator sign the will and all its
pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the
presence of the testator and of each other. And the Court
agrees.
- The attestation clause does not expressly state therein the
circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of
each other.
- The phrase, “and he has signed the same and every page
thereof, on the space provided for his signature and on the
left hand margin,” obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the
words” as his last will and testament.”
- Clearly lacking is the statement that the witnesses signed
the will and every page thereof in the presence of the
testator and of one another. That the absence of the
statement required by law is a fatal defect or imperfection
which must necessarily result in the disallowance of the will
that is here sought to be probated.
- Also, Art. 809 does not apply to the present case because
the attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the
presence of the testator and of each other. The defect in this
case is not only with respect to the form or the language of
the attestation clause. The defects must be remedied by
intrinsic evidence supplied by the will itself which is clearly
lacking in this case.
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- Therefore, the probate of the will is set aside and the case
for the intestate proceedings shall be revived.
- Article 809 cannot be used to cure the defects of the will
when it does not pertain to the form or language of the will.
This is because there is not substantial compliance with
Article 805.
Cases for Arts. 807-809
Gil v. Murciano
- The CFI of Manila admitted to probate the alleged will and
testament of the deceased Carlos Gil. The oppositor Pilar Gil
Vda. de Murciano appealed to the SC, arguing that the will
was void since the attestation clause thereof does not state
that the alleged testator signed the will. It declares only that
it was signed by the witnesses.
Whether or no the will is valid.
- NO. This is a fatal defect, for the precise purpose of the
attestation clause is to certify that the testator signed the will,
this being the most essential element of the clause.
- Without it there is no attestation at all. It is said that the court
may correct a mere clerical error.
- This is too much of a clerical error for it affects the very
essence of the clause. Alleged errors may be overlooked or
corrected only in matters of form which do not affect the
substance of the statement.
- Correction may not be cured by inference considering the
clear, unequivocal, language of the statute as to how the
attestation clause should be made. It is to be supposed that
the drafter of the alleged will read the clear words of the
statute when he prepared it. For the court to supply alleged
deficiencies would be against the evident policy of the law.
- In adopting liberal construction of a will, evidence aluinde is
not allowed to fill the void or supply missing details. What is
permitted is a probe into the will, an exploration within its
confines, to ascertain its meaning or to determine the
existence or absence of the requisite formalities of the law.
- The right to make a testamentary disposition of one's
property is purely of statutory creation, and is available only
upon a compliance with the requirements of the statute. The
formalities which the Legislature has prescribed for the
execution of a will are essential to its validity, and cannot be
disregarded.
- The mode so prescribed is the measure for the exercise of
the right, and the heir can be deprived of his inheritance only
by a compliance with this mode.
- For the purpose of determining whether a will has been
properly executed, the intention of the testator in executing it
is entitled to no consideration.
- For that purpose only the intention of the Legislature, as
expressed in the language of the statute, can be considered
by the court, and whether the will as presented, shows a
compliance with the statute.
Cuevas v. Achacoso
- Valentina Cuevas, filed a petition for the probate of the will
of Jose Venzon, her husband.
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- Pilar Achacoso filed an alternative petition for the probate of
a pervious will praying that if the will submitted by the widow
be rejected, the other will be admitted in lieu thereof.
- The previous will names Pilar Achacoso as one of the heirs,
a statement absent in the 2nd will.
- Pilar opposes the probate of the 2nd for lack of attestation
clause, or if there be one that it is not signed by the
instrumental witnesses, a defect which invalidates the will.
- The will winds up with the ff. clause: In witness whereof, I
sign this testament or last will….in the presence of the 3
witnesses…
Whether the attestation clause is valid.
- Yes. The only anomaly is that it appears to be an attestation
made by the testator himself more than by the instrumental
witnesses. This, however, is not serious or substantial as to
affect the validity of the will, it appearing that right under the
signature of the testator, there appear the signatures of the 3
instrumental witnesses.
- Instrumental witness is one who takes part in the execution
of an instrument or writing, he does not merely attest to the
signature of the testator but also to the proper execution of
the will. The fact that the 3 witnesses have signed the will
immediately under the signature of the testator, show that
they have in fact attested not only the genuineness of his
signature but also to the due execution of the will as
embodied in the attestation clause.
- The object of the solemnities surrounding the execution of
the wills is to close the door against bad faith and fraud, to
avoid substitution of the wills and testament and to
guarantee their truth and authenticity. Therefore the laws on
this subject should be interpreted in such a way as to attain
these primordial ends. But on the other hand also one must
not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and
frustrative of the testator’s will must be disregarded.
Abada v. Abaja
- Spouses Abada and Toray died without legitimate children.
- Alipio Abaja filed with the CFI a petition for the probate of the
will of Abada. Abada allegedly names his testamentary heirs
his natural children: Eulogio and Rosario. Alipio is the son of
Eulogio.
- Caponong opposed the petition on the ground that Abada
left no will when he died.
- Caponong alleged that the will should be disallowed on the
following reasons: (1) it was not executed and attested as
required by law; (2) it was not intended as the last will of the
testator; and (3) it was procured by undue and improper
pressure and influence on the part of the beneficiaries.
- Later, Caponong-Noble was named as Special Administratix
of the estate of Abada and Toray. Caponong-Noble moved
for the dismissal of the petition for probate of the will of
Abada but such motion was denied.
- When the case was submitted for decision, a Resolution
was rendered where it was held that there was a substantial
compliance with the formalities of the will. In the said
Resolution, the trial court only determined whether the will of
Abada has an attestation clause as required by law.
- Upon appeal, the CA affirmed the trial court’s Resolution.
Hence, this appeal.
SUCCESSION REVIEWER
Whether the CA erred in sustaining the trial court in admitting
to probate the will of Abada.
- NO. The SC affirmed the decision of the Court of Appeals.
What laws apply to the probate of the last will of Abada?
- Abada executed his will on June 1932. The laws in force at
that time are the Old Civil Code and the Code of Civil
Procedure.
Whether the will of Abada requires acknowledgement before a
notary public.
- NO. What Caponong-Noble cited was Arts. 804 & 806 of the
NCC. In this case, the Code of Civil Procedure applies
where the intervention of a notary is not necessary in the
execution of any will. Thus, Abada’s will does not require
acknowledgment before a notary public.
Whether the will must expressly state that it is written in a
language or dialect known to the testator.
- NO. There is no statutory requirement to state in the will
itself that the testator knew the language or dialect used in
the will. This is a matter that a party may establish by proof
aliunde. In this case, Alipio’s testimony sufficiently proves
that Abada speaks the Spanish Language.
Whether the will has an attestation clause.
- YES.
Whether the attestation clause states the number of pages on
which the will was written.
- YES. It showed that the pages are numbered correlatively
with the phrase containing “UNO y DOS” meaning “ONE”
and “TWO”.
Whether the attestation clause states that the testator signed
the will in its every page in the presence of 3 witnesses.
- The English translation of the attestation clause clearly
states that Abada signed the will and its every page in the
presence of the witnesses.
- However, the SC held that Caponong-Noble was correct is
saying that the attestation clause does not indicate the
number of witnesses. On this point, the Court agreed with
the CA in the application of the rule on substantial
compliance in determining the number of witnesses. While
the attestation clause does not state the number of
witnesses, a close inspection of the will shows that 3
witnesses signed it.
Whether the attestation clause states that the witnesses
witnessed and signed the will and all its pages in the presence
of the testator and each other.
- YES. The last part of the attestation clause shows that the
attesting witnesses witnessed the signing of the will of the
testator, and that each signed the will in the presence of one
another and of the testator.
- The question on the number of witnesses is answered by an
examination of the will itself and without the need for
presentation of evidence aliunde.
- Precision of language in drafting an attestation clause is
desirable. However, it is not imperative that a parrot-like
copy of the words of the state be made. It is sufficient if from
the language employed it can reasonable deduced that the
attestation clause fulfills what the law expects of it.
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ART. 810. A person may execute a holographic
will which 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.
 Simplicity of the holographic will is its obvious
advantage, along with other benefits such as
1. Secrecy
2. Inexpensiveness
3. Brevity
 But that very simplicity brings about disadvantages –
1. Danger of forgery
2. Greater difficulty of determining testamentary
capacity
3. Increased risk of duress
 REQUIREMENTS OF A HOLOGRAPHIC WILL
1. COMPLETELY HANDWRITTEN BY THE
TESTATOR
• If testator executes only part of the will in
his handwriting and other parts are not so
written, the ENTIRE will is void because the
article would be violated.
2. DATED BY HIM
• Date – Specification or mention, in a
written instrument, of the time [day, month
and year] it was made [executed]. – Black’s
Law Dictionary
• As a general rule, the date in a
holographic will should include the day,
month, and year of its execution. However,
when there is no appearance of fraud, bad
faith, undue influence and pressure and the
authenticity of the Will is established and the
only issue is whether or not the date FEB./61
is a valid compliance, probate of the
holographic will should be allowed under the
principle of substantial compliance.
• A complete date is required to provide
against such contingencies as –
a) Two competing wills executed on the
same day, or
b) Of a testator becoming insane in the
day on which a will was executed.
• The law does not specify a particular
location where the date should be placed in
the will. The only requirements are that the
date be in the will itself and executed in the
hand of the testator.
3. SIGNED BY TESTATOR
• Must signature be at the will’s end [at
least the logical end]? YES, article 812 seems
to imply this.
• May the testator sign by means of a
thumbprint? NO, article says will must be
SUCCESSION REVIEWER
“entirely handwritten, dated and signed by the
hand of the testator himself.”
CASES
Roxas v. De Jesus
- After the death of the de Jesus spouses, Simeon Roxas
(brother of the deceased Bibliana Roxas de Jesus) filed a
special proceeding to settle the intestate estate of the de
Jesus spouses.
- Later, Simeon delivered to the court a document purporting
to be the holographic will of Bibliana. He stated that after
being appointed as administrator, he found a notebook of
Bibliana which contained the letter-will addressed to her
children written and signed by Bibliana.
- The will was dated “FEB./61” and this was confirmed by the
testimonies of Simeon as and the 2 children of Bibliana.
- Henson, another compulsory heir, opposed the probate of
the holographic will contending that it was not dated as
required by Art. 810.
- She contends that the law requires that the will should
contain the day, month, and year of its execution and this
should be complied with.
WON the holographic will dated as “FEB./61” was properly
dated.
- YES. If the testator attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the
objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the
testator.
- SC found no evidence of bad faith and fraud in the execution
of the will, nor was there substitution of wills. Neither is there
any question as to the genuineness and due execution of
the will.
- The objection put forth by Henson is too technical to be
entertained.
- GR: The date in a holographic will should include the day,
month and year of execution.
- E: In the absence of appearance of fraud, bad faith, undue
influence, and pressure and the authenticity of the will is
established, and the only issue is the validity of the date
“FEB.61” appearing on the will, the probate should be
allowed under the principle of substantial compliance.
Labrador v. CA
- Melecio died leaving behind a parcel of land to his heirs.
However, during probate proceedings, Jesus and
Gaudencio filed an opposition on the ground that the will has
been extinguished by implication of law alleging that before
Melecio’s death, the land was sold to them evidenced by
TCT No. 21178. Jesus eventually sold it to Navat.
- Trial court admitted the will to probate and declared the TCT
null and void. However, the CA on appeal denied probate on
the ground that it was undated.
Whether or not the alleged holographic will is dated, as
provided for in Article 810 of the Civil Code
- SC held that it is dated because:
- The law does not specify a particular location where the date
should be placed in the will. The only requirements are that
the date be in the will itself and executed in the hand of the
testator.
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- The intention to show March 17 1968 as the date of the
execution is plain from the tenor of the succeeding words of
the paragraph. It states that “this being in the month of
March 17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the one
who made this writing is no other than Melecio Labrador,
their father.”
- This clearly shows that this is a unilateral act of Melecio who
plainly knew that he was executing a will.
- Article 810 of the Civil Code
ART. 811. In the probate of a holographic will, it
shall be necessary that at least one witness
who knows the handwriting and signature of
the testator explicitly declare that the will and
the signature are in the handwriting of the
testator. If the will is contested, at least three
of such witnesses shall be required.
In the absence of any competent witness
referred to in the preceding paragraph, and if
the court deem it necessary, expert testimony
may be resorted to,
 Article applies only to POST MORTEM probates, it
does not apply to Ante Mortem probates since in such
cases the testator himself files the petition and will
identify the document itself.
 The three witness provision in case of contested
holographic wills is DIRECTORY, not mandatory.
 Testamentary wills – mandatory
 Holographic wills – directory
 Witnesses must:
1. Know the handwriting and signature of the
testator
2. Truthfully declare that handwriting and
signature is that of the testator
 In the probate of a holographic will, the document itself
must be produced. Therefore, a holographic will cannot
be probated.
 The execution and contents of a lost or destroyed
holographic will MAY NOT BE PROVED by the bare
testimony of witnesses who have seen and/or read
such will. However, attested wills MAY BE PROVED by
testimonial evidence.
 Why the difference in rules?
 Because of the nature of the wills. In holographic
wills, the only guarantee of authenticity is the
handwriting itself. In attested wills, the testimony of
subscribing or instrumental witnesses and of the
notary guarantees authenticity of the will.
 Loss of the holographic will entails loss of the only
medium of proof while loss of the ordinary will
leaves the subscribing witnesses available to
authenticate.
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SUCCESSION REVIEWER
 In the case of ordinary wills, it would be more
difficult to convince 3 witnesses plus the notary to
deliberately lie.
 Considering the holographic will may consist of 2-3
pages and only one of them need be signed, the
substitution of the unsigned pages may go
undetected.
 In the case of a lost ordinary will, the 3 subscribing
witnesses would be testifying as to a FACT which
they saw, namely the act of the testator of
subscribing the will. Whereas in the case of a lost
holographic will, the witnesses would testify as to
their OPINION of the handwriting which they
allegedly saw, an opinion which cannot be tested in
court nor directly contradicted by the oppositors
because the handwriting itself is not at hand.
 EXCEPTION – may be proved by a photographic or
photostatic copy, even a mimeographed or carbon
copy, or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court.
CASES
Azaola v. Singson
- The subject of this case is the holographic will of Fotunata
Yance.
- Francisco Azaola submitted the said holographic will
whereby Maria Azaola was made the sole heir of the
deceased.
- The probate of the will is contested on the ground that the
will was executed under undue influence, that the document
was not intended to be the will of the deceased and that the
proponent of the will failed to present at least three
witnesses who could declare the will and the signature
therein to be in the writing of the testatrix.
- In this case, the proponent of the will only presented one
witness to prove that the body of and signature in the will
was that of the testator
Whether or not the three-witness rule is mandatory and
applicable in this case
- The SC held that the petitioner is not bound to produce more
than one witness as the authenticity of the will is not in
question.
- Granting also that the genuineness of the will is contested,
the provision of Art 811 should not be interpreted to require
the compulsory presentation of the three witnesses.
- First, it should be noted that in holographic wills, no witness
is required in the execution thereof, thus the existence of the
witnesses possessing the requisite qualifications is a matter
beyond the control of the proponent.
- Second, the law itself contemplates a situation where no
competent witness can be produced thus allowing the court
to resort to expert evidence to supply the deficiency.
- To clarify further, the option to require expert evidence
depends on the discretion of the court. If the court is
convinced by the testimony of the witnesses, it may no
longer ask for expert evidence. However, if there is no
competent witness or if those produced were not convincing,
the court may accordingly call for expert evidence.
- Thus, the case is remanded to allow the parties to adduce
additional evidence including expert testimony.
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- Art 811 requiring three witnesses in the probate of a
contested holographic will is merely directive and not
mandatory.
Codoy v. Calugay
- On 6 April 1990, Evangeline Calugay, Josephine Salcedo
and Eufemia Patigas, devisees and legatees of the
holographic will of the deceased Matilde Seño Vda. de
Ramonal, filed a petition for probate of the said will.
- They attested to the genuineness and due execution of the
will on 30 August 1978.
- Eugenio Ramonal Codoy and Manuel Ramonal filed their
opposition claiming that the will was a forgery and that the
same is even illegible.
- They raised doubts as regards the repeated appearing on
the will after every disposition, calling the same out of the
ordinary.
- If the will was in the handwriting of the deceased, it was
improperly procured.
- Evangeline Calugay, etc. presented 6 witnesses and various
documentary evidence.
- The first witness was the clerk of court of the probate court
who produced and identified the records of the case bearing
the signature of the deceased.
- The second witness was election registrar who was made
to produce and identify the voter’s affidavit, but failed to as
the same was already destroyed and no longer available.
- The third, the deceased’s niece, claimed that she had
acquired familiarity with the deceased’s signature and
handwriting as she used to accompany her in collecting
rentals from her various tenants of commercial buildings and
the deceased always issued receipts.
- The niece also testified that the deceased left a holographic
will entirely written, dated and signed by said deceased.
- The fourth witness was a former lawyer for the deceased in
the intestate proceedings of her late husband, who said that
the signature on the will was similar to that of the deceased
but that he can not be sure.
- The fifth was an employee of the DENR who testified that
she was familiar with the signature of the deceased which
appeared in the latter’s application for pasture permit.
- The fifth, respondent Evangeline Calugay, claimed that
she had lived with the deceased since birth where she had
become familiar with her signature and that the one
appearing on the will was genuine.
- Codoy and Ramonal’s demurrer to evidence was granted by
the lower court. It was reversed on appeal with the Court of
Appeals which granted the probate.
Whether or not Article 811 of the Civil Code, providing that at
least three witnesses explicitly declare the signature in a
contested will as the genuine signature of the testator, is
mandatory or directory.
- YES. The word “shall” connotes a mandatory order, an
imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word “shall”,
when used in a statute, is mandatory.
- In the case at bar, the goal to be achieved by the law, is to
give effect to the wishes of the deceased and the evil to be
prevented is the possibility that unscrupulous individuals
who for their benefit will employ means to defeat the wishes
of the testator.
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SUCCESSION REVIEWER
- The paramount consideration in the present petition is to
determine the true intent of the deceased.
Whether or not the witnesses sufficiently establish the
authenticity and due execution of the deceased’s holographic
will.
- NO. We cannot be certain that the holographic will was in
the handwriting of the deceased.
- The clerk of court was not presented to declare explicitly that
the signature appearing in the holographic will was that of
the deceased.
- The election registrar was not able to produce the voter’s
affidavit for verification as it was no longer available.
- The deceased’s niece saw pre-prepared receipts and letters
of the deceased and did not declare that she saw the
deceased sign a document or write a note.
- The will was not found in the personal belongings of the
deceased but was in the possession of the said niece, who
kept the fact about the will from the children of the
deceased, putting in issue her motive.
- Evangeline Calugay never declared that she saw the
decreased write a note or sign a document.
- The former lawyer of the deceased expressed doubts as to
the authenticity of the signature in the holographic will.
- (As it appears in the foregoing, the three-witness
requirement was not complied with.)
- A visual examination of the holographic will convinces that
the strokes are different when compared with other
documents written by the testator.
- The records are remanded to allow the oppositors to
adduce evidence in support of their opposition.
- The object of solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise the right to make a will.
- However, we cannot eliminate the possibility of a false
document being adjudged as the will of the testator, which is
why if the holographic will is contested, the law requires
three witnesses to declare that the will was in the
handwriting of the deceased.
- Article 811, paragraph 1. provides: “In the probate of a
holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are
in the handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.”
- The word “shall” connotes a mandatory order, an imperative
obligation and is inconsistent with the idea of discretion and
that the presumption is that the word “shall”, when used in a
statute, is mandatory.
Gan v. Yap
- On November 20, 1951, Felicidad Esguerra Alto Yap died of
heart failure in the UST hospital leaving properties in
Bulacan and in Manila.
- On March 17, 1952, Fausto E. Gan initiated these
proceedings in CFI Manila for probate the holographic will
executed allegedly by the deceased.
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- In opposition to said proceedings, the surviving husband
Ildefonso Yap asserted that the deceased had not left any
will, nor executed any testament during her lifetime.
- After hearing the parties, the court refused to probate the
alleged will. The will itself was not presented.
- Sometime in 1950, Felicidad Esguerra mentioned to her first
cousin Vicente Esguerra her desire to make a will. However,
she wanted it to be a secret because she said that it would
be useless if her husband discovered or knew about it.
- So Vicente consulted with the nephew of Felicidad and
found out that it could be done provided that the document
was entirely in her handwriting, signed and dated by her.
- As a result of this, Felicidad proceeded with the making of
her will. Though it was a secret, she would show people who
would visit her will.
- After evaluating the pieces of evidence presented before the
court, the trial judge had to accept the oppositor’s evidence
that Felicidad did not and could not have executed such
holographic will.
- Hence this appeal.
WON, a lost holographic will can be admitted to probate.
- No. Articles 810-814 govern holographic wills. It is stated
that, “A person may execute a holographic will which 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 our out of the Philippines, and need not be
witnessed.”
- Unlike ordinary wills, holographic wills need not observe the
rules laid down in Art. 805 for its compliance with the law. As
long as it is written entirely, dated and signed by the testator
himself, then it will be sufficient proof that it has been
executed in accordance with law.
- However, witnesses may be brought in so as to verify that
the will and the signature are in the handwriting of the
testator. The witnesses so presented do not need to have
seen the execution of the holographic will.
- In the case hand however, the will holographic will was not
presented to the court. Obviously, when the will itself is not
submitted, these means of opposition and, of assessing the
evidence are not available. And then the only guaranty of
authenticity – the testator’s handwriting – has disappeared.
- It is therefore to be concluded that the execution and the
contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen
and/ or read such will.
- This is because the only guaranty of the authenticity is the
handwriting itself. The loss of the holographic will entails the
loss of the only medium of proof.
- That even if oral testimony were admissible to establish and
probate a lost holographic will, the evidence submitted by
the petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that clear and
distinct proof required by Rule 77.
- Rejection of the alleged will must be sustained
- The execution and the contents of a lost or destroyed
holographic will may not be proved by bare testimony of
witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material proof
of authenticity.
Rodelas v. Aranza
- The probate court ordered the dismissal of Rodelas’ petition
for the allowance of the holographic will of deceased
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SUCCESSION REVIEWER
Ricardo B. Bonilla on the ground that the alleged photostatic
copy of the will which was presented for probate, cannot
stand in lieu of the lost original, for the law regards the
document itself as the material proof of the authenticity of
the said will.
Whether a holographic will which was lost or can not be found
can be proved by means of a photostatic copy
- Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court
after its due execution has been proved.
- The probate may be uncontested or not. If uncontested, at
least one identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least
three identifying witnesses are required.
- However, if the holographic will has been lost or destroyed
and no other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the
testator and the handwritten will.
- But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the
standard writings of the testator. Even a mimeographed or
carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court, may be
allowed.
- If the holographic will has been lost or destroyed and no
other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the
testator in said will.
ART. 812. In holographic wills, the dispositions of
the testator written below his signature must
be dated and signed by him in order to make
them valid as testamentary dispositions.
ART. 813. When a number of dispositions
appearing in a holographic will are signed
without being dated, and the last disposition
has a signature and a date, such date
validates the dispositions preceding it,
whatever be the time of prior dispositions.
 Formal Requirements for Additional Dispositions in a
Holographic Will
1. Signature
2. Date
 When there are Several Additional Dispositions
1. Signature and date, or
2. Each additional disposition signed and
undated, but the last disposition signed and
dated.
 NOTES
1. If several additional dispositions, each of which
is dated, but only the last is dated and signed,
then only the last additional disposition is valid.
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2. If additional dispositions before the last are not
signed and not dated, but the last disposition is
signed and dated, what happens to the
intermediate ones?
• If made on one occasion – last disposition
signed and dated validates all.
• If on different occasions – intermediate
additions are void.
• But distinction is practically worthless
because circumstances of execution of
holographic wills are often difficult to
prove.
ART. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the
testator must authenticate the same by his
full signature.
 Full signature does not mean testator’s full name, only
his usual and customary signature.
 Effect of non-compliance – the change [insertion,
cancellation, etc.] is simply considered NOT MADE.
The will is not thereby invalidated as a whole, but at
most only as regards the particular words erased,
corrected or inserted UNLESS the portion involved is
an essential part of the will, such as the date.
CASE
Kalaw v. Relova
- Natividad Kalaw left a holographic will. It is not contested
that the will was in her handwriting as certified by the NBI.
The will however has alterations/insertions. The will
originally named Rosa, the decedent’s sister as her sole heir
and administrator, but this was crossed out and changed to
her brother Gregorio. Such alteration was however not
authenticated by the full signature of the decedent.
- Hence, the will was denied probate by the trial court
Whether the will is valid or not.
- It is invalid. Ordinarily, when a number of erasures,
corrections and interlineations made by the testator in a
holographic sill have not been noted under his signature, the
will in not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or interline.
- However, in this case, the will in dispute had only one
substantial provision, which was altered by substituting the
original heir with another, but which alteration did not have
the signature of the testator, the effect must be that the
entire will is voided for the reason that nothing remains in
the will after that which could remain valid.
- To state that the will as first written should be given efficacy
is to disregard the seeming change of mind of the testatrix.
But that change of mind can neither be given effect because
she failed to authenticate it in the manner required by law by
affixing her full signature.
- When a number of unauthenticated erasures, corrections
and interlineations are made by the testator in a holographic
will, the same is not thereby invalidated as a whole, but at
most only as respects the particular words erased, corrected
38
SUCCESSION REVIEWER
or interlined. Except however, if after all the alterations were
voided, nothing remains in the will.
Comments – The holding that the insertion of the name of Gregorio
cannot be given effect for not having been done in accordance with
the requirement of Art814 is beyond question. Why, however, was
the cancellation of the original testamentary institution given
effect? That cancellation was not done in the way mandated by the
article.
To say, as the decision does, that “to state that the will as first
written should be given efficacy is to disregard the seeming
change of mind of the testatrix,” is no argument, because it is not
enough that the testator manifest his intent – he must manifest in a
manner required by law.
ART. 815. When a Filipino is in a foreign country,
he is authorized to make a will in any of the
forms established by the law of the country in
which he may be. Such will may be probated
in the Philippines.
ART. 816. 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 this Code
prescribes.
ART. 817. A will made in the Philippines by a
citizen or subject of another country, which is
executed in accordance with the law of the
country of which he is a citizen or subject,
and which might be proved and allowed by
the law of his own country, shall have the
same effect as if executed according to the
laws of the Philippines.
 RULES OF FORMAL VALIDITY
1. FILIPINO ABROAD
• According to the law in the country in
which he may be
• And may be probated in the Philippines
2. ALIEN ABROAD
• Has effect in the Philippines if made
according to:
a) Law of place where he resides
b) Law of his own country
c) Philippine law
3. ALIEN IN THE PHILS.
• Valid in Philippines / As if executed
according to Philippine laws, if:
a) Made according to law of country
which he is a citizen or subject, and
b) May be proved and allowed by law of
his own country
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 In relation to Articles 15 and 17 of the NCC
Art. 15. Laws relating to family rights and
duties, or to the status, condition and legal
capacity of persons are binding upon citizens of
the Philippines, even though living abroad.
• NATIONALITY PRINCIPLE – Philippine law
follows Filipino citizens wherever they may be.
Art. 17. The forms and solemnities of contracts,
wills and other public instruments shall be governed by
the laws of the country in which they are executed.
When the acts referred to are executed before the
diplomatic or consulate officials of the Republic of the
Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in
their execution.
Prohibitive laws concerning persons, their acts or
property and those which have for their object public
order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated
or by determinations or conventions agreed upon in a
foreign country.
• LEX LOCI CELEBRATIONIS – contracts, wills
and other public instruments follow the formalities
of the law where they are executed.
 Every testator, whether Filipino or Alien, wherever he
may be, has five choices as to what law to follow for the
form of his will:
1. Law of his Citizenship – Arts 816-817 for Aliens,
Art15 for Filipinos
2. Law of place of Execution – Art17
3. Law of Domicile – Art816 for aliens abroad,
applying to aliens in the Philippines
and to Filipinos by analogy
4. Law of Residence - Art816 for aliens abroad,
applying to aliens in the Philippines
and to Filipinos by analogy
5. Philippine Law – Arts 816-817 for aliens, Art15 for
Filipinos by analogy
ART. 818. Two or more persons cannot make a
will jointly, or in the same instrument, either
for their reciprocal benefit or for the benefit of
a third person.
 JOINT WILL – one document which constitutes the wills
of two or more individuals.
 If there are separate documents, each serving as one
independent will even if written on the same sheet, they
are not joint wills prohibited by the article.
 Reason for Prohibition of Joint Wills
1. Limitation on modes of revocation
• One of the testators would not be able to
destroy the document without also revoking it
as the will of the other testator, or in any
even, as to the latter, the problem of
unauthorized destruction would come in
2. Diminution of testamentary secrecy
SUCCESSION REVIEWER
3. Danger of undue influence
4. Danger of one testator killing the other
• When a will is made jointly or in the same
instrument, the spouse who is more dominant
is liable to dictate the terms of the will for his
or her own benefit or for that of the third
persons whom he or she desires to favor.
• Where the will is not only joint but
reciprocal, either one of the spouses who
may happen to be unscrupulous, wicked,
faithless or desperate, knowing as he or she
does the terms of the will whereby the whole
property of the spouses both conjugal and
paraphernal goes to the survivor, may be
tempted to kill or dispose of the other.
 In Germany, joint wills are allowed but only between
spouses.
ART. 819. Wills, prohibited by the preceding
article, executed by Filipinos in a foreign
country shall not be valid in the Philippines,
even though authorized by the laws of the
country where they may have been executed.
 Outline on Joint Wills
1. By Filipinos in the Philippines – VOID Art818
2. Filipinos Abroad – VOID Art819, even if allowed
by law in place of execution. This is an
exception to the permissive provisions of
Arts17 and 815.
3. Aliens Abroad – VALID, Art816
4. Aliens in Philippines – Controverted, on one view
it is void because of public policy, another
view says it is valid because Art817
governs.
5. Filipino and Alien – Always VOID as to the
Filipino, but either #3 or #4 governs,
depending if he is abroad or in the Phils.
Cases for Arts. 810-819
Ajero v CA
- The holographic will of Annie San was submitted for
probate.
- Private respondent opposed the petition on the grounds that:
neither the testament’s body nor the signature therein was in
decedent’s handwriting; it contained alterations and
corrections which were not duly signed by decedent; and,
the will was procured by petitioners through improper
pressure and undue influence.
- The petition was also contested by Dr. Ajero with respect to
the disposition in the will of a house and lot. He claimed that
said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
- However, the trial court still admitted the decedent’s
holographic will to probate.
- The trial court held that since it must decide only the
question of the identity of the will, its due execution and the
testamentary capacity of the testatrix, it finds no reason for
the disallowance of the will for its failure to comply with the
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formalities prescribed by law nor for lack of testamentary
capacity of the testatrix.
- On appeal, the CA reversed said Decision holding that the
decedent did not comply with Articles 313 and 314 of the
NCC. It found that certain dispositions in the will were either
unsigned or undated, or signed by not dated. It also found
that the erasures, alterations and cancellations made had
not been authenticated by decedent.
- Hence, this appeal.
Whether the CA erred in holding that Articles 813 and 814 of
the NCC were not complies with.
- YES. The SC reversed the decision of CA.
- A reading of Article 813 shows that its requirement affects
the validity of the dispositions contained in the holographic
will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions
cannot be effectuated. Such failure, however, does not
render the whole testament void.
- Likewise, a holographic will can still be admitted to probate
notwithstanding non-compliance with the provisions of
Article 814.
- Unless the authenticated alterations, cancellations or
insertions were made on the date of the holographic will or
on testator’s signature, their presence does not invalidate
the will itself. The lack of authentication will only result in
disallowance of such changes.
- It is also proper to note that he requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Article 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article 810).
- This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the
NCC – and not those found in Articles 813 and 814 – are
essential to the probate of a holographic will.
- Section 9, Rule 76 of the Rules of Court and Article 839 of
the Civil Code enumerate the grounds for disallowance of
wills. These lists are exclusive; no other grounds can serve
to disallow a will.
- In a petition to admit a holographic will, the only issues to be
resolved are:
o whether the instrument submitted is,
indeed, the decedent’s last will and
testament;
o whether said will was executed in
accordance with the formalities prescribed
by law;
o whether the decedent had the necessary
testamentary capacity at the time the will
was executed; and
o whether the execution of the will and its
signing were the voluntary acts of the
decedent.
- The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud;
accordingly, laws on this subject should be interpreted to
attain these primordial ends.
- In the case of holographic wills, what assures authenticity is
the requirement that they be totally authographic or
handwritten by the testator himself. Failure to strictly observe
other formalities will no result in the disallowance of a
holographic will that is unquestionable handwritten by the
testator.
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SUCCESSION REVIEWER
Subsection 4 – Witnesses to Wills
ART. 820. Any person of sound mind and of the
age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may
be a witness to the execution of a will
mention in Article 805 of this Code.
ART. 821. The following are disqualified from
being witnesses to a will:
(1) Any person not domiciled in the
Philippines
(2) Those who have been convicted of
falsification of a document, perjury or
false testimony.
 SIX QUALIFICATIONS OF WITNESSES
1. Of Sound Mind
2. At Least 18 years of age
3. Not Blind, Deaf or Dumb
4. Able to read and write
5. Domiciled in the Philippines
6. Must not have been convicted of falsification of
a document, perjury or false testimony.
 As to applicability to wills executed abroad, testator may
resort to either executing a holographic will or following
the law of the place of execution, if no such witnesses
are readily available.
 Competence v. Credibility
 The competency of a person to be an instrumental
witness to a will is determined by the statute under
Arts 820-821, whereas his credibility depends on
the appreciation of his testimony and arises from
the belief and conclusion of the Court that said
witness is telling the truth.
CASES
Gonzales v. CA
- Santiago filed a petition with the CFI for the probate of the
will allegedly executed by the deceased Gabriel.
- Gonzales opposed the probate. Among other grounds, she
contends that the witnesses who attested to the due
execution of the will were not qualified witnesses.
- She argues that the requirement in Art. 806 of the NCC that
the witness must be credible is an absolute requirement
which must be complied with before a last will and testament
may be admitted.
- She claims that to be ca credible witness, there must be
evidence on record that the witness has good standing in
the community, or that he is honest and upright, or reputed
to be trustworthy and reliable.
- Gonzales further contends that “credible” is not synonymous
with “competent” because a witness may be competent
under Arts. 820 and 821 of the NCC, and still not credible as
required by Art. 805.
- She further asserts that “credible” in the NCC should receive
the same well-settled meaning it has under the
Naturalization Law.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
WON the witnesses who attested to Gabriel’s will are qualified
to be such.
- YES. It is enough that the qualifications in Art. 820 are
complied with, such that the soundness of his mind can be
shown by or deduced from his answers to questions
propounded to him. And hi age is proven as well as the fact
that he is not deaf and dumb and that he is able to read and
write, and that he is not disqualified under Art. 821.
- There is no mandatory requirement that the witness testify
initially or at any time during the trial as to his good standing
in the community, his reputation or trustworthiness and
reliability.
- His honesty and uprightness in order that his testimony may
be believed and accepted by the trial court.
- The contention that the term “credible” should be given the
same meaning as that in the Naturalization Law is
untenable. In naturalization proceedings, the character
witnesses must prove their good standing, reputation and
reliability.
- In probate proceedings, the instrumental witnesses are not
character witnesses for they merely attest the execution of a
will or testament and affirm the formalities attendant to said
execution.
- Art. 820, NCC: Any person of sound mind and of the age of
18 years or more, and not blind, deaf or dumb, and able to
read and write, may be a witness to the execution of a will
mentioned in Art. 805.
- Art. 821, NCC: The following are disqualified from being
witnesses to a will:
1. Any person not domiciled in the Philippines
2. Those who have been convicted of falsification of a
document, perjury or false testimony.
(Other assignments of error discussed in the case are factual.
SC did not reverse the findings of the CA.)
ART. 822. If the witnesses attesting the execution
of a will are competent at the time of
attesting, their becoming subsequently
incompetent shall not prevent the allowance
of the will.
 As in the case of testamentary capacity under Art801,
the time of the execution of the will is the only relevant
temporal criterion in the determination of the
competence of the witnesses.
ART. 823. If a person attests the execution of a
will, to whom or to whose spouse, or parent,
or child, a devise or legacy is given by such
will, such devise or legacy shall, so far only
as concerns such person, or spouse, or
parent, or child of such person, or any one
claiming under such person or spouse, or
parent, or child, be void, unless there are
three other competent witnesses to such will.
However, such person so attesting shall be
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SUCCESSION REVIEWER
admitted as a witness as if such devise or
legacy had not been made or given.
 Article is misplaced here because it talks about
CAPACITY TO SUCCEED and not capacity to be a
witness.
 Article 823 lays down a disqualification of a witness to
succeed to a legacy or devise when there are only 3
witnesses. Competence of the person as a witness is
NOT AFFECTED.
 Assuming all other requisites for formal validity are
met, the will is perfectly valid but the witness [or
relatives specified in the article] cannot inherit.
 Article also applies to HEIRS. The intent of the law is to
cover all testamentary institutions.
 Disqualification applies only to the testamentary
disposition made in favor of the witness or the specified
relatives. If the party is also entitled to a legitime or an
intestate share, that portion is not affected by the
party’s witnessing the will.
 Question – Supposing there are 4 witnesses, each a
recipient of a testamentary disposition, are the
dispositions to them valid or void?
• Arguable
• May say that dispositions are VALID
because the law only requires that there be 3
other competent witnesses to such will for the
disposition to be valid. For the witnesses to be
competent, they need only meet the
qualifications in Art820 and have none of the
disqualifications in Art821.
• May also say that dispositions are
INVALID because the intent of the law is to
avoid witnesses from attesting to the will based
on the dispositions as a consideration for such
act. If all of the witnesses are recipients of
testamentary dispositions, then there is greater
chance that they are all witnessing because a
consideration has been given to them.
ART. 824. A mere charge on the estate of the
testator for the payment of debts due at the
time of the testator’s death does not prevent
his creditors from being competent witnesses
to his will.
 Because the debt or charge is not a testamentary
disposition.
Subsection 5 – Codicils and Incorporation
By Reference
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
ART. 825. A codicil is a supplement or addition to
a will, made after the execution of a will and
annexed to be taken as a part thereof, by
which disposition made in the original will is
explained, added to, or altered.
ART. 826. In order that a codicil may be effective,
it shall be executed as in the case of a will.
 Codicil v. Subsequent Will
 Codicil – explains, adds to or alters a disposition in
a prior will.
 Subsequent will – makes independent and distinct
dispositions.
 But the distinction is purely academic because
Art826 requires that the codicil be in the form of a
will anyway.
 Must the Codicil conform to the form of the will to which
it refers? NO. A holographic will can have an attested
codicil and vice versa. Both may also be of the same
kind.
ART. 827. If a will, executed as required by this
Code, incorporates into itself by reference
any document or paper, such document or
paper shall not be considered a part of the
will unless the following requisites are
present:
(1) The document or paper referred to in
the will must be in existence at the
time of the execution of the will;
(2) The will must clearly describe and
identify the same, stating among other
things the number of pages thereof;
(3) It must be identified by clear and
satisfactory proof as the document or
paper referred to therein; and
(4) It must be signed by the testator and
the witnesses on each and every
page, except in case of voluminous
books of account or inventories.
 Article only refers to documents such as:
1. Inventories
2. Books of Accounts
3. Documents of Title
4. Papers of Similar Nature
 DOES NOT include documents that make testamentary
dispositions, or else the formal requirements of a will
would be circumvented.
 Can holographic wills incorporate documents by
reference?
 NO. Par4 of Art827 requires signatures of the
testator and the witnesses on every page of the
incorporated document [except voluminous
annexes]. It seems therefore that only attested wills
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SUCCESSION REVIEWER
can incorporate documents by reference, since
only attested wills are witnessed.
 Unless testator executes a holographic will and
superfluously has it witnessed.
Subsection 6 – Revocation of Wills
And Testamentary Dispositions
ART. 828. A will may be revoked by the testator at
any time before his death. Any waiver or
restriction of this right is void.
 A will is essentially REVOCABLE or AMBULATORY.
 This characteristic cannot be waived even by the
testator. There is no such thing as an irrevocable will.
 This characteristic is consistent with the principle in
Art777 that successional rights vest only upon death.
ART. 829. A revocation done outside the
Philippines, by a person who does not have
his domicile in this country, is valid when it is
done according to the law of the place where
the will was made, or according to the law of
the place in which the testator had his
domicile at the time; and if the revocation
takes place in this country, when it is in
accordance with the provisions of this Code.
 RULES FOR REVOCATION
 Revocation made in the Philippines.
• Philippine Law
 Revocation made Outside Philippines.
1. Testator not domiciled in Phils.
• Law of place where the WILL was made
• Law of place where the testator was
domiciled at time of revocation.
2. Testator domiciled in Phils. [Art829]
• Philippine Law – consistent with
domiciliary principle followed by this article
• Law of place of Revocation – principle of
lex loci celebrationis
• Law of place where the WILL was made –
by analogy with rules on revocation where
testator is a non-Philippine domiciliary.
 Curious that the law departs from the nationality theory
and adopts the domiciliary theory.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
ART. 830. No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills; or
(3) By burning, tearing, canceling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by
some other person in his presence, and
by his express direction. If burned, torn,
cancelled, or obliterated by some other
person, without the express direction of
the testator, the will may still be
established, and the estate distributed in
accordance therewith, if its contents, and
due execution, and the fact of its
unauthorized destruction, cancellation, or
obliteration are established according to
the Rules of Court.
 MODES OF REVOKING A WILL UNDER
PHILIPPINE LAW
1. BY OPERATION OF LAW
• May be total or partial
• Examples of revocation by operation of
law
a) Preterition – Art854
b) Legal Separation – Art63 par4 FC
c) Unworthiness to succeed – Art1032
d) Transformation, alienation or loss of
the object devised or bequeathed –
Art957
e) Judicial demand of a credit given as a
legacy - Art936
2. BY A SUBSEQUENT WILL OR CODICIL
• Requisites for valid revocation by a
subsequent instrument –
a) Subsequent instrument must comply
with formal requirements of a will
b) Testator must possess testamentary
capacity
c) Subsequent instrument must either
contain an express revocatory clause
or be incompatible with the prior will
d) Subsequent instrument must be
probated to take effect
• Revocation by subsequent will may be
Total or Partial, Express or Implied
a) Total – whole prior instrument is
revoked
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SUCCESSION REVIEWER
b) Partial – only certain provisions or
dispositions of the prior instrument is
revoked
c) Express – revocation of prior
instrument is stated in the
subsequent instrument
d) Implied – incompatibility between
provisions of prior and subsequent
instruments.
3. BY PHYSICAL DESTRUCTION
• Four ways to destroy –
a) Burning
b) Tearing
c) Cancelling
d) Obliterating
• Physical destruction may be done by the
testator personally or by another person
acting in his presence and by his express
direction.
 Unauthorized if without express
direction of testator. But what if with
express direction but not in his
presence?
 Arguable. May say that it is authorized
and therefore the destroyed instrument
is revoked because of the intent and
consent of the testator to revoke and
destroy, and that the law does not
provide that without the testator’s
presence, destruction will become
unauthorized.
 On the other hand, it may be argued
that the testator’s presence is required
because at any time during the actual
burning, destroying, etc. he may put a
stop to the destruction if he changes
his mind, and that is precisely why his
presence is required?
• Effect of unauthorized destruction – Will
may still be proved as lost or destroyed
[Art830 NCC and Rule 76 RoC]
 However, this is possible only if the will
is attested; if the will is holographic, it
cannot be probated if lost, even if the
loss or destruction was unauthorized,
unless a copy survives.
• Elements of a Valid Revocation by
Physical Destruction
a) CORPUS – physical destruction itself;
there must be evidence of physical
destruction
b) ANIMUS –
 Capacity and intent to revoke
 Testator must have completed
everything he intended to do
• Both corpus an animus must concur.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
• Loss or unavailability of a will may, under
certain circumstances, give rise to the
presumption that it had been revoked by
physical destruction
 Where a will which cannot be found is
shown to have been in the possession
of the testator when last seen, the
presumption is, in the absence of other
competent evidence, that the same
was cancelled or destroyed.
 Same presumption arises where it is
shown that testator had ready access
to the will and it cannot be found after
his death.
 But such presumptions may be
overcome by proof that the will was not
destroyed by the testator with intent to
revoke it.
CASES
Testate Estate of Adriana Maloto v. CA
- The nieces and nephews of Adriana Maloto, including
Constancio Maloto and Aldina Casiano, thought that the
latter died intestate.
- Thus they filed an intestate proceeding for the settlement of
the decedent’s estate.
- In the course of the proceeding, the said relatives executed
an extrajudicial petition of the estate, where they adjudicated
among themselves the properties in the ratio of ¼ each.
- Three years after, a document was delivered to the same
court, which was believed to be the last will and testament of
Adriana Maloto.
- In the said will, Aldina and Constancio have shares that are
bigger, different and more valuable than the one obtained by
them in the extrajudicial partition. There were also other
legatees named in the will.
- Thus, Casiano and Aldina filed a petition for the allowance of
the will in the Special Proceeding initially filed by them.
- The CFI denied the motion to reopen the proceedings on the
ground that it has been filed out of time.
Whether or Not the CFI correctly dismissed the petition.
- SC held in the affirmative.
- The probate court has no jurisdiction to entertain the petition
for the probate of the alleged will of Adriana Maloto in the
prior Intestate Proceeding.
- First, the motion to reopen the proceedings has been filed
out of time.
- Second, it is not proper to make a finding in an intestate
estate proceeding that the discovered will has been revoked.
- The more appropriate remedy for them is to initiate a
separate proceeding for the probate of the alleged will.
- In this view, the order in the prior special proceeding is not a
bar for the filing of a petition for the probate of the will of
Adriana Maloto.
- It is not proper to make a finding in an intestate proceeding
that a discovered will has been revoked. A separate petition
for probate of the alleged will should be ordered filed.
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SUCCESSION REVIEWER
ART. 831. Subsequent wills which do not revoke
the previous ones in an express manner,
annul only such dispositions in the prior wills
as are inconsistent with or contrary to those
contained in the latter wills.
 Revocation of a will by a subsequent will or codicil may
be express [through a revocatory clause] or implied
[through incompatibility].
 In the old Civil Code, mere fact of a subsequent will,
provided that it is valid, revoked the prior one, except
only if the testator provides in the posterior will that the
prior will was to subsists in whole or in part.
 The present rule provides that the execution of a
subsequent will does not ipso facto revoke a prior one.
ART. 832. A revocation made in a subsequent will
shall take effect, even if the new will should
become inoperative by reason of the
incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation.
 Efficacy of the revocatory clause does not depend on
the testamentary disposition of the revoking will,
UNLESS the testator so provides. Revocation is
generally speaking, an absolute provision, independent
of the acceptance or capacity of the new heirs.
 An EXCEPTION is where the testator provides in the
subsequent will that the revocation of the prior one is
dependent on the Capacity or Acceptance of the heirs,
devisees or legatees instituted in the subsequent will.
• DEPENDENT RELATIVE REVOCATION
 DEPENDENT RELATIVE REVOCATION
 Where the act of destruction is connected with the
making of another will as fairly to raise the
inference that the testator meant the revocation of
the old to depend upon the efficacy of the new
disposition intended to be substituted, the
revocation will be conditional and dependent upon
the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and
the original will remains in full force.
 This is the doctrine of dependent relative
revocation. The failure of the new testamentary
disposition, upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a
suspensive condition, and hence prevents the
revocation of the original will. But a mere intent to
make at some time a will in place of that destroyed
will not render the destruction conditional. It must
appear that the revocation is dependent upon the
valid execution of a new will. [Molo v. Molo]
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
 It must be remembered that dependent relative
revocation applies only if it appears that the testator
intended his at of revocation to be conditioned on the
making of a new will or on its validity or efficacy.
 In Molo v. Molo, the Samson v. Naval doctrine was
cited, providing that “A subsequent will, containing a
clause revoking a previous will, having been disallowed,
for the reason that it was not executed in conformity
with the provisions of the Code of Civil procedure as to
the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory
clause is void.”
 Question – supposing the institution of heirs, legatees
or devisees in the subsequent will is subject to a
suspensive condition, is the revocation of the prior will
absolute or conditional?
 Depends on the testator’s intent.
 If the subsequent will contains a revocatory clause
which is absolute or unconditional, the revocation
will be absolute regardless of the happening or
non-happening of the suspensive condition.
 But if the testator states in the subsequent will that
the revocation of the prior will is subject to the
occurrence of the suspensive condition, or if the
will does not contain a revocatory clause, the
revocation will depend on whether the condition
happens or not.
• If the suspensive condition does not
occur, the institution is deemed never to
have been made and the prior institution
will be given effect. [i.e. no revocation of
prior will]
• This is in accord with the juridical nature
of suspensive conditions, and is an
instance of dependent relative revocation.
 Is the rule on dependent relative revocation applicable if
the revocation of the will is by physical destruction?
 YES. If testator executes a subsequent will
revoking the prior will but conditioned on the
validity of the subsequent will, then if the
subsequent will is declared invalid, the prior will
subsists.
 In Molo v. Molo, in an obiter, SC held that the
physical destruction of the will DID NOT revoke it,
based on the inference made by the court in that
case, that the testator meant the revocation to
depend on the validity of a new will.
 But apart from the fact that the statement is obiter
because the facts did not clearly show that the will
had been destroyed, it is arguable whether the
prior will should be deemed to subsist despite its
physical destruction. Can it not be argued that the
act of the testator in destroying the will in fact
confirmed his intent to revoke it?
 In the case of Diaz v. De Leon, the testator
executed a prior will but destroyed it and executed
another will revoking the former. However, the
second will was found to be not executed with all
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the necessary requisites to constitute sufficient
revocation. The court then held that the intention of
revoking the will was manifest from the fact that the
testator was anxious to withdraw or change the
provisions he had made in his first will. Therefore,
the court concluded that original will presented
having been destroyed with animo revocandi, the
original will and last testament cannot be probated
and was effectively revoked.
 In Molo, revocation of the prior will was not allowed
because the court inferred that the testator meant
revocation to depend on the validity of the new will,
so in that case the rule on dependent relative
revocation was applied.
 However, in De Leon, court held that the testator’s
intent to revoke the prior will was not dependent on
the validity of the subsequent will so even if the
second will was void and insufficient as revocation,
the prior will was still revoked because such
revocation was not dependent on the validity of the
second will [?!!]
ART. 833. A revocation of a will based on a false
cause or an illegal cause is null and void.
 Wills are revocable ad nutum or at the testator’s
pleasure. The testator does not need to have a reason
to revoke the will.
 However, precisely because the law respects the
testator’s true intent, this article sets aside a revocation
that does not reflect such intent.
 REQUISITES FOR A FALSE / ILLEGAL CAUSE TO
RENDER REVOCATION VOID –
1. CAUSE MUST BE CONCRETE, FACTUAL
AND NOT PURELY SUBJECTIVE
• If a testator revoked on the stated ground
that the heir was Ilocano and all Ilocanos are
bad, it would just be prejudice and the
revocation is valid because it is based on a
subjective cause.
2. IT MUST BE FALSE
3. THE TESTATOR MUST NOT KNOW OF ITS
FALSITY
4. IT MUST APPEAR FROM THE WILL THAT
THE TESTATOR IS REVOKING BECAUSE OF
THE CAUSE WHICH IS FALSE.
 If the revocation is by physical destruction, and the
revoked will is holographic, then though the revocation
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006-2007
be void, probate will not be possible, UNLESS a copy of
the holographic will survives.
 The rule regarding nullity of revocation for an illegal
cause limits the freedom of the testator to revoke based
on an illegal cause, but this is due to public policy
considerations.
 It must be noted that the illegal cause should be stated
in the will as the cause of the revocation.
ART. 834. The recognition of an illegitimate child
does not lose its legal effect, even though the
will wherein it was made should be revoked.
 The part of the will which recognizes an illegitimate
child is NOT revocable because recognition is an
irrevocable act. Therefore, even if the will is revoked,
the recognition remains effective.
 Under the Family Code, admission of illegitimate
filiation in a will would constitute proof of illegitimate
filiation. According to Article 175 of the Family Code –
Art175. Illegitimate children may establish
their illegitimate filiation in the same way and on
the same evidence as legitimate children.
The action must be brought within the same
period specified in Art173, except when the
action is based on the second paragraph of
Art172, in which case the action may be brought
during the lifetime of the alleged parent.
 Basically, the principle laid down in Art834 remains
unaltered regarding these admissions contained in
wills.
Subsection 7 – Republication and
Revival of Wills
ART. 835. The testator cannot republish, without
reproducing in a subsequent will, the
dispositions contained in a previous one
which is void as to its form.
ART. 836. The execution of a codicil referring to a
previous will has the effect of republishing
the will as modified by the codicil.
 If the testator wishes to republish a will that is void as to
form, the only way to republish it is to execute a
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subsequent will and reproduce [copy out] the
dispositions of the original will. Mere reference to the
prior will in the subsequent will is not enough.
 A will is void as to form if it does not comply with the
requirements of Arts804-818; 810-814; 818-819.
RE-CAP OF FORMAL REQUIREMENTS
OF A WILL
1. ATTESTED/ORDINARY WILL
a. Must be in writing
b. Executed in a language or dialect known to testator
c. Subscribed by the testator or his agent in his
presence and by his express direction at the end
thereof, in the presence of the witnesses
d. Attested and subscribed by at least 3
credible witnesses in presence of the testator & of
one another
e. Testator, or his agent, must sign every page,
except the last, on the left margin in the presence
of the witnesses
f. The witnesses must sign every page, except the
last, on the left margin in the presence of the
testator and of one another.
g. All pages numbered correlatively in letters on the
upper part of each page.
h. Attestation clause, stating:
a) Number of pages of the will
b) Fact that the testator or his agent
under his express direction signed the will and
every page thereof, in the presence of the
witnesses
c) Fact that the witnesses witnessed
and signed the will and every page thereof in
the presence of the testator and of one
another.
i. Acknowledgement before a notary public by the
testator and the witnesses.
j. Handicapped Testator
a) Deaf or deaf-mute – personally read the will if
able to do so, otherwise designate 2 persons
to read and communicate it to him.
b) Blind – read to him twice, once by a
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RE-CAP OF FORMAL REQUIREMENTS
OF A WILL
k. Defects and imperfections in form of attestation and
language used shall not make the will invalid if
there is substantial compliance with requirements
of Art805.
l. Law to be followed
a. Filipino abroad
b. Alien abroad
c. Alien in the Philippines
m. Prohibition on joint wills, especially by Filipinos
even if executed in foreign country allowing joint
wills.
n. Witnesses must possess all the qualifications in
Art820 and none of the disqualifications in Art821.
2. HOLOGRAPHIC WILL
a. Must be entirely written
b. Executed in a language or dialect known to testator
c. Dated by the testator
d. Signed by the hand of the testator himself
e. Witnesses required
a) Knows the handwriting and signature of the
testator
b) Explicitly declares that the will and the
signature are in the handwriting of the testator
f. Dispositions below testator’s signature must also be
dated and signed.
g. When several additional dispositions are signed but
not dated, the last disposition must be signed and
dated to validate the dispositions preceding it.
h. Any insertion, cancellation, erasure or alteration must
be authenticated by the testator’s full signature,
otherwise it shall be deemed as not made.
i. Prohibition on joint wills, especially by Filipinos even if
executed in a foreign country where joint wills are
allowed.
 If the testator wishes to Republish a will that is either:
1. VOID for a reason other than a formal defect,
or
2. Previously REVOKED
 The only thing necessary to republish it is for the
testator to execute a subsequent will or codicil
referring to the previous will. There is no need to
reproduce the provisions of the prior will in the
subsequent instrument.
 Why the difference on the rules between nullity as to
form and nullity based on other grounds? Prof. Balane
says because Art835 is from Argentine Law whole
Art836 is from California Law. Go figure.
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SUCCESSION REVIEWER
ART. 837. If after making a will, the testator
makes a second will expressly revoking the
first, the revocation of the second will does
not derive the first will, which can be revived
only by another will or codicil.
 Illustration
In 1985, X executed will 1
In 1987, X executed will 2 and expressly revoked
will 1
In 1990, X executed will 3, revoking will 2
- When will 3 revoked will 2, it did not revive will 1.
 This article is based on the theory of INSTANT
REVOCATION
 That the revocatory effect of the 2nd will is
immediate.
 However, such theory is inconsistent with the
principle that wills take effect mortis causa.
 Furthermore, to be effective for the purpose of
revoking the first will, the second will must be
probated. But it has already been revoked by the
third will. A revoked will now has to be submitted to
probate?
 Article applies only when the revocation of the first will
by the second will is EXPRESS. If the revocation by the
second will is implied due to incompatible provisions,
the article will not apply and the effect will be that the
first will is revived.
 However, when will 3 is itself inconsistent with will
1, there is still revocation.
 Also keep in mind Article 831 – Implied
Revocations only annul such dispositions in the
prior wills as are inconsistent with or contrary to
those contained in the latter wills.
 EXCEPTION – when the second will is holographic and
it is revoked by physical destruction, because then the
possibility of its probate is foreclosed, unless of course
a copy survives.
Cases for Arts. 828-837
Molo v. Molo
- Mariano Molo died and was survived by his herein petitioner
wife and his herein oppositors nieces and nephews. He left
two wills one dated 1918 and the other 1939. The 2 nd will
contains a clause which expressly revokes the former will.
- Upon death, his wife filed a petition for probate of the 1939
will which was later on admitted. However, oppositors
eventually filed a petition which resulted to the denial of
probate of the said will. Petitioner wife then filed a petition
for probate of the 1918 will, which was likewise denied by
the oppositors in this case.
Whether or not petitioner voluntarily and deliberately frustrated
the probate of the 1939 will.
- SC held that she did not because if it was indeed her
intention, she could have accomplished her desire by merely
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suppressing the will or tearing or destroying it, and then take
steps in leading to the probate of the 1918 will.
- Had the oppositors in this case not filed an opposition and
had limited their objection to the intrinsic validity of the will,
their plan to defeat the will and secure the intestacy of the
deceased would have been accomplished.
- If the said will was denied probate, it is due to oppositor’s
fault and is unfair to impute bad faith to petitioner simply
because she exerted effort to protect her own interest and
prevent the intestacy of the deceased.
WON, notwithstanding the disallowance of the 1939 will, the
revocatory clause is valid and still nullifies the 1918 will.
- SC held that the clause is likewise void because:
- The Court held in Samson v. Naval that it cannot produce
the effect of annulling the previous will since said revocatory
clause is void.
- If it was really the intention of the deceased to revoke the
first will, with the assumption that he in fact destroyed the
original copy of the 1918 will since it cannot be found at
present, he should also destroyed the duplicate copy of the
said will which he had given to his wife. But he did not do so.
Hence, it is possible that because of the long lapse of 21 yrs
since the 1st will was executed, the original will had been
misplaced or lost and forgetting there was a copy, he
deemed it wise to execute another.
- Granting that he did destroy the 1st will, the 1918 will can still
be admitted under the principle of “dependent relative
revocation,” which is predicated on the theory that the
testator did not intend to die intestate.
- The doctrine of dependent relative revocation is established
where the act of destruction is connected with the making of
another will so as fairly to raise the inference that the
testator meant the revocation of the old to depend upon the
efficacy of the new disposition intended to be substituted,
the revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason, the
new will intended to be made as a substitute is inoperative,
the revocation fails and the original will remains in full force.
Gago v. Mamuyac
- On 27 July 1918, Miguel Mamuyac of Agoo, La Union
executed a last will and testament.
- After his death, Francisco Gago asked the court for the
probate of the will but was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciano Bauzon, and Catalina
Mamuyac.
- After the probate of the said will was denied, another will
alleged to have been executed on 16 April 1919 was
presented for probate to which the same oppositors resisted.
- The oppositors argued that such will was not the original and
was a mere copy; that the same had been cancelled and
revoked by the testator; and that the same was not the last
will and testament of Mamuyac.
- The probate of the second will was likewise turned down for
having been cancelled and revoked.
- According to witnesses, the original of the said will was in
the possession of Mamuyac before his death who revoked
the same.
WON Miguel Mamuyac’s last will has indeed been cancelled
and revoked and therefore not admissible to probate.
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SUCCESSION REVIEWER
- YES. There is positive proof, not denied, that the will in
question had been cancelled in 1920.
- The law does not require any evidence of the revocation or
cancellation of a will to prove the same.
- The fact that such cancellation or revocation has taken place
must either remain unproved or be inferred from evidence
showing that after due search the original will cannot be
found. If it be shown that the will was in the possession of
the testator when last seen, the presumption is, in the
absence of other competent evidence, that the same was
cancelled or destroyed.
- The same presumption governs when the testator had ready
access to the will and it cannot be found after his death.
- No presumption of destruction by any other person without
the knowledge or authority of the testator.
- The force of presumption is never conclusive but may be
overcome by proof that the will was not destroyed by the
testator with intent to revoke it.
- Copies of wills should be admitted by courts with great
caution in view of the difficulty of finding witnesses and other
evidence.
- The duplicate may be admitted to probate if it was in the
same manner executed with all formalities and requirements
of the law.
- The fact that such cancellation or revocation has taken place
must either remain unproved or be inferred from evidence
showing that after due search the original will cannot be
found.
- If it be shown that the will was in the possession of the
testator when last seen, the presumption is, in the absence
of other competent evidence, that the same was cancelled
or destroyed.
- The same presumption governs when the testator had ready
access to the will and it cannot be found after his death.
- No presumption of destruction by any other person without
the knowledge or authority of the testator.
- In a proceeding to probate a will, the burden of proof is upon
the proponent to establish not only the execution of the will
but also its existence.
Diaz v. De Leon
- In this case, Diaz, the petitioner, denies that the will
executed by the decedent Jesus de Leon.
- However, the contestant says otherwise and alleging that
the testator revoked his will by destroying it, and by
executing another will expressly revoking the former.
- Hence, this appeal.
WON, the will executed by the Jesus de Leon, now deceased,
was revoked by him.
- The court finds that the will executed by the deceased is not
clothed with all the necessary requisites to constitute a
sufficient revocation.
- But according to the statute governing the subject in this
jurisdiction, the destruction of a will with animo revocandi
constitutes, in itself, a sufficient revocation.
- From the evidence presented, the decedent asked that the
same be returned to him.
- The instrument was returned to the testator who ordered his
servant to tear the document. This was done in his presence
and before a nurse who testified to this effect.
- The intention of revoking the will is manifest from the
established fact that the testator was anxious to withdraw or
change the provisions he has made in his first will.
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- The original will herein presented for probate having been
destroyed with animo revocandi cannot now be probated as
the will and last testament of Jesus de Leon.
- Judgment affirmed.
- The destruction of a will with animo revocandi constitutes, in
itself, a sufficient revocation.
Subsection 8 – Allowance and
Disallowance of Wills
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 testator’s
death shall govern.
The Supreme Court shall formulate such
additional Rules of Court as may be
necessary for the allowance of wills on
petition 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.
 Probate of a will is MANDATORY.
 TWO KINDS OF PROBATE
1. POST MORTEM – after the testator’s death
2. ANTE MORTEM – during his lifetime, features:
• Easier for the courts to determine mental
condition of a testator
• Fraud, intimidation and undue influence
are minimized
• Easier correction of formal defects in the
will
• Once a will is probated ante mortem, the
only questions that may remain for the courts
to decide after the testator’s death will refer to
the intrinsic validity of the testamentary
dispositions.
 Rules on Probate for both post and ante mortem are
found in Rule 76 of the Rules of Court.
 Finality of a Probate Decree
 Once a decree of probate becomes final in
accordance with the rules of procedure, it is res
judicata.
 Scope of a Final Decree of Probate
 A final decree of probate is conclusive as to the
due execution of the will, i.e. as to the will’s
extrinsic and formal validity only.
SUCCESSION REVIEWER
 Gallanosa v. Arcangel enumerates what are
covered by the term Formal Validity and
therefore conclusively settled by a final decree
of probate –
a) That the testator was of sound and
disposing mind
b) That his consent was not vitiated
c) That the will was signed by the
required number of witnesses, and
 That all the formal requirements of the
law have been complied with.
d) That the will is genuine.
 Another way of defining the scope of a final decree
of probate is to refer to art839. Any action based
on any of the grounds for disallowance of a will
enumerated in Article 839 can no longer be
pursued once there is a final decree of probate.
 GENERAL RULE – A decree of probate, therefore does
not concern itself with the question of INTRINSIC
validity and the probate court should not pass upon that
issue.
 EXCEPTION - When the probate of a will might become
an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should meet
the issue.
 On the authority of Nepomuceno v. Ca, a probate court
may pass upon the issue of intrinsic validity if on the
face of the will, its intrinsic nullity is patent.
CASE
Guevara v. Guevara
- Ernesto M. Guevara and Rosario Guevara, legitimate son
and natural daughter, respectively, of the deceased
Victorino L. Guevara, are litigating here over their
inheritance from the latter.
- Victorino made a will distributing his estate to his children
and granting devises to certain individuals. He also set aside
100 hectares of land either to be disposed of by him during
his lifetime or for the payment of all his pending debts and
expenses up to the time of his death.
- Victorino died. His last will and testament, however, was
never presented to the court for probate, nor has any
administration proceeding ever been instituted for the
settlement of his estate.
- Rosario Guevara, who appears to have had her father's last
will and testament in her custody, did nothing judicially to
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invoke the testamentary dispositions made therein in her
favor, whereby the testator acknowledged her as his natural
daughter and, aside from certain legacies and bequests,
devised to her a portion of the large parcel of land described
in the will.
- But a little over four years after the testator's demise, she
commenced the present action against Ernesto;
- It was only during the trial of this case that she presented the
will to the court, not for the purpose of having it probated but
only to prove that the deceased Victorino had acknowledged
her as his natural daughter.
- Upon that proof of acknowledgment she claimed her share
of the inheritance from him, but on the theory or assumption
that he died intestate, because the will had not been
probated, for which reason, she asserted, the betterment
therein made by the testator in favor of his legitimate son
Ernesto should be disregarded.
Whether the procedure adopted by Rosario Guevara is legal?
- If the decedent left a will and no debts and the heirs and
legatees desire to make an extrajudicial partition of the
estate, they must first present that will to the court for
probate and divide the estate in accordance with the will.
- They may not disregard the provisions of the will unless
those provisions are contrary to law.
- Neither may they do away with the presentation of the will to
the court for probate, because such suppression of the will is
contrary to law and public policy.
- The law enjoins the probate of the will and public policy
requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory, as
is attempted to be done in the instant case.
- Absent legatees and devisees, or such of them as may have
no knowledge of the will, could be cheated of their
inheritance thru the collusion of some of the heirs who might
agree to the partition of the estate among themselves to the
exclusion of others.
- Even if the decedent left no debts and nobody raises any
question as to the authenticity and due execution of the will,
none of the heirs may sue for the partition of the estate in
accordance with that will without first securing its allowance
or probate of the court:
- The presentation of a will to the court for probate is
mandatory and its allowance by the court is essential and
indispensable to its efficacy.
- In fact, to ensure the presentation of the will to the court for
probate the law punishes a person who neglects his duty to
present it to the court (w/ a fine not exceeding P2000) and if
he should persist in not presenting it, he may be committed
to prison and kept there until he delivers the will.
- The law expressly provides that "no will shall pass either real
or personal estate unless it is proved and allowed in the
proper court";
- The probate of a will, which is a proceeding in rem, cannot
be dispensed with and substituted by any other
proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the
testator's right to dispose of his property by will in
accordance with law and to protect the rights of the heirs
and legatees under the will thru the means provided by law,
among which are the publication and the personal notices to
each and all of said heirs and legatees.
De la Cerna v. Potot
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- Spouses Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will ad testament where they willed that
their 2 parcels of land be given to Manuela Rebaca, their
niece and that while each of them are living, he/she will
continue to enjoy the fruits of the lands mentioned.
- Bernabe died. Gervasia submitted the will for probated. By
order of Oct. 31, 1939, the Court admitted for probate the
said will but only for the part of Bernabe.
- When Gervasia died, another petition for probate was
instituted by Manuela, but because she and her attorney
failed to appear in court, the petition was dismissed.
- When the same was heard, the CFI declared the will void for
being executed contrary to the prohibition on joint wills. On
appeal, the order was reversed.
Whether or not the will may be probated
- 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.
Gallanosa v. Arcangel
- Florentino Hitosis was a childless widower and was survived
by his brother Lito.
- In his will, Florentino bequeathed his ½ share in the conjugal
estate to his second wife, Tecla, and, should Tecla
predecease him, as was the case, his ½ share would be
assigned to spouses Gallanosa. Pedro Gallanosa was
Tecla’s son by her first marriage who grew up under the
care of Florentino. His other properties were bequeathed to
his protégé Adolfo Fortajada.
- Upon his death, a petition for the probate of his will was wile.
Opposition was registered by Florentino’s brother, nephews
and nieces.
- After a hearing, where the oppositors did not present any
evidence, the Judge admitted the will to probate.
- The testator’s legal heirs did not appeal from the decree of
probate and from the order of partition and distribution.
- Later, the legal heirs filed a case for recovery of 61 parcels
of land against Pedro alleging that they had been in
continuous possession of those lands and praying that they
be declared owners thereof.
- Pedro moved for a dismissal which was later granted by the
Judge on the ground of res judicata.
- The legal heirs did not appeal from the order of dismissal.
- 15 years after the dismissal of the first civil case and 28
years after the probate of the will, the legal heirs filed a case
for “annulment of the will” alleging fraud and deceit.
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- The court dismissed said action. However, the court set
aside the dismissal after the heirs filed a motion for
reconsideration. Hence, this appeal.
Whether the legal heirs have a cause of action for the
“annulment” of the will of Florentino and for the recovery of the
61 parcels of land adjudicated under that will to the petitioners.
- NO. The SC held that the lower court committed a grave
abuse of discretion in setting aside its order of dismissal and
ignoring the testamentary case and the first civil case which
is the same as the instant case. It is evident that second civil
case is barred by res judicata and by prescription.
- The decree of probate is conclusive as to the due
execution or formal validity of the will. That means that
the testator was of sound and disposing mind at the time he
executed the will and was not acting under duress, menace,
fraud, or undue influence; that the will was signed by him in
the presence of the required number of witnesses, and that
the will is genuine.
- Accordingly, these facts cannot again be questioned in a
subsequent proceeding, not even in a criminal action for the
forgery of the will.
- After the finality of the allowance of a will, the issue as to the
voluntariness of its execution cannot be raised anymore.
- The SC also held that the decree of adjudication, having
rendered in a proceeding in rem, is binding upon the whole
world. Moreover, the dismissal of the first civil case, which is
a judgment in personam, was an adjudication on the merits.
Thus. It constitutes a bar by former judgment under the
Rules of Court.
- The SC also held that the lower court erred in saying that the
action for the recovery of the lands had not prescribed. The
SC ruled that the Art. 1410 of NCC (the action or defense for
the declaration of the inexistence of a contract does not
prescribe) cannot apply to last wills and testaments.
- The Rules of Court does not sanction an action for
“annulment” of a will.
- A final decree of probate is conclusive as to the due
execution of the will.
- A decree of adjudication in a testate proceeding is binding
on the whole world.
- After the period for seeking relief from a final order or
judgment under Rule 38 of the Rules of court has expired, a
final judgment or order can be set aside only on the grounds
of: (a) lack of jurisdiction or lack of due process of law or (b)
that the judgment was obtained by means of extrinsic or
collateral fraud. In the latter case, the period for annulling
the judgment is four (4) years from the discovery of fraud.
- The Civil Law rule that an action for declaration of
inexistence of a contract does not prescribe cannot be
applied to last wills and testaments.
Nepomuceno v. CA
- Martin Jugo died in 1974, leaving a last Will and Testament
signed by him and 3 other witnesses, in accordance with the
formalities prescribed by the law.
- Martin named and appointed Sofia Nepomuceno as his sole
and only executor of his estate.
- The will specifically stated that Jugo was legally married to
Rufina Gomez, by whom he has 2 children. But since 1962,
they have been estranged and Martin had been living with
SUCCESSION REVIEWER
Sofia as husband and wife. Martin and Sofia were married in
Tarlac before the Justice of the Peace.
- Martin devised to his forced heirs (Rufina and their 2
children) his entire estate, and the free portion thereof to
Sofia.
- Sofia filed a petition for the probate of the last will and
testament of Martin.
- Rufina and her children opposed.
- CFI denied probate on the ground that Martin admitted in his
will that he had been unlawfully cohabiting with Sofia.
- CA reversed and admitted the will to probate, but declared
that the devise in favor of Sofia is void.
- Sofia contends that the validity of the testamentary provision
in her favor should be assailed in another proceeding and
that the only purpose of the probate is to conclusively
establish that will was executed with the formalities required
by law and that the testator has the mental capacity to
execute the same.
WON the probate court validly passed upon the intrinsic
validity of the testamentary provision in favor of Sofia.
- YES.
- The general rule is that in probate proceedings, the court’s
area of inquiry is limited to an examination and resolution of
the extrinsic validity of the will.
- Such rule is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to pass
upon certain provisions of the will.
- A will no matter how valid it may appear extrinsically may be
void. A separate proceeding to determine its intrinsic validity
would be superfluous.
- Sofia cannot claim good faith. She knew that Martin had a
pre-existing marriage when they got married.
- Further, donations between persons living in adultery or
concubinage is prohibited by the Civil Code.
- GR: In probate proceedings, the probate court is usually
limited to an examination and resolution of the extrinsic
validity of the will.
- E: For “practical considerations,” the probate court is not
powerless to pass upon certain provisions of the will even
before it is probated.
ART. 839. The will shall be disallowed in any of
the following cases:
(1) If the formalities required by law have
not been complied with;
(2) If the testator was insane, or
otherwise mentally incapable of
making a will, at the time of its
execution;
(3) If it was executed through force or
under duress, or the influence of fear,
or threats;
(4) If it was procured by undue and
improper pressure and influence, on
the part of the beneficiary or of some
other person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or did
not intent that the instrument he
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signed should be his will at the time of
affixing his signature thereto.
 An Exclusive Enumeration of the grounds for
disallowance of a will.
 These are matters involved in formal validity. Once a
probate decree is final, such decree forecloses any
subsequent challenge on any of the matters
enumerated in this article.
 If any of these grounds for disallowance are proven, the
will shall be set aside as VOID.
 A will is either valid or void. If none of the defects
enumerated in this article are present, it is valid; if
any one of these defects is present, the will is void.
The issue of formal validity or nullity is precisely
what the probate proceedings will determine.
 There is no such thing as a Voidable Will.
 GROUNDS FOR DISALLOWANCE OF A WILL
1. FORMALITIES
• Those referred to in Articles 804-818, 818-
819 and 829-821
2. TESTATOR INSANE OR MENTALLY
INCAPABLE AT TIME OF EXECUTION
• Articles 798 – 801 on testamentary
capacity and intent
3. FORCE, DURESS, INFLUENCE OF
FEAR OR THREATS
• Force or Violence – when in order to wrest
consent, serious or irresistible force is
employed.
• Duress or Intimidation – when one of the
contracting parties is compelled by a
reasonable and well-grounded fear of
imminent and grave evil upon his person or
property, or upon the person or property of
his spouse, descendants or ascendants, to
give his consent. Age, sex and condition of
the person are borne in mind. Threat to
enforce a just or legal claim through
competent authority does not vitiate consent.
4. UNDUE & IMPROPER PRESSURE AND
INFLUENCE
• Undue Influence – when a person takes
improper advantage of his power over the will
of another, depriving the latter of a
reasonable freedom of choice. Circumstances
such as the following shall be considered:
confidential, family, spiritual and other
relations between parties, or fact that person
unduly influenced was suffering from mental
weakness or ignorant or in financial distress.
5. SIGNATURE PROCURED THROUGH FRAUD
• Fraud – when through insidious words or
machinations of one of the contracting
parties, the other is induced to enter into a
contract which, without them, he would not
have agreed to.
SUCCESSION REVIEWER
6. MISTAKE OR TESTATOR DID NOT INTENT
INSTRUMENT TO BE HIS WILL WHEN HE
AFFIXED HIS SIGNATURE THERETO
• Mistake – must refer to substance of the
thing which is the object of the contract, or to
those conditions which have principally
moved one or both parties to enter into the
contract. Mistake as to identity or
qualifications only vitiates consent when such
were the principal cause of the contract. A
simple mistake of account gives rise to
correction.
Cases for Arts. 838-839
Reyes v. CA
- Torcuato Reyes died and left all his property to his wife
Asuncion Reyes.
- His recognized natural children with Galolo and his natural
children with Agape opposed the probate of the will on the
ground that Asuncion is not the legal wife of Torcuato since
she was a relative within the fourth civil degree and she was
previously married to a certain Lupo Ebarle.
Whether or not the will must be denied probate.
- SC held that the will must be admitted because:
o The only issues decided during probate are:
(a) whether the testator has animus testandi, (b)
whether vices of consent attended the execution of
the will, and (c) whether the formalities of the will
had been complied with. Hence, the declaration of
the testator that Asuncion is his wife already
involves an inquiry on the intrinsic validity of the
will and need not be inquired by probate court.
o There was never an open admission in the
will of any illicit relationship which could be a
reason for deciding on such issue during probate.
(One of the exceptions is when on the defect is
evident on the face of the will.)
o Testimonies of the witnesses against
Asuncion were merely hearsay and even uncertain
as to the whereabouts of existence of Lupo Ebarle.
o A will is a testator speaking after death. All
doubts must be resolved in favor of the testator’s
having meant just what he said.
- GR: Courts in probate proceedings are limited to pass only
upon the extrinsic validity of the will sought to be probated.
Thus, the court merely inquires on its due execution,
whether or not it complies with the formalities prescribed by
law, and the testamentary capacity of the testator. It does
not determine nor even by implication prejudge the validity
or efficacy of the will's provisions. The intrinsic validity is not
considered since the consideration thereof usually comes
only after the will has been proved and allowed.
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- Exceptions:
1. When the defect of the will is apparent on its face
and the probate of the will may become a useless
ceremony if it is intrinsically invalid.
2. When "practical considerations" demanded it as
when there is preterition of heirs
3. When the testamentary provisions are of doubtful
legality.
4. When the parties agree that the intrinsic validity be
first determined, the probate court may also do so.
Balanay v. Martinez
- Leodegaria Julian, in her will, partitioned her paraphernal as
well as all the conjugal properties as if they were all owned
by her, disposing of her husband's one-half share, and
providing that the properties should not be divided during
her husband's lifetime but should remain intact and that the
legitimes should be paid in cash to be satisfied out of the
fruits of the properties.
- Felix Balanay, Jr. filed a petition for the approval of his
mother's will which was opposed by the husband and some
of her children.
- Thereafter, Felix Jr. submitted to the court a document
showing his father's conformity to the testamentary
distribution, renouncing his hereditary rights in favor of his
children in deference to the memory of his wife.
- The Court gave effect to the affidavit and conformity of the
surviving spouse.
- Meanwhile, a certain Atty. David Montaña, Sr. moved to
dismiss the probate proceedings on the ground that the will
was void because Leodegaria cannot validly dispose of her
husband’s share.
- Said motion was granted by the probate court.
- Petitioner impugned the order of dismissal claiming that Atty.
Montaña had no authority to ask for the dismissal of the
petition for allowance of will and that the court erred in
declaring the will void before resolving the question of its
formal validity.
Whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.
- NO. In view of certain unusual provisions of the will, which
are of dubious legality, the trial court acted correctly in
passing upon the will’s intrinsic validity even before the
formal validity had been established.
- The probate of a will might become an idle ceremony if on
its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should
meet the issue. (In this case, the preterited heir was the
surviving spouse)
Whether the court erred in converting the testate proceeding
into an intestate proceeding
- YES. The rule is that "the invalidity of one of several
dispositions contained in a will does not result in the
invalidity of the other dispositions unless it is to he presumed
that the testator would not have made such other
dispositions if the first invalid disposition had not been
made" (Art. 792, Civil Code).
- "Where some of the provisions of a will are valid and others
invalid, the valid parts will be upheld if they can be
separated from the invalid without defeating the intention of
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the testator or interfering with the general testamentary
scheme, or doing injustice to the beneficiaries"
- Void provisions in the will:
1. The statement of the testatrix that she owned the
"southern half" of the conjugal lands is contrary to law
because, although she was a co-owner thereof, her
share was inchoate and pro indiviso
2. that the properties of the testatrix should not be
divided among her heirs during her husband's lifetime
but should be kept intact and that the legitimes
should be paid in cash is contrary to article '080 of
the Civil Code
Whether an heir may validly renounce his share
- YES. Felix Balanay, Sr. could validly renounce his hereditary
rights and his one-half share of the conjugal partnership
(Arts. '79['] and '04', Civil Code) but insofar as said
renunciation partakes of a donation of his hereditary rights
and his one-half share in the conjugal estate (Art. '050['] Civil
Code), it should be subject to the limitations prescribed in
articles 750 and 752 of the Civil Code. A portion of the
estate should be adjudicated to the widower for his support
and maintenance. Or at least his legitime should be
respected.
- Generally, the probate of a will is mandatory and it is the
duty of the court to pass first upon its formal validity except
in extreme cases where the will is on its face intrinsically
void.
- A will is not rendered null and void by reason of the
existence of some illegal or void provisions since the
invalidity of one of several dispositions contained in a will
does not result in the invalidity of the other dispositions
unless it is to be presumed that the testator would not have
made such other dispositions if the first invalid disposition
had not been made;
- Testacy is favored. Doubts are resolved in favor of testacy
especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate.
Coso v. Daza
- The testator, a married man, had illicit relations with Rosario
Lopez in Spain, having met her in 1898.
- Rosario Lopez took care of the testator in the said foreign
land when he had been severely ill from 1909 to 1916, and
bore an illegitimate son by him.
- When the testator came back to the Philippines in 1918,
Rosario followed, as her heart did dictate, and kept close
until the testator’s death in 1919.
- Undue influence is said to have been exerted over the
testator’s mind by Rosario as the will gave the tercio de libre
disposicion to their illegitimate son and provided for the
payment to Rosario of 1,900 Spanish duros by way of
reimbursement for the expenses incurred by Rosario in
taking care of him.
Whether or not Rosario Lopez exerted undue influence over
the testator of such character as to vitiate his will.
- NO. The parties challenging the will on the ground of undue
influence were not able to discharge the burden of proving
the same.
- While it is shown that the testator entertained strong
affections for Rosario Lopez, it does not appear that her
influence so overpowered and subjugated his mind as to
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“destroy his free agency and make him express the will of
another rather than his own.”
- The testator was an intelligent man, a lawyer by profession,
appears to have his known his own mind, and may well have
been actuated only by a legitimate sense of duty in making
provisions for the welfare of his illegitimate son and by a
proper feeling of gratitude in repaying Rosario Lopez for the
sacrifices she had made for him.
- Mere affection, even if illegitimate, is not undue influence
and does not invalidate a will.
- No imposition or fraud has been shown in the present case.
- To be sufficient to avoid a will, the influence exerted must be
of a kind that so overpowers and subjugates the mind of the
testator as to destroy his free agency and make him express
the will of another, rather than his own.
- Mere affection, even if illegitimate, is not undue influence
and does not invalidate a will.
- No imposition or fraud has been shown in the present case.
- Influence gained by kindness and affection will not be
regarded as ‘undue’, if no imposition or fraud be practiced,
even though it induces the testator to make an unequal and
unjust disposition of his property in favor of those who have
contributed to his comfort and ministered to his wants, if
such disposition is voluntarily made.
Macam v. Gatmaitan
- On March 27, 1933, Nicolasa Macam filed in the CFI a
petition for probate of the will date July 12, 1932 and of the
codicil thereof dated February 17, 1933, executed by
Leoanarda Macam who died on March 18, 1933.
- With the judge absent that there being no opposition to the
probate of the will, upon the instructions of the judge, clerk of
court took the evidence relative to the probate of the will.
- Inasmuch as Gatmaitan opposed to the probate of the
codicil, the clerk of court deemed himself unauthorized to
take evidence relative thereto and refrained from doing so.
- The judge then entered an order allowing the probate of the
will.
- Hearing then was heard for the opposition on the probate of
the codicil, which Gatmaitan filed, one of the legatees
instituted in the will which had already been allowed by final
and executory judgment.
- Probate of the codicil was denied.
- Hence this petition.
WON, the probate of a will by final judgment prior to that of a
codicil thereof a bar to the probate of said codicil. (With respect
to the appeal of Macam regarding the probate of the will.)
- No, the fact that a will has been allowed without any
opposition and the order allowing the same has become
final and executory is not a bar to the presentation and
probate of a codicil, provided it complies with all necessary
formalities for executing a will required by the Civil Code.
- It is not necessary that the will and the codicil be probated
together, as the codicil may be concealed by an interested
party and it may not be discovered until after the will has
already been allowed.
- This is because the purpose of the probate is merely to
determine whether or not the will and the codicil meet all the
legal requisites.
SUCCESSION REVIEWER
WON, the failure to file the opposition to the probate of a will
constitute a bar to the presentation of the codicil for probate.
(With respect to the opposition of Gatmaitan to the probate of
the codicil.)
- No, the fact that Gatmaitan failed to file opposition to the
probate of the will does not prevent her from filing opposition
to the probate of the codicil thereof.
- This is because the will may satisfy all the external
requisites necessary for its validity, but the codicil may, at
the time of is execution, not be in conformity therewith.
- Hence, the order appealed from is reversed and it is ordered
that the probate for the codicil and the opposition thereto be
reinstated.
- The fact that a will has been probated and the order allowing
the same has become final and executory, is not a bar to the
presentation and probate of a codicil, although its existence
was known at the time of the probate of the will.
- The failure of the oppositor to the probate of a codicil to fill
opposition to the probate of the will, having knowledge of
such proceedings, does not constitute an abandonment of a
right, nor does it deprive someone of the right to oppose the
probate of said codicil.
SECTION 2 – INSTITUTION OF HEIR
ART. 840. Institution of heir is an act by virtue of
which a testator designates in his will the
person or person who are to succeed him in
his property and transmissible rights and
obligations.
 Rules on institution of heir set forth in this section apply
as well to institution of Devisees and Legatees.
ART. 841. A will shall be valid even though it
should not contain an institution of an heir, or
such institution should not comprise the
entire estate, and even though the person so
instituted should not accept the inheritance
or should be incapacitated to succeed.
In such cases the testamentary
dispositions made in accordance with law
shall be complied with and the remainder of
the estate shall pass to the legal heirs.
ART. 842. One who has no compulsory heirs may
dispose by will of all his estate or any part of
it in favor of any person having capacity to
succeed.
One who has compulsory heirs may
dispose of his estate provided he does not
contravene the provisions of this Code with
regard to the legitime of said heirs.
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 Even if the will does not contain any testamentary
disposition, it will be formally valid provided it complies
with all the formal requisites. This is in keeping with the
character of wills as dispositive of property under
Art783.
 HOW MUCH CAN BE DISPOSED OF BY WILL?
1. No Compulsory Heirs – Entire hereditary
estate
2. There are Compulsory Heirs – the disposable
portion or the net hereditary estate minus the
legitimes.
 The amount of the legitimes depends on the kinds
and number of compulsory heirs. Various
combinations are possible and so the amount of
disposable portion is also variable.
 If the testator disposes by will of LESS than he is
allowed to, there will be MIXED succession –
 Testamentary succession as to the part disposed
of by will, and
 Intestate succession as to the part not disposed of
by the will.
 The legitimes, of course, pass by strict operation of
law.
ART. 843. The testator shall designate the heir by
his name and surname, and when there are
two persons having the same names, he shall
indicate some circumstance by which the
instituted heir may be known.
Even though the testator may have
omitted the name of the heir, should he
designate him in such manner that there can
be no doubt as to who has been instituted,
the institution shall be valid.
ART. 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the
institution when it is possible, in any other
manner, to know with certainty the person
instituted.
If among the persons having the same
names and surnames, there is a similarity of
circumstances in such a way that, even with
the use of the other proof, the person
instituted cannot be identified, none of them
shall be an heir.
 REQUIREMENT FOR DESIGNATION OF HEIR
 The heir, legatee or devisee must be identified in
the will with sufficient clarity to leave no doubt
as to the testator’s intention.
 The basic rule in testamentary succession always
is respect for and compliance with the testator’s
wishes.
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SUCCESSION REVIEWER
 The designation of name and surname is DIRECTORY.
What is required is that the identity of the designated
successor be sufficiently established. This is usually
done by giving the name and surname, but there are
other ways as can be gleaned from Art843 par2, such
as to one’s ‘eldest first cousin’.
 If there is any AMBIGUITY in the designation, it should
be resolved in light of Art789 – by the context of the will
and any extrinsic evidence available, except the
testator’s oral declarations.
 If it is not possible to resolve the ambiguity, the
testator’s intent becomes indeterminable and
therefore intestacy as to that portion will result.
ART. 845. Every disposition in favor of an
unknown person shall be void, unless by
some even or circumstance his identity
becomes certain. However, a disposition in
favor of a definite class or group of persons
shall be valid.
 Unknown Person
 This article refers to a successor whose identity cannot
be determined because the designation in the will is so
unclear or so ambiguous as to be incapable of
resolution.
 This does not refer to one with whom the testator is not
personally acquainted. The testator may institute
somebody who is a perfect stranger to him, provided
the identity is clearly designated in the will
ART. 846. Heirs instituted without designation of
shares shall inherit in equal parts.
 GENERAL PRESUMPTION
 Equality in cases of collective designation.
 If the testator intends an unequal apportionment,
he should so specify.
 The article applies only in testamentary succession,
and only among testamentary heirs or devisees or
legatees.
 It will NOT APPLY to an heir who is both a
compulsory and a testamentary heir, for in that
case the heir will get his legitime and his
testamentary portion.
 Not explicitly covered by this article is an instance
where the shares of some of the heirs are designated
and those of others are not.
 Example – “I institute to ¼ of my estate A, B, C and
D, of which A will get 1/3 and B is to get ¼.” The
shares of C and D are unspecified. Are they to
divide equally the remaining portion of the ¼ of the
estate, after deducting A’s and B’s portions [The
remainder is 5/12 of ¼?]
 YES, because the article talks about heirs instituted
without designation of shares. A and B have been
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designated their shares, therefore Art846 applied
to C and D.
ART. 847. When the testator institutes some heirs
individually and others collectively as when
he says, “I designate as my heirs A and B,
and the children of C,” those collectively
designated shall be considered as
individually instituted, unless it clearly
appears that the intention of the testator was
otherwise.
 Equality and Individuality of Designation
 This article follows the basic rule of equality in the
previous article. In addition, it established the
PRESUMPTION that the heirs collectively referred to
are designated per capita along with those
separately designated.
 If the testator intends a block designation, he should so
specify.
ART. 848. If the testator should institute his
brothers and sisters, and he has some of full
blood and others of half blood, the
inheritance shall be distributed equally unless
a different intention appears.
 Once again, this article follows the general rule of
equality laid down in Art846.
 Also, if the testator intends an unequal apportionment,
he should so specify.
 DIFFERENT RULE IN INTESTACY
 Art848 only applies to testamentary succession,
wherein siblings, regardless of whether full or half
blood, get equal shares except if a different
intention of the testator appears.
 In INTESTACY, the rule is different. The applicable
provision is Art 1006 which establishes a
proportion of 2:1 between full and half blood
brothers and sisters, but without prejudice to the
rule prohibiting succession ab intestato between
legitimate and illegitimate siblings. [Art992]
Art. 1006. Should brother and sisters of
the full blood survive together with brothers
and sisters of the half blood, the former
shall be entitled to a share double that of
the latter.
Art. 992. An illegitimate child has no
right to inherit ab intestate from the
legitimate children and relatives of his
father or mother; nor shall such children or
relatives inherit in the same manner from
the illegitimate child.
 RE-CAP
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 Testamentary Succession – equality in shares of
full and half blood brothers and sisters unless the
testator provides otherwise [Art848]
 Intestacy – Proportion of 2:1 between full and half
blood brothers and sisters [Art1006], and only if the
disqualification in Art992 does not apply.
 Question – Does Art848 apply even to illegitimate
brothers and sisters, in cases where the testator is of
legitimate status and vice versa? YES. Art848 does not
distinguish.
ART. 849. When the testator calls to the
succession a person and his children they are
all deemed to have been instituted
simultaneously and not successively.
 Article lays down the same rule as Arts. 846 and 847.
 Equality and Individuality of institution are presumed.
 If the testator desires a different mode of
apportionment, he should so specify.
ART. 850. The statement of a false cause for the
institution of an heir shall be considered as
not written, unless it appears from the will
that the testator would not have made such
institution if he had known the falsity of such
cause.
 GENERAL RULE – the falsity of the stated cause for
the testamentary institution DOES NOT AFFECT the
validity or efficacy of the institution.
 Reason – testamentary disposition is ultimately
based on liberality.
 EXCEPTION – the falsity of the stated cause for
institution will set aside the institution if the following
factors are present:
1. Cause for institution is stated in the will
2. Cause must be shown to be false
3. It appears on the face of the will that if the
testator had known of the falsity of such cause,
he would not have instituted the heir.
CASE
Austria v. Reyes
- Basilia Austria filed a petition for probate, ante mortem, of
her last will and testament. The probate was opposed by the
petitioners Ruben, Consuelo and Lauro Austria, and still
others who, like the petitioner, are nephews and nieces of
Basilia. This opposition was, however, dismissed and the
probate of the will allowed
- The bulk of the estate of Basilia, admittedly, was destined
under the will to pass on to the respondents Perfecto Cruz,
Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz
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Cruz-Salonga, all of whom had been assumed and declared
by Basilia as her own legally adopted children.
- More than two years after her will was allowed to probate,
Basilia died.
- The petitioners filed in the same proceedings a petition in
intervention for partition alleging in substance that they are
the nearest of kin of Basilia, and that the five respondents
Perfecto Cruz, et al., had not in fact been adopted by the
decedent in accordance with law, in effect rendering these
respondents mere strangers to the decedent and without
any right to succeed as heirs. According to petitioners, the
language used in the will gives rise to the inference that the
late Basilia was deceived into believing that she was legally
bound to bequeath one-half of her entire estate to the
respondents Perfecto Cruz, et al. as the latter's legitime.
Whether or not the institution of heirs would retain efficacy in
the event there exists proof that the adoption of the said heirs
by the decedent is false.
- YES. If the impelling reason or cause for the institution of the
respondents as her heirs was the testatrix's belief that under
the law she could not do otherwise, she did not make it
known in her will. Surely if she was aware that succession to
the legitime takes place by operation of law, independent of
her own wishes, she would not have found it convenient to
name her supposed compulsory heirs to their legitimes. Her
express adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory scheme.
But even this, like the petitioners' own proposition, is highly
speculative of what was in the mind of the testatrix when she
executed her will.
- One fact prevails, however, and it is the decedent's will does
not state in a specific or unequivocal manner the cause for
such institution of heirs. We cannot annul the same on the
basis of guesswork or uncertain implications. Such
institution may be annulled only when one is satisfied, after
an examination of the will, that the testator clearly would not
have made the institution if he had known the cause for it to
be false.
- Testacy is favored and doubts are resolved on its side,
especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate, as was
done in this case.
- The legality of the adoption of the respondents by the
testatrix can be assailed only in a separate action brought
for that purpose, and cannot be the subject of a collateral
attack.
- Before the institution of heirs may be annulled under article
850 of the Civil Code, the following requisites must concur:
First, the cause for the institution of heirs must be stated in
the will; second, the cause must be shown to be false; and
third, it must appear from the face of the will that the testator
would not have made such institution if he had known the
falsity of the cause.
- So compelling is the principle that intestacy should be
avoided and the wishes of the testator allowed to prevail,
that we could even vary the language of the will for the
purpose of giving it effect. Where the testator was
possessed of testamentary capacity and her last will
executed free from falsification, fraud, trickery or undue
influence this Court held, it is its duty to give full expression
to her will.
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SUCCESSION REVIEWER
ART. 851. If the testator has instituted only one
heir, and the institution is limited to an aliquot
part of the inheritance, legal succession takes
place with respect to the remainder of the
estate.
The same rule applies if the testator has
instituted several heirs, each being limited to
an aliquot part, and all the parts do not cover
the whole inheritance.
 The wording of the article, according to Prof. Balane, is
erroneous because legal succession does not take
place with respect to the remainder of the estate but to
the remainder of the disposable portion.
 There may after all be compulsory heirs whose
legitimes will therefore cover part of the estate, the and
the legitimes do not pass by legal or intestate
succession.
 Suggested Rewording –
Art. 851. If the testator has instituted only
one heir, and the institution is limited to an
aliquot part of the inheritance, less than the
entire disposable portion, legal succession takes
place with respect to the remainder of the
estate.
The same rule applies if the testator has
instituted several heirs, each being limited to an
aliquot part, and all the parts do not cover the
whole inheritance.
 Moreover, this article states exactly the same rule laid
down in Art841. there is absolutely no need for the
redundancy.
ART. 852. If it was the intention of the testator
that the instituted heirs should become sole
heirs to the whole estate, or the whole free
portion, as the case may be, and each of them
has been instituted to an aliquot part of the
inheritance and their aliquot parts together do
not cover the whole inheritance, or the whole
free portion, each part shall be increased
proportionally.
ART. 853. If each of the instituted heirs has been
given an aliquot part of the inheritance, and
the parts together exceed the whole
inheritance, or the whole free portion, as the
case may be, each part shall be reduced
proportionally.
 In both articles –
1. There are more than 1 instituted heir
2. Testator intended them to get the whole estate
or the whole disposable portion
3. Testator designated a definite portion for each.
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 ART. 852 – the total of all the portions is less than the
whole estate or the whole disposable portion.
Therefore, a proportionate increase is necessary.
 The difference cannot pass by intestacy because
the testator’s intention is clear to give the instituted
heirs the entire amount.
 ART. 853 – the reverse occurs, the total exceeds the
whole estate or the whole disposable portion. Thus a
proportionate reduction must be made.
FORMULA FOR PROPORTIONATE
INCREASE OR DECREASE
P HEIR’S SHARE = X
.
P TOTAL DISPOSED P TOTAL ESTATE
DISPOSABLE
ART. 854. 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.
If the omitted compulsory heirs should
die before the testator, the institution shall be
effectual, without prejudice to the right of
representation.
 PRETERITION – means omission, but from what? The
answer to that question is the basic problem in
preterition.
 Manresa’s Definition – “Preterition consists in the
omission of an heir in the will, either because he is not
named, or, although he is named as a father, son, etc.,
he is neither instituted as an heir or expressly
disinherited, nor assigned any part of the estate, thus
being tacitly deprived of his right to the legitime.
 Castan’s Definition – “By preterition is meant the
omission in the will of any of the compulsory heirs,
without being expressly disinherited. It is thus a tacit
deprivation of the legitime, as distinguished from
disinheritance, which is an express deprivation.”
 OMISSION THAT CONSTITUTES PRETERITION
• If the heir in question is instituted in the
will but the portion given to him by the will is less
than his legitime – there is no preterition.
 In the case of Reyes v. Baretto-Datu:
1. There was a compulsory heir in the
direct line
2. Such heir was instituted in the will
3. The testamentary disposition given
to such heir was less than her
legitime
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SUCCESSION REVIEWER
 Based on these, the holding was that there
was NO PRETERITION.
 The reason was there was no TOTAL
OMISSION, inasmuch as the heir received
something from the inheritance. The heir’s
remedy is not found in Art854 but in Arts.
906 and 907 for Completion of Legitime.
Art. 906. Any compulsory heir to
whom the testator has left by any title
less than the legitime belonging to
him may demand that the same may
be fully satisfied.
Art. 907. Testamentary dispositions
that impair or diminish the legitime of
the compulsory heirs shall be reduced
on petition of the same, insofar as
they may be inofficious or excessive.
• If the heir is given a legacy or devise,
there is no preterition.
 Should the value of the legacy or devise be
less than the recipient’s legitime, his
remedy is only for completion of legitime
under Articles 906 and 907.
• If the heir received a donation inter vivos
from the testator – the better view is that there is
no preterition
 Reason – donation inter vivos is treated as
an advance on the legitime under Articles
906, 909, 910 and 1062.
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.
Art. 1062. Collation shall not take
place among compulsory heirs if the
donor should have so expressly provided,
or if the donee should repudiate the
inheritance, unless the donation should be
reduced as inofficious.
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• If the heir is not mentioned in the will nor
was a recipient of a donation inter vivos from the
testator, but not all of the estate is disposed of by
the will – there is no preterition.
 The omitted heir in this instance would
receive something by intestacy, from the
portion not disposed of by the will [the
vacant portion]. The right of the heir, should
the vacant portion be less than his legitime,
will simply be to demand completion of his
legitime, under Articles 906 and 907.
 For there to be preterition, therefore, the heir in
question must have received NOTHING from the
testator by way of:
1. Testamentary succession
2. Legacy or devise
3. Donation inter vivos, or
4. Intestacy
 Preterition means therefore – TOTAL OMISSION IN
THE INHERITANCE.
 WHO ARE INCLUDED WITHIN THE TERMS OF THE
ARTICLE?
 A compulsory heir in the direct line, whether living
at the time of the execution of the will or born after
the death of the testator.
1. COMPULSORY HEIRS IN THE DIRECT LINE
–
• Covers children or descendants, and in
proper cases [in default of children or
descendants] parents or ascendants
• Surviving Spouse – does not fall within the
purview of this article because although a
compulsory heir, is not in the direct line.
• Under Art964 par2, direct line is that
constituted by the series of degrees
among ascendants and descendants.
2. Are ILLEGITIMATE DESCENDANTS OR
ASCENDANTS within the coverage of
“compulsory heirs in the direct line”?
• Manresa – YES, Scaevola – NO.
• Manresa’s seems to be the better opinion,
since the law does not distinguish.
3. QUASI-POSTHUMOUS CHILDREN –
• There is a flaw in the wording of the
article. The phrase “whether living at the
time of the execution of the will or born
after the death of the testator” does not,
by its terms, include those compulsory
heirs in the direct line born after the
execution of the will but before the
testator’s death [los cuasi posthumous].
• However, such children are, without
doubt, to be included within the purview of
the protection of this article.
4. PREDECEASE OF PRETERITED
COMPULSORY HEIR –
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SUCCESSION REVIEWER
• 2nd paragraph of Art 854 provides: If the
omitted compulsory heirs should die
before the testator, the institution shall be
effectual, without prejudice to the right of
representation.
• Should the preterited heir predecease or
be unworthy to succeed the testator, the
question of preterition of that heir
becomes moot.
• However, should there be a descendant of
that heir who is himself preterited, then
the effects of preterition will arise.
• Example – X has 2 legit kids: A and B. X
makes a will which results in preterition of
A. A dies before X but leaves a legit child,
A-1, who is himself completely omitted
from the inheritance [A-1 being entitled to
succeed X by representation]. Art854 will
apply, not because A was preterited but
because A-1 was preterited.
5. ADOPTED CHILDREN
• Case of Acain v. IAC answers the
question of whether an adopted child is
within the contemplation of this article as
“compulsory heir in the direct line” and
rules in favor of the adopted child’s
inclusion in the phrase.
• An adopted child therefore, if totally
omitted in the inheritance, is preterited
within the contemplation of Art854 and
can invoke its protection and
consequences.
• Acain’s logic is that since an adopted child
is given by law the same rights as a
legitimate child, vis-à-vis the adopter, then
the adopted child can, in proper cases,
invoke Art854 in the same manner that a
legitimate child can.
• The law cited was Art39 of PD603 or the
Child and Youth Welfare Code as
supplanted by Art189[1] of the Gamily
Code, likewise supplanted by Secs 17 and
18 of RA8552 or the Domestic Adoption
Act of 1998.
 EFFECT OF PRETERITION
 Annulment of the institution of an heir but validity of
legacies and devisees to the extent that these
latter do not impair legitimes.
 Distinction between heirs and legatees/devisees –
This in the only instance when there is still a
practical effect in the distinction between an heir
and a legatee or devisee in Art782.
 According to the case of Nuguid v. Nuguid,
annulment of institution of heir means only the
legacies and devises will merit consideration if
expressly given in the will. Art854 does not mean
that the mere institution of a universal heir in a will
– void because of preterition – would give the heir
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so instituted a share in the inheritance. As to the
heir, the will is inexistent.
 In that case, the only provision in the will was the
institution of the petitioner a universal heir. That
institution, by itself, was held null and void.
Therefore, intestate succession ensued.
 However, this was muddled in the case of Solano
v. CA wherein it was ruled that the preterition of
illegitimate children should annul the institution of
the heir “only insofar as the legitime of the omitted
heirs is impaired”.
 Prof. Balane says this is not annulment but
reduction, and this would erase the distinction
between the effect of preterition on the institution of
the heir and its effect on legacies and devises.
 Fortunately, this was cleared up in Acain v. CA
wherein it was held that “Preterition annuls the
institution of an heir and annulment throws open to
intestate succession the entire inheritance. The
only provisions which do not result in intestacy are
the legacies and devises made in the will for they
should stand valid and respected, except insofar as
the legitimes are concerned.”
 RE-CAP – the correct rule of preterition is that:
 Preterition abrogates the institution of heir but
respects legacies and devises insofar as these do
not impair the legitimes. Thus, if the will contains
only institutions of heirs and there is preterition,
TOTAL INTESTACY will result.
 If there are legacies or devises and there is
preterition, the legacies or devises will stand, to the
extent of the free portion [merely to be reduced and
not set aside, if the legitimes are impaired] but the
institution of heirs, if any, will be swept away.
 PRETERITION v. INEFFECTIVE DISINHERITANCE
 Preterition is total omission from the inheritance,
without the heir being expressly disinherited. The
implied basis of the rule is inadvertent omission by
the testator.
 Thus, if the testator explicitly disinherits the heir,
this article will not apply.
 Should the disinheritance be ineffective, for
absence of one or other of the requisites for a valid
disinheritance, the heir is simply entitled to demand
his rightful share.
CASES
Reyes v. Baretto-Datu
- Bibiano Barretto, married to Maria Gerardo, died and left his
properties to his daughters Salud and Milagros, except for
the usufruct of a fishpond which he reserved for his widow.
- Maria Gerardo as administratrix, by a project of partition,
distributed the estate and delivered the shares of the heirs.
Salud took immediate possession of her share and procured
the issuance of land titles to her name.
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- Upon Maria Gerardo’s death, it was discovered that she
executed 2 wills, in the first she instituted both Salud and
Milagros as heirs and in the second she revoked the same
and left all her properties to Milagros alone. The 2nd will was
probated and it was proved that Salud was not the daughter
of Maria.
- Having lost her share in the estate of Maria, Salud went after
the remnant of Bibiano’s estate, which was given in usufruct
to Maria, by filing an action for the recovery of ½ thereof.
- This action afforded Milagros an opportunity to set up her
right of ownership not only of the fishpond but sought
recovery of all the properties acquired by Salud from
Bibiano, because Salud is a spurious heir not entitled to any
share.
- Milagros also alleged that since what was allotted in her
father’s will to her was smaller than her legitime, then there
is preterition, thus annulling the institution of heirs in the will.
Whether Salud may inherit from Bibiano
- Yes. Salud admittedly has been instituted heir in the
Bibiano’s will together with Milagros. Hence, the partition
had between them could not be one such had with a party
who was not believed to be an heir without really being one,
and was not null and void. The legal precept does not
speak of children or descendants but of heirs, and the fact
that Salud happened not to be a daughter of the testator
does not preclude her being one of the heirs expressly
named in his testament; For Bibiano was at liberty to assign
the free portion of his estate to whomsoever he choose.
While the ½ share assigned to Salud impinged on the
legitime of Milagros, Salud did not for that reason cease to
be a testamentary heir of Bibiano.
Whether there was preterition
- None. There was no preterition even if Milagros was allotted
a smaller share than her legitime because there was no total
omission of a forced heir.
- If the heir in question is instituted in the will but the portion
given to him by the will is less than his legitime, there is no
preterition.
Aznar v. Duncan
- Edward Christensen, a citizen of California with domicile in
the Philippines, died leaving a will.
- The will was admitted to probate. In the same decision, the
court declared that Maria Helen Christensen Garcia was a
natural child of Edward.
- In his will, Edward expressly mentioned that he bequeath
unto Helen Garcia Php 3,600 notwithstanding the fact she is
not in any way related to him, nor has she been at any time
adopted by him.
- The court then issued an order approving the project
partition submitted by the executor wherein the properties of
the estate were divided equally between Maria Lucy
Christensen Duncan, whom the testator had expressly
recognized in his will as his natural daughter and Helen
Garcia, who had been judicially declared as such after his
death.
- The said order was based on the proposition that since
Garcia had been preterited in the will, the institution of
Duncan as heir was annulled, and hence the properties
passed to both of them as if the deceased had died
intestate. Thus, Duncan appealed.
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Whether the estate should pertain to Duncan and Garcia in
equal shares or whether the inheritance of Duncan as
instituted heir should be merely reduced to the extent
necessary to cover the legitime of Garcia, equivalent to ¼ of
the entire estate.
- In order that the right of a forced heir may be limited only to
the completion of his legitime (instead of the annulment of
the institution of heirs) is it necessary that he should be
recognized or referred to in the will as heir?
- The SC set aside the project of partition. It remanded the
case with instruction to partition the hereditary estate by
giving to Garcia no more than the portion corresponding to
her legitime, equivalent to ¼ of the hereditary estate.
- The case is not a case of preterition but a case of
completion of legitime. The institution in the will not be
annulled. There would be no intestacy.
- The Court mentioned Manresa and 3 decisions of the SC of
Spain. In each of those case, the testator left to one who
was a forced heir a legacy worth less than the legitime, but
without referring to the legatee as an heir or even as a
relative, and will the rest of the estate to other persons. It
was held that in such cases, the heir could not ask that the
institution of heirs be annulled entirely, but only that the
legitime be completed.
- The Court viewed such as in consonance with the
expressed wishes of Edward as may be observed from the
provisions of his will. He refused to acknowledge Garcia as
his natural daughter and limited her share to a legacy of Php
3600. The fact that she was subsequently declared judicially
to possess such status is no reason to assume that had the
judicial declaration come during his lifetime his subjective
attitude towards her would have undergone any change and
that he would have will his estate equally to her and to
Duncan, who alone was expressly recognized by him
- There is no preterition if the heir is given a legacy or devise.
- Art. 854 of the NCC: 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.
- Art. 906 of the NCC: Any compulsory heir whom the testator
has left by any title less than the legitime belonging to him
may demand that the same be fully satisfied.
- Preterition is 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.
- Whether the testator gave a legacy to a person, whom he
characterized in the testamentary provision as not related to
him, but later his person was judicially declared to be his
acknowledged natural child, the case is not a case of
preterition but a case of completion of legitime. The
institution in the will not be annulled. There would be no
intestacy.
Acain v. IAC
- Constantino Acain filed with the RTC a petition for the
probate of the will of the late Nemesio Acain.
- In the said will, Nemesio instituted his brother Segundo as
the heir. In case Segundo pre-deceased him, Segundo’s
children (Constantino and his brothers & sisters) would
SUCCESSION REVIEWER
receive Nemesio’s share in the conjugal property of
Nemesio and Rosa.
- Segundo pre-deceased Nemesio. Now, the children of
Segundo are claiming to be heirs of Nemesio.
- Rosa (the widow) and Virginia Fernandez (a legally adopted
daughter of Nemesio) opposed the probate.
WON Rosa and Virginia were preterited.
- As to the widow (Rosa), Art. 854 does not apply, although
she is a compulsory heir.
- Even if the surviving spouse is a compulsory heir, there is no
preterition even if she is omitted from the inheritance, as she
is not in the direct line.
- As to the adopted child (Virginia), there is preterition since
she was totally omitted in the inheritance.
- The Child and Youth Welfare Code gives an adopted
person the same rights and duties as if he were a legitimate
child of the adopter and makes the adopted person a legal
heir of the adopter.
- Since preterition annuls the institution of heir and no devises
or legacies having been provided in the will, the probate of
the will must be denied. An intestate settlement of the estate
should proceed.
- Art. 854, NCC: The preterition or omission of 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.
- Preterition consists in the omission in the testator’s will of
the forced heirs because they were not mentioned therein,
or though mentioned, they are neither instituted as heirs not
are expressly disinherited.
Nuguid v. Nuguid
- Rosario Nuguid died, single without descendants but was
survived by her legitimate parents and 6 legitimate siblings.
- One of which was instituted as the universal heir and he filed
an action for probate of the decedent’s will which was
opposed by her parents on the ground that they were
preterited and thus the institution of the universal heir is
void.
Whether or not the will is void.
- YES. SC held that it is because: The will completely omits
the parents; thus, depriving them of their legitime. This is a
clear case of preterition.
- Petitioner herein was instituted as the universal heir and no
specific legacies or bequests are provided for; hence, nullity
of the will is complete.
- Even if Art. 1854 provides that notwithstanding the
annulment, the devises and legacies shall be valid insofar as
they are not officious, the will is inexistent since there was
no testamentary disposition separate from the nullified
institution of the heir. Hence, intestate succession ensues.
- This is a case of preterition and not disinheritance since the
will does not expressly disinherits the forced heirs. It simply
omits their names.
- To consider the institution of an heir to be the same as
legacy will defeat the purpose of Art. 854 on total or partial
nullity.
- Preterition "consists in the omission in the testator's will of
the forced heirs or anyone of them, either because they are
not mentioned therein, or, though mentioned, they are
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neither instituted as heirs nor are expressly disinherited."
Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heir of his share in the legitime for
a cause authorized by law."
- Preterition under Article 854 of the Civil Code, we repeat,
"shall annul the institution of heir". This annulment is in toto,
unless in the will there are, in addition, testamentary
dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", put
only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition.
Better stated yet, in disinheritance the nullity is limited to that
portion of the estate of which the disinherited heirs have
been illegally deprived.
ART. 855. The share of a child or descendant
omitted in a will must first be taken from the
part of the estate not disposed of by the will,
if any; if that is not sufficient, so much as may
be necessary must be taken proportionally
from the shares of the other compulsory
heirs.
 Article is redundant and completely unnecessary of it is
made to apply to cases of preterition. If there is
preterition, only Art854 need be applied.
 Proper Application of Art855 – in cases where a
compulsory heir is not preterited but left something
[because not all the estate is disposed of by will] less
than his legitime. Art855 really talks of a completion of
legitime.
 HOW TO FILL UP COMPULSORY HEIR’S IMPAIRED
LEGITIME?
 From the portion of the estate left undisposed of by
will.
 From the shares of the testamentary heirs,
legatees and devisees, proportionally.
 Superfluity and Inaccuracy of Art855 –
 Superfluity – article, properly understood, does not
apply to preterition but to completion of legitime, it
is redundant, because the rules and manner of
completing impaired legitimes are laid down with
greater detail in Articles 906, 907, 909, 910 and
911.
 Inaccuracy – two inaccuracies
1. Coverage should extend not only to children
and descendants but to all compulsory heirs.
As subsequent articles [906, etc.] mandate,
any compulsory heir whose legitime is
impaired may demand that the same be fully
satisfied.
2. Proportionate reductions [after consuming the
undisposed portion] should be borne not by
the compulsory heirs as such but by the
testamentary heirs, including the devisees and
legatees.
SUCCESSION REVIEWER 1ST SEM 2006-2007

• To make the compulsory heirs qua

compulsory heirs bear the reduction would Kind of PRE- INCA- RENUN- DISINHE
mean reducing their own legitimes – a Heir DECEAS PACITY CIATIO RI-
patent absurdity. E N TANCE
TN R TN R TN R TN R
• That would be solving one problem by
COMPUL       
creating another. -SORY
• As correctly stated by Art907, it is VOLUNT    NA NA

testamentary dispositions that must be ARY

LEGAL NA NA
reduced if they impair or diminish the     
legitimes of compulsory heirs.
TN – Transmits nothing
 Senator Tolentino comments that article should be R - Representation
rephrased as follows -
The share of the compulsory heir
omitted in a will must first be taken from the
part of the estate not disposed of by the will,
if any; if that is not sufficient, so much as
may be necessary must be taken
proportionally from the shares of the other
heirs given to them by will.
Cases for Articles 854-856

ART. 856. A voluntary heir who dies before the
testator transmits nothing to his heirs.
A compulsory heir who dies before the
testator, a person incapacitated to succeed,
and one who renounces the inheritance, shall
transmit no right to his own heirs except in
cases expressly provided for in this Code.
 Observations on the Article
 Inaccurate and misleading because it suggests that
there are exceptions to the rule that an heir, in
case of predecease, incapacity or renunciation,
transmits nothing to his own heirs.
• This rule of non-transmission is
ABSOLUTE and there is no exception to it.
• Representation does not constitute an
exception because in representation the
person represented does not transmit
anything to his heirs. Representation is rather
a form of subrogation.
 It says too much because the article is in the
chapter on testamentary succession under
institution of heir, therefore it should speak only of
voluntary or testamentary heirs.
 It says too little because it does not mention legal
or intestate heirs nor does it provide for cases of
disinheritance.
 Rather, the complete statement of the rule is –
 An heir, whether compulsory, voluntary or legal,
transmits NOTHING to his heirs in case of
predecease, incapacity, renunciation or
disinheritance. However, in case of predecease or
incapacity of compulsory or legal heirs, as well as
disinheritance of compulsory heirs, the rules on
representation shall apply.
 Outline of Rules
Rabadilla v. CA
- Aleja Belleza, in a codicil appended to her Last Will and
Testament, bequeathed a lot to Dr. Jorge Rabadilla subject
to certain conditions:
A.) That should Jorge die before the testator, the
property shall be inherited by the latter’s spouse and
children
B.) That if the ownership of the property is finally
transmitted to Jorge, he shall be liable to deliver until
he dies 75 piculs of sugar a year to Maria Belleza
while she is still alive.
C.) That in case of Jorge’s death, his heirs shall also be
imposed the same obligation.
D.) And that if the heir shall later sell, lease, mortgage
this said Lot, the buyer, lessee, mortgagee, shall
have also the obligation to deliver yearly 100 piculs of
sugar to Maria Belleza, provided that the buyer,
lessor or mortgagor be near descendants and sister
of the testator.
- The will also provided that in case the buyer, lessor or
mortgagor fails to fulfill said obligations, Maria Belleza is
entitled to forfeit the lots in favor of the testator’s
descendants.
- Jorge Rabadilla died, and his spouse and children
succeeded him.
- Now, Maria Belleza filed a complaint against Jorge’s heirs
due to alleged violations of the Codicil and asked for the
property to be reconveyed to the near descendants of Aleja
Belleza on the ground that:
A.) the lot was mortgaged to PNB, not a near
descendant of the testator,
B.) that the heirs failed to deliver the piculs of sugar beg.
1985,
C.) that PNB also did not comply with the obligation to
deliver 100 piculs of sugar/year.
- RTC dismissed the claim. On Appeal, the CA ruled that
indeed the heirs violated the obligations imposed upon them
and therefore the land should be seized and reconveyed to
the estate of Aleja. However, they should file a separate
proceeding to re-open the estate and have it distributed to
Aleja’s heirs.

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- Belleza Appealed.
Whether or not the Article 882 of the CC on modal institutions
govern the disposition rather than the provisions on institution
through simple substitution.
- The SC affirmed the decision of the Court of Appeals in
applying Art 882 of the Civil Code.
- The Court held that the disposition in question in favor of
Jorge Rabadilla could neither be simple substitution or
fideicommissary.
- In simple substitutions, the second heir takes the inheritance
in default of the first heir by reason of incapacity,
predecease or renunciation.
- In the case under consideration, the provisions of subject
Codicil do not provide for said 3 conditions. What the Codicil
provides is that, should Dr. Jorge Rabadilla or his heirs not
fulfill the conditions imposed in the Codicil, the property
referred to shall be seized and turned over to the testatrix's
near descendants.
- It could not also be a fideicommissary because the element
that the first heir is obliged to preserve and transmit the
property to a second heir is not present.
- In this case, the instituted heir is in fact allowed under the
Codicil to alienate the property provided the negotiation is
with the near descendants or the sister of the testatrix.
Without the duty to preserve, there is no fideicommissary
substitution.
- Also, the second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree from
the first heir or the fiduciary.
- In this case, the second heir or the fideicommissary to whom
the property is transmitted must not be beyond one degree
from the first heir or the fiduciary.
- The disposition was in the nature of modal institutions. Here,
the testator imposes a charge upon the instituted heir
without, however, affecting the efficacy of such institution.
- In conditional substitution however, the efficacy of the
inheritance is subject to the condition.
- In case of doubt, the institution must be considered as modal
and not institutional.
- In simple substitutions, the second heir takes the inheritance
in default of the first heir by reason of incapacity,
predecease or renunciation.
- Elements in Fideicommissary Sub:
A) the first heir is obliged to preserve and transmit the
property to a second heir
B) the second heir or the fideicommissary to whom the
property is transmitted must not be beyond one
degree from the first heir or the fiduciary.
- In modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left
by the testator, or (3) the charge imposed by the testator
upon the heir. A "mode" imposes an obligation upon the heir
or legatee but it does not affect the efficacy of his rights to
the succession.
Non v. CA
- Deceased spouses Julian and Virginia Viado owned several
properties, among them a house and lot located at Isarog
St., La Loma, Quezon City; they had four children.
- Leah Viado Jacobs and Nilo Viado both died in 1987, with
Nilo leaving behind his wife, Alicia, and two children, herein
respondents.
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- The other two siblings, Rebecca Viado-Non and Delia Viado
are the petitioners in this case.
- As the two parties lived in the Isarog property, Alicia and her
two children demanded Rebecca and Delia to vacate;
Rebecca and Delia raised co-ownership as a defense.
- Alicia claimed absolute ownership as evinced by a deed of
donation in which the late Julian Viado donated his conjugal
share of the property to Alicia’s deceased husband.
- There was also a deed of extrajudicial settlement where
Rebecca Viado-Non and the late Leah Viado (without Delia
Viado’s participation) waived their rights and interests over
their share of the property inherited from their mother
Virginia.
- Thus, the property was titled in the name of the heirs of Nilo
Viado.
- An action for partition was brought by Rebecca Viado-Non
and Delia Viado in which the court ruled in favor of Alice and
her children.
Whether or not the deeds were valid despite allegations of
fraud, forgery and undue influence.
- YES, on account of the following:
- First, while asserting the employment of fraud, forgery and
undue influence in procuring the signatures of the parties to
the deeds of donation and of extrajudicial settlement,
Rebecca Viado-Non and Delia Viado are vague on how and
in what manner those supposed vices occurred.
- Second, there no proof shown as to why Julian Viado should
be held incapable of exercising sufficient judgment in ceding
his rights and interest over the property to Nilo Viado.
- Third, the fact alone that the two deeds were registered only
five (5) years after their execution would not affect their
validity or point to fraud.
Whether or not there was preterition in the deed of extrajudicial
settlement with respect to the retardate Delia Viado.
- YES. The exclusion of Delia Viado has the effect of
preterition.
- This kind of preterition, however, in the absence of fraud and
bad faith, does not justify a collateral attack on the new title.
- Article 1104 provides the remedy: where the preterition is
not attended by bad faith and fraud, the partition shall not be
rescinded but the preterited heir shall be paid the value of
the share pertaining to her.
- Article 1104 provides: where the preterition is not attended
by bad faith and fraud, the partition shall not be rescinded
but the preterited heir shall be paid the value of the share
pertaining to her.
SECTION 3 – SUBSTITUTION OF HEIRS
Art. 857. Substitution is the appointment of
another heir so that he may enter into the
inheritance in default of the heir originally
instituted.
 The definition of substitution is incomplete because it
covers only simple substitution and excludes the
fideicommissary. In the fideicommissary, the 2nd heir
does not succeed in default, but AFTER the first.
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 The complete definition of substitution should be –
“Substitution is the appointment of another heir so that
he may enter into the inheritance in default of, or
subsequent to, the heir originally substituted.”
 With respect to Simple Substitution, this section is
properly a part of the next section on conditional
testamentary dispositions.
 Simple substitution is really a form of conditional
institution.
 The right to provide for substitutions is based on
testamentary freedom.
 In simple substitutions, the testator simply makes a
second choice, in case the first choice does not inherit.
 In fideicommissary substitutions, the testator imposes
what is essentially a RESTRICTION OR BURDEN on
the first heir, coupled with a selection of a subsequent
recipient of the property.
Art. 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary.
 Under the old Spanish Code, in addition to the 4
enumerated, there were pupilar and ejemplar
substitutions under Arts. 775 and 776, providing that an
ascendant or the parent may substitute the descendant
below 14 years old in case the descendant should die
before age 14; and that a substitute may be designated
by an ascendant for a descendant who is over 14 but
has been declared incompetent by reason of mental
incapacity, but such substitution shall be ineffective by a
will executed by the incompetent during a lucid interval
or after he ahs recovered his mental faculties.
 KINDS OF SUBSTITUTION UNDER ART858
1. Simple or Common [vulgar] – Art859
2. Brief or Compendious [brevilocua /
compendiosa] – Art860
3. Reciprocal [reciproca] – Art861
4. Fideicommissary [fideicomisaria] – Art863
 In reality, there are only 2 kinds of substitutions – the
simple or common and the fideicommissary. These two
are MUTUALLY EXCLUSIVE, a substitution must be
one or the other and cannot be both at the same time.
 Brief or compendious and reciprocal substitutions are
merely variations of either the simple or
fideicommissary.
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ART. 859. The testator may designate one or
more persons to substitute the heir or heirs
instituted in case such heir or heirs should
die before him, or should not wish, or should
be incapacitated to accept the inheritance.
A simple substitution, without a statement
of the cases to which it refers, shall comprise
the there mentioned in the preceding
paragraph, unless the testator has otherwise
provided.
 This article provides for SIMPLE or VULGAR
substitution.
 CAUSES OF SIMPLE SUBSTITUTION
1. Predecease of the first heir
2. Renunciation of the first heir
3. Incapacity of the first heir
 HOW TESTATOR MAY PROVIDE FOR SIMPLE
SUBSTITUTION WITH ALL 3 CAUSES
1. By specifying all 3 causes
2. By merely providing for a simple substitution
 Restricted Simple Substitution – the testator may limit
the operation of simple substitution by specifying only
one or two of the 3 causes.
 QUESTIONS –
 May the testator provide for a substitution on
grounds other than those provided in this article?
 In case of renunciation by the first heir, must the
substitute have capacity at the time of the
renunciation? Supposing the substitute dies before
the first heir manifests his renunciation, may the
successors of the substitute acquire the
testamentary disposition?
• Must have capacity – Art1034 par 3
providing that “If the institution, devise or
legacy should be conditional, the time of the
compliance with the condition shall also be
considered.” As a simple substitution is a
form of conditional substitution, therefore
Art1034 can be applied.
• Need not have capacity – Art1042 and
533 par2 which provides that the effects of
the acceptance or repudiation of the
inheritance shall always retroact to the
moment of the death of the decedent” and
that “one who validly renounces an
inheritance is deemed never to have
possessed the same.”
 Will the substitute be disqualified if the cause of the
first heir’s predecease is that the substitute killed
him?
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ART. 860. Two or more persons may be
substituted for one; and one person for two
or more heirs.
 Brief or Compendious substitution is a possible
variation of either a simple or fideicommissary
substitution.
 Distinctions
 Brief – 2 or more substitutes for 1 original heir
 Compendious – 1 substitute for 2 or more orig.
 However, most commentators use the terms
interchangeably.
 If 1 is substituted for 2 or more original heirs –
 Effect of default of one but not all of the original
heirs is that substitution will NOT take place but the
share left vacant will accrue to the surviving original
co-heir or co-heirs.
 Substitution will take place only if ALL the
original heirs are disqualified.
 The exception is where the testator provides for
substitution in the event of the death or
renunciation or incapacity of any one of the original
heirs.
ART. 861. If heirs instituted in unequal shares
should be reciprocally substituted, the
substitute shall acquire the share of the heir
who dies, renounces, or is incapacitated,
unless it clearly appears that the intention of
the testator was otherwise. If there are more
than one substitute, they shall have the same
share in the substitution as in the institution.
 Reciprocal substitution is a possible variation of the
simple or fideicommissary substitution.
 If the heirs in a will are given unequal shares, and they
are reciprocal substitutes of each other, the substitute
shall, in addition to his given share, acquire the share of
the heir who he is substituting for due to predecease,
renunciation or incapacity.
 Example, A gets ¼ and B gets ¼. They are
reciprocally substituted. If A predeceases the
testator, B will substitute and get the share of A [¼]
in addition to his share, so in total he gets ½.
 The second sentence of Art861 provides for
Proportionate Accrual. If there are more than 1 heir
instituted, and they are reciprocally substituted, the
substitutes will acquire the share of the original heir in
the same proportion as they were given in the
testamentary disposition.
 Example, A gets ½, B gets 1/3 and C gets 1/6. If a
predeceases the testator, B and C will acquire A’s
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½ share in the proportion of 2:1 because their
respective testamentary shares are ½ and 1/6.
Should B predecease, A and C will get his portion
in the proportion of 3:1 because their respective
shares are ½ and 1/6. Should C predecease, A
and B will get C’s 1/6 portion in the proportion of
3:2 for the same reason.
ART. 862. The substitute shall be subject to the
same charges and conditions imposed upon
the instituted heir, unless the testator has
expressly provided the contrary, or the
charges or conditions are personally
applicable only to the heir instituted.
 The substitute merely takes the place of the original
heir, so the former is also subjected to all the liabilities
as well as rights of the latter, including charges and
conditions imposed upon the original heir.
ART. 863. A fideicommisary substitution by virtue
of which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and
to transmit to a second heir the whole or part
of the inheritance, shall be valid and shall
take effect, provided such substitution does
not go beyond one degree from the heir
originally instituted, and provided further, that
the fiduciary or first heir and the second heir
are living at the time of the death of the
testator.
 First heir – fiduciary ; Second heir – fideicommissary
 ELEMENTS OF FIDEICOMISARIA
1. A 1st heir who takes the property upon the
testator’s death
• Fiduciary enters upon the inheritance, like
every other heir, upon the opening of the
succession, which is when the testator
dies.
2. A 2nd heir who takes the property subsequently
from the fiduciary
• The fideicommissary heir does not receive
the property until the fiduciary’s right
expires.
• BOTH heirs enter into the inheritance, one
after the other, each in his own turn. This
distinguishes the fideicomisaria from the
vulgar, in which the substitute inherits only
if the first heir fails to inherit.
• NOTE – though the fideicommissary heir
does not receive the property upon the
testator’s death, his right thereto VESTS
at that time and merely becomes subject
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to a period, and that right passes to his
own heirs should he die before the
fiduciary’s right expires.
3. The 2nd heir must be 1 degree from the first
heir
• Means 2 things
a) Only one transmission/transfer is
allowed, from the first heir to the
second heir
b) Second heir must be in the first
degree of relationship with the first
heir. The second heir must either be
a child or parent of the first heir
4. Dual obligation imposed upon the 1st heir to:
a) Preserve the property, and
b) To transmit it after the lapse of the
period to the fideicommissary heir.
• This requisite is the essence of the
fideicomisaria. This makes the position of
the fiduciary basically that of a
usufructuary, with the right to use and
enjoy the property but WITHOUT JUS
DISPONENDI.
• If there is no absolute obligation to
preserve and transmit, there is no
fideicommissary substitution.
• The institution is not necessarily void, it
may be valid as some other disposition
but it is not a fideicomisaria.
• In PCIB v. Escolin, the institution was held
to be a simultaneous institution, a
resolutory condition on the part of the
husband while subject to a suspensive
condition on the part of the brothers- and
sisters-in-law and not a fideicomisaria
because no obligation is imposed upon
the husband to preserve the estate or any
part thereof for anyone else.
• If the testator DID NOT specify a day
when the fiduciary will deliver the property
to the fideicomissary, or when the time of
delivery is in doubt, it shall be understood
to have been left to the fiduciary’s
discretion, which means the delivery
should be upon the FIDUCIARY’S
DEATH. This is based on the presumption
that the testator intended the fiduciary to
enjoy the property during his lifetime.
5. Both heirs must be living and disqualified to
succeed at the time of the testator’s death.
• Living – according to Articles 40-41
Art. 40. Birth determines personality; but the
conceived child shall be considered born for all
purposes that are favorable to it, provided it be
born later with the conditions specified in the
following article.
Art. 41. For civil purposes, the fetus is considered
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born if it is alive at the time it is completely
delivered from the mother's womb. However, if
the fetus had an intra-uterine life of less than
seven months, it is not deemed born if it dies
within twenty-four hours after its complete
delivery from the maternal womb.
• Qualified – according to Articles 1024-
1034.
Art. 1024. Persons not incapacitated by law may
succeed by will or ab intestato.
The provisions relating to incapacity by will are
equally applicable to intestate succession.
Art. 1025. In order to be capacitated to inherit, the
heir, devisee or legatee must be living at the
moment the succession opens, except in case of
representation, when it is proper.
A child already conceived at the time of the
death of the decedent is capable of succeeding
provided it be born later under the conditions
prescribed in article 41.
Art. 1026. A testamentary disposition may be made to
the State, provinces, municipal corporations,
private corporations, organizations, or
associations for religious, scientific, cultural,
educational, or charitable purposes.
All other corporations or entities may succeed
under a will, unless there is a provision to the
contrary in their charter or the laws of their
creation, and always subject to the same.
Art. 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the
testator during his last illness, or the minister
of the gospel who extended spiritual aid to him
during the same period;
(2) The relatives of such priest or minister of the
gospel within the fourth degree, the church,
order, chapter, community, organization, or
institution to which such priest or minister may
belong;
(3) A guardian with respect to testamentary
dispositions given by a ward in his favor before
the final accounts of the guardianship have
been approved, even if the testator should die
after the approval thereof; nevertheless, any
provision made by the ward in favor of the
guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be
valid;
(4) Any attesting witness to the execution of a
will, the spouse, parents, or children, or any
one claiming under such witness, spouse,
parents, or children;
(5) Any physician, surgeon, nurse, health officer
or druggist who took care of the testator during
his last illness;
(6) Individuals, associations and corporations not
permitted by law to inherit.
Art. 1028. The prohibitions mentioned in article 739,
concerning donations inter vivos shall apply to
testamentary provisions.
Art. 1029. Should the testator dispose of the whole or
part of his property for prayers and pious works
for the benefit of his soul, in general terms and
without specifying its application, the executor,
with the court's approval shall deliver one-half
thereof or its proceeds to the church or
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denomination to which the testator may belong,
to be used for such prayers and pious works, and
the other half to the State, for the purposes
mentioned in Article 1013.
Art. 1030. Testamentary provisions in favor of the
poor in general, without designation of particular
persons or of any community, shall be deemed
limited to the poor living in the domicile of the
testator at the time of his death, unless it should
clearly appear that his intention was otherwise.
The designation of the persons who are to be
considered as poor and the distribution of the
property shall be made by the person appointed
by the testator for the purpose; in default of such
person, by the executor, and should there be no
executor, by the justice of the peace, the mayor,
and the municipal treasurer, who shall decide by
a majority of votes all questions that may arise.
In all these cases, the approval of the Court of
First Instance shall be necessary.
The preceding paragraph shall apply when the
testator has disposed of his property in favor of
the poor of a definite locality.
Art. 1031. A testamentary provision in favor of a
disqualified person, even though made under the
guise of an onerous contract, or made through an
intermediary, shall be void.
Art. 1032. The following are incapable of succeeding
by reason of unworthiness:
(1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue;
(2) Any person who has been convicted of an
attempt against the life of the testator, his or
her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a
crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
(4) Any heir of full age who, having knowledge of
the violent death of the testator, should fail to
report it to an officer of the law within a month,
unless the authorities have already taken
action; this prohibition shall not apply to cases
wherein, according to law, there is no
obligation to make an accusation;
(5) Any person convicted of adultery or
concubinage with the spouse of the testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence should cause
the testator to make a will or to change one
already made;
(7) Any person who by the same means prevents
another from making a will, or from revoking
one already made, or who supplants, conceals,
or alters the latter's will;
(8) Any person who falsifies or forges a supposed
will of the decedent.
Art. 1033. The cause of unworthiness shall be without
effect if the testator had knowledge thereof at
the time he made the will, or if, having known of
them subsequently, he should condone them in
writing.
Art. 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of
the death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article
1032, it shall be necessary to wait until final
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judgment is rendered, and in the case falling
under No. 4, the expiration of the month allowed
for the report.
If the institution, devise or legacy should be
conditional, the time of the compliance with the
condition shall also be considered.
• NOTE – this 2-fold requirement is to be
met only upon the testator’s death, and this applies not
only to the fiduciary but to the second heir as well.
• Thus, the 2nd heir need not survive the first
heir, if the 2nd heir dies before the first heir, the 2nd
heir’s own heirs merely take his place.
ART. 864. A fideicommissary substitution can
never burden the legitime.
 Legitime passes by strict operation of law, therefore the
testator has no power over it.
ART. 865. Every fideicommisary substitution
must be expressly made in order that it may
be valid.
The fiduciary shall be obliged to deliver
the inheritance to the second heir, without
other deductions than those which arise from
legitimate expenses, credits and
improvements, save in the case where the
testator has provided otherwise.
 FIDEICOMISARIA SHOULD BE EXPRESSLY
IMPOSED.
 2 ways of making an express imposition –
1. By the use of the term fideicommissary or
2. By imposing upon the first heir the absolute
obligation to preserve and to transmit to the
second heir.
 Allowable Deductions
1. GR – fiduciary should deliver property INTACT
and UNDIMINISHED to the fideicommissary heir
upon the arrival of the period.
2. The only Deductions allowed, in the absence
of a contrary provision in the will are –
a) Legitimate expenses – only
necessary and useful expenses and NOT
ornamental expenses
b) Credits
c) Improvements - only necessary and
useful improvements and NOT ornamental
improvements
 Damage or Deterioration to Property
 If caused by a fortuitous event or ordinary wear and
tear – fiduciary is not liable
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 If caused by fiduciary’s fault or negligence –
fiduciary is liable.
ART. 866. The second heir shall acquire a right to
the succession from the time of the testator’s
death, even though he should die before the
fiduciary. The right of the second heir shall
pass to his heirs.
 In connection with Art863 on element of
fideicommissary that both heirs must be living and
disqualified to succeed at the time of the testator’s
death.
 The second heir’s right vests upon the testator’s death,
conformably with Art777 and Art878 since as far as the
second heir is concerned, the institution of him is one
subject to a suspensive term.
 Thus, the second heir does not have to survive the first
heir in order for the substitution to be effective. The
second heir’s own heirs simply take his place by
succeeding to the vested right already possessed by
the second heir.
ART. 867. The following shall not take effect:
(1) Fideicommissary substitutions which
are not made in an express manner,
either by giving them this name, or
imposing upon the fiduciary the
absolute obligation to deliver the
property to a second heir;
(2) Provisions which contain a perpetual
prohibition to alienate, and even a
temporary one, beyond the limit fixed
in article 863.
(3) Those which impose upon the heir the
charge of paying to various persons
successively, beyond the limit
prescribed in article 863, a certain
income or pension;
(4) Those which leave to a person the
whole part of the hereditary property
in order that he may apply or invest
the same according to secret
instructions communicated to him by
the testator.
 Provisions that shall NOT TAKE EFFECT
1. Fideicommissary substitutions which are not
made in an express manner
• Lack of this element does not, by that fact
alone, nullify the institution. It only means
that the institution is not a fideicomisaria.
2. Perpetual prohibition to alienate, and even a
temporary one, beyond the limit fixed in article
863.
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• If there is a fideicomisaria, the limit is the
first heir’s lifetime.
• If there is no fideicomisaria, the limit is 20
years.
3. Imposes upon the heir the charge of paying a
certain income or pension to various persons
successively, beyond the limit prescribed in article
863
• There can only be 2 beneficiaries of the
pension, one after the other, and the
second must be one degree from the first.
But there is no prohibition on
simultaneous beneficiaries.
4. Leave to a person the whole part of the
hereditary property in order that he may apply or
invest the same according to secret instructions
communicated to him by the testator.
• The ostensible heir here is in reality only a
dummy, because in reality, the person
intended to be benefited is the one to
whom the secret instructions refer. The
purpose of such a surreptitious disposition
is to circumvent some prohibition or
disqualification
• This paragraph makes the ENTIRE
PROVISION VOID. The problem is the
difficulty of establishing the fact of
circumvention. Supposing the ostensible
heir conceals or destroys the secret
instructions and claims as heir under the
testamentary provision as worded?
ART. 868. 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.
 If the fideicommissary substitution is void or ineffective,
the institution of the first heir simply becomes pure and
unqualified.
 Nullity or ineffectivity of the institution of the first heir –
article does not provide for a case where it is the
institution of the first heir that is void or ineffective. What
is the rule in such a case?
ART. 869. A provision whereby the testator leaves
to a person the whole or part of the
inheritance, and to another the usufruct, shall
be valid. If he fives the usufruct to various
persons, not simultaneously, but
successively, the provisions of Article 863
shall apply.
 If the testator institutes successive usufructuaries, there
can only be two usufructuaries, one after the other, and
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as to the two of them, all the requisites of Art863 must
be present.
ART. 870. The dispositions of the testator
declaring all or part of the estate inalienable
for more than twenty years are void.
 If the testator imposes a longer period than 20 years,
the prohibition is valid only for 20 years.
 If there is a fideicommissary substitution, this time
limitation will not apply. Rather, Art863 applies, which
allows as a period, the lifetime of the first heir.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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1ST SEM 2006-2007
KINDS OF SUBSTITUTIONS
1. SIMPLE or COMMON
 Causes of Simple Substitution
1) Predecease of the first heir
2) Renunciation of the first heir
3) Incapacity of the first heir
2. BRIEF or COMPENDIOUS
 Distinctions
o Brief – 2 or more substitutes for 1 orig. heir
o Compendious – 1 sub for 2 or more orig.
o However, most commentators use the
terms interchangeably.
 If 1 is substituted for 2 or more original
heirs, default of one but not all of the original
heirs does not lead to substitution but the share
left vacant will accrue to the surviving original
co-heir or co-heirs.
3. RECIPROCAL
 If the heirs in a will are given unequal
shares, and they are reciprocal substitutes of
each other, the substitute shall, in addition to his
given share, acquire the share of the heir who
he is substituting for due to predecease,
renunciation or incapacity.
 The second sentence of Art861 provides
for Proportionate Accrual. If there are more than
1 heir instituted, and they are reciprocally
substituted, the substitutes will acquire the
share of the original heir in the same proportion
as they were given in the testamentary
disposition.
4. FIDEICOMMISSARY
 Elements of a Fideicommissary
1) A 1st heir who takes the property
upon the testator’s death
2) A 2nd heir who takes the property
subsequently from the fiduciary
3) The 2nd heir must be 1 degree
from the first heir
4) Dual obligation imposed upon the
1st heir to:
a. Preserve the property, and
b. To transmit it after the lapse of the
period to the fideicommissary heir.
5) Both heirs must be living and
disqualified to succeed at the time of the
testator’s death.
 Fideicommissary substitution should be
Cases for Articles 857-870
Ramirez v. Ramirez
- Jose Eugenio Ramirez, a Filipino national, died in Spain on
Dec. 11, 1964 with his only his widow as compulsory heir.
- His will was admitted by the CFI and Maria Luisa Palacios
was appointed administratrix of the estate. And she
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submitted an inventory of the estate. (look at the case for the
inventory)
- The administratrix then submitted a project of partition. The
property of the deceased shall be divided to two parts.
- One part shall go to the widow as part of her legitime; the
other part or free portion shall go to Jorge and Roberto
Ramirez. Furthermore, 1/3 of the free portion is charged with
the widow’s usufruct and the remaining 2/3 with a usufruct in
favor of Wanda.
- Jorge and Roberto opposed the project of partition saying
that: (a) provisions for vulgar substitution in favor of Wanda
with respect to the usufructs are invalid because the first
heirs survived the testator; (b) the fideicommissary
substitutions are also invalid because 1st heirs not related to
second heirs within the 1st degree; (c) that the grant of the
usufruct to Wanda violates the constitution.
- Notwithstanding their objections, the lower court approved
the project of partition. Hence this appeal.
WON, the vulgar substitution in favor of Wanda in relation to
the usufructs are void.
- No. With respect to the vulgar substitution in favor of Wanda
in relation to the usufructs, the said substitutions are not
void. Although, Wanda survived the testator or stated
differently because she did not predecease the testator, this
does not avoid the substitution.
- Dying before the testator is not the only case for vulgar
substitution for it also includes refusal or incapacity to accept
the inheritance as provided in Art. 859.
- Hence the vulgar substitution is valid.
WON, the fideicommissary substitutions are valid.
- No. With respect to the fideicommissary, the appellants were
correct in their claim that is void.
- The substitutes are not related to Wanda, the heir originally
instituted. The Civil Code specifically provides that to be
valid, the substitution should not go beyond one degree from
the heir originally instituted.
- Furthermore, there is no absolute duty imposed on Wanda
to transmit the usufruct to the substitutes as required by
Arts. 865 and 867.
- In fact, the testator contradicts the establishment of a
fideicommissary substitution when he permits the proper
subject of the usufruct to be sold upon mutual agreement of
the usufructuaries and naked owners.
WON, the grant of the usufruct to Wanda is void under the
constitution.
- No. With respect to the usufruct in favor of Wanda, albeit a
real right, does not vest title to the land in the usufructuary
and it is the vesting of title to land in favor of aliens which is
proscribed by the Constitution. In this case, no title vests
upon Wanda.
- A vulgar substitution of heirs is valid even if the heir
designated survives the testator; inasmuch as vulgar
substitution can take place also by refusal or incapacity to
inherit of the first heir.
- A fideicommissary substitution is void if first heir is not
related in the 1st degree to the 2nd heir.
- The constitutional provision which allows aliens to acquire
lands by succession does not apply to testamentary
succession.
- An alien may be bestowed usufructuary rights over a parcel
of land in the Philippines.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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Arañas v. Arañas
- Fr. Teodoro Aranas, a priest of the Roman Catholic Church,
died on January 19, 1953. He had executed on June 6, 1946
his Last Will and Testament which was admitted to probate
on August 31, 1956.
- In said Last Will and Testament, Fr. Teodoro Aranas
directed that certain properties acquired by him during his
lifetime be given to his brothers Aniceto and Carmelo.
- He likewise appointed as special administration of the
remainder of the estate Vicente Aranas, a faithful and
serviceable nephew, and designated him also as recipient of
1/2 of the produce of the properties (those parcels of land to
be given to Fr. Aranas’ brothers) after deducting the
expenses for the administration and the other 1/2 of the
produce to be given to the Catholic Church for the eternal
repose of the testator's soul.
- Vicente’s right to enjoy the fruits of the property was to end
upon his death or his refusal to act as administrator.
- Herein Petitioners challenged the validity of the disposition,
relying on Art. 870, which provides: “The dispositions of the
testator declaring all or part of the estate inalienable for
more than twenty years are void.”
Is the disposition in favor of Vicente valid?
- YES. Vicente Aranas as a usufructuary has the right to enjoy
the property of his uncle with all the benefits which result
from the normal enjoyment (or exploitation) of another's
property, with the obligation to return, at the designated time,
either the same thing, or in special cases its equivalent.
- This right of Vicente to enjoy the fruits of the properties is
temporary and therefore not perpetual as there is a limitation
namely his death or his refusal. Likewise his designation as
administrator of these properties is limited by his refusal
and/or death and therefore it does not run counter to Art.
870 of the Civil Code.
- Be it noted that Vicente Aranas is not prohibited to dispose
of the fruits and other benefits arising from the usufruct.
Neither are the naked owners (the other heirs) of the
properties, the usufruct of which has been given to Vicente
prohibited from disposing of said naked ownership without
prejudice of course to Vicente's continuing usufruct.
- To void the designation of Vicente as usufructuary and/or
administrator is to defeat the desire and the dying wish of
the testator to reward him for his faithful and unselfish
services rendered during the time when said testator was
seriously ill or bed-ridden.
- The proviso must be respected and be given effect until the
death or until the refusal to act as such of the instituted
usufructuary/administrator, after which period, the property
can be properly disposed of, subject to the limitations
provided in Art. 863 of the Civil Code concerning a
fideicommissary substitution.
- Article 863: "A fideicommissary substitution by virtue of
which the fiduciary or first heir instituted is entrusted with the
obligation to preserve and to transmit to a second heir the
whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided
further, that the fiduciary or first heir and the second heir are
living at the time of the death of the testator."
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PCIB v. Escolin
SECTION 4 – CONDITIONAL TESTAMENTARY
- Linnie Jane Hodges died in Iloilo leaving a will wherein she DISPOSITIONS AND TESTAMENTARY
bequeathed all of her propertied to her husband, Charles DISPOSITIONS WITH A TERM
Newton Hodges.
- The will contained a disposition saying “at the death of my GENERAL PROVISIONS
said husband, I give, devise and bequeath all of the rest,
residue and remainder of my estate, both real and personal,
wherever situation to be equally dived among my brothers
ART. 871. The institution of an heir may be made
and sisters, share and share alike. conditionally, or for a certain purpose or
- Charles was appointed executor, when he died Joe Hodges cause.
and Fernando Mirasol replaced him, which in turn was
replaced by PCIB pursuant to an agreement of all the heirs
of Hodges.  3 KINDS OF TESTAMENTARY DISPOSITIONS
- The Higdons, composed of brothers and sisters of Linnie 1. Conditional dispositions
now claims their share to her estate. 2. Dispositions with a term
- PCIB, however, contends that there was no substitution in
3. Dispositions with a mode [modal dispositions]
this case and that the testamentary disposition in favor of the
brothers and sisters are inoperative and invalid.
 Inaccuracies in Section heading and wording of this
Whether there is substitution. article
- None. There is no vulgar substitution because there is not  Incomplete Section Heading – should include4
provision in the will for either: 1. predecease of the testator modal dispositions
by the designated heir, 2. refusal or 3. incapacity of the latter  Incomplete wording of Article – does not include
to accept the inheritance as required by art. 859. dispositions with a term
- There is neither a fideicommissary substitution because no
obligation is imposed thereby upon Charles to preserve the  Definitions
estate or any part thereof for anyone else.  CONDITION – defined obliquely in Art1179 par1.
Art. 1179. Every obligation whose
Whether the disposition in favor of the brothers and sisters is performance does not depend upon a
inoperative future or uncertain event, or upon a past
- No. The brothers and sisters of Mrs. Hodges are not event unknown to the parties, is
substitutes for Charles because, under her will, they are not demandable at once.
to inherit what Hodges cannot, would no or may not inherit, Every obligation which contains a
but would inherit what he would not dispose of from his resolutory condition shall also be
inheritance. demandable, without prejudice to the
- Therefore, they are also heirs instituted simultaneously with effects of the happening of the event.
Charles, subject to certain conditions, partially resolutory
insofar as Hodges was concerned and correspondingly
 TERM – defined obliquely in Art1173 pars 1 & 3
suspensive with reference to his brothers and sisters-in-law.
Art. 1193. Obligations for whose fulfillment a
- Hence, while Charles could completely and absolutely
day certain has been fixed, shall be
dispose of her estate during his lifetime, all his rights to what
demandable only when that day comes.
may remain upon his death would then go his brothers and
Obligations with a resolutory period
sisters-in-law.
take effect at once, but terminate upon
- If no obligation is imposed upon the first heir to preserve the
arrival of the day certain.
property and to transmit it to the second heir, then there is
A day certain is understood to be that
no fideicomisaria.
which must necessarily come, although it
may not be known when.
If the uncertainty consists in whether
the day will come or not, the obligation is
conditional, and it shall be regulated by
the rules of the preceding Section.

 MODE – defined obliquely in Art882.

Art. 882. The statement of the object of the
institution, or the application of the
property left by the testator, or the charge
imposed by him, shall not be considered
as a condition unless it appears that such
was his intention.
That which has been left in this
manner may be claimed at once provided

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that the instituted heir or his heirs give
security for compliance with the wishes of
the testator and for the return of anything
he or they may receive, together with its
fruits and interests, if he or they should
disregard this obligation.
 Proper Order of Provisions in this Section
1. General provisions – Arts 871 and 872
2. Conditions – Arts 873, 874, 875, 876, 877, 883
par. 2, 879, 880, 881 and 884
3. Terms – Arts 878 and 885
4. Modes – Arts 882 and 883 par.1
GENERAL PROVISIONS
 Art871 – The right of the testator to impose conditions,
terms or modes springs from testamentary freedom. If
he has the right to dispose of his estate mortis causa,
then he has the right to make the disposition subject to
a condition, term or mode.
ART. 872. The testator cannot impose any charge,
condition or substitution whatsoever upon
the legitimes prescribed in this Code. Should
he do so, the same shall be considered as not
imposed.
 The legitime passes by strict operation of law,
independent of the testator’s will. This article is a logical
consequence of that principle.
 This article is echoed by Art904 par2.
DISPOSITION WITH CONDITIONS
– MAY BE BOTH RESOLUTORY
OR SUSPENSIVE.
ART. 873. Impossible conditions and those
contrary to law or good customs shall be
considered as not imposed and shall in no
manner prejudice the heir, even if the testator
should otherwise provide.
 The impossible or illegal condition is simply considered
as not written. The testamentary disposition itself is not
annulled; on the contrary it becomes PURE.
 The rule on Donations is the same. – considered as not
imposed
 Art. 727. Illegal or impossible conditions in simple
and remuneratory donations shall be considered as
not imposed.
 On the other hand, the rule in Obligations is different. –
annuls the obligation
 Art. 1183. Impossible conditions, those contrary to
good customs or public policy and those prohibited
by law shall annul the obligation which depends
upon them. If the obligation is divisible, that part
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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1ST SEM 2006-2007
thereof which is not affected by the impossible or
unlawful condition shall be valid.
The condition not to do an impossible thing
shall be considered as not having been agreed
upon.
 Reason for difference in rule
 Testamentary dispositions and donations are both
gratuitous and spring from the grantor’s liberality.
The imposition of a condition does not displace
liberality as the basis of the grant.
 On the other hand, in obligations which are
onerous, the condition that is imposed becomes an
integral part of the causa of the obligation. The
elimination of that condition for being impossible or
illegal results in a failure of cause.
ART. 874. An absolute condition not to contract a
first or subsequent marriage shall be
considered as not written unless such
condition has been imposed on the widow or
widower by the deceased spouse or by the
latter’s ascendants or descendants.
Nevertheless, the right of usufruct, or an
allowance or some personal prestation may
be devised or bequeathed to any person for
the time during which he or she should
remain unmarried or in widowhood.
 Conditions prohibiting marriage
 If a first marriage is prohibited – condition always
considered as not imposed
 If subsequent marriage is prohibited
1. If imposed by the deceased spouse or by
his/her ascendants or descendants – valid
2. If imposed by anyone else – considered as not
written
 The 2nd paragraph of the article may provide the
testator, if he so desires, a means of terminating the
testamentary benefaction should the heir contract
marriage, even a first one. The wording of the
disposition will be crucial, it should not be so worded as
to constitute a prohibition forbidden in the first
paragraph.
 Necessity of Caución Muciana – since this condition,
assuming it is validly imposed, is NEGATIVE in nature,
a Caución Muciana is required, as in Art879.
 Condition to contract marriage – This article does not
prohibit the imposition of a condition to marry, either
with reference to a particular person or not.
 Neither does this article declare void a relative
prohibition.
ART. 875. Any disposition made upon the
condition that the heir shall make some
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provision in favor of the latter of the testator
or of any other person shall be void.
 Scriptura Captatoria – Legacy-hunting dispositions,
whether to heirs or legatees, are void.
 Reasons for the Prohibition
1. The captatoria converts testamentary grants
into contractual transactions
2. It deprives the heir of testamentary freedom
3. It gives the testator the power to dispose
mortis causa not only of his property but also
of his heir’s.
 What is declared void – it is not merely the condition
that is declared void but the testamentary disposition
itself which contains the condition.
ART. 876. Any purely potestative condition
imposed upon an heir must be fulfilled by him
a soon as he learns of the testator’s death.
This rule shall not apply when the
condition, already complied with, cannot be
fulfilled again.
ART. 877. If the condition is casual or mixed, it
shall be sufficient if it happen or be fulfilled at
any time before or after the death of the
testator, unless he has provided otherwise.
Should it have existed or should it have
been fulfilled at the time the will was executed
and the testator was unaware thereof, it shall
be deemed as complied with.
If he had knowledge thereof, the condition
shall be considered fulfilled only when it is of
such a nature that it can no longer exist or be
complied with again.
ART. 883, par. 2. If the person interested in the
condition should prevent its fulfillment,
without the fault of the heir, the condition
shall be deemed to have been complied with.
ART. 879. If the potestative condition imposed
upon the heir is negative or consists in not
doing or not giving something, he shall
comply by giving a security that he will not do
or give that which has been prohibited by the
testator, and that in case of contravention he
will return whatever he may have received,
together with its fruits and interests.
 These articles govern POTESTATIVE, CASUAL and
MIXED conditions.
1. Potestative Conditions – one that depends
solely on the will of the heir/devisee/legatee.
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2. Casual Condition – one that depends on the
will of a third person or on chance
3. Mixed Condition – one that depends partly on
the will of the heir/devisee/legatee and partly
either on the will of a third person or chance.
 RULES ON POTESTATIVE, CASUAL AND MIXED
CONDITIONS
A. POTESTATIVE
• Positive – to do something
a) GR – must be fulfilled as soon as the
heir learns of the testator’s death
b) E – if the condition was already
complied with at the time the heir learns
of the testator’s death, and the condition
is of such a nature that it cannot be
fulfilled again.
c) Constructive compliance – Art883
par2 – condition is deemed fulfilled.
• Negative – not to do something
a) Heir must give security to guarantee
[caucion muciana] the return of the value
of the property, fruits, and interests, in
case of contravention.
b) 3 Instances when a Caucion Muciana
is Required
 Art879 – if the potestative
conditions is negative
 Art885 par2 - The designation of
the day or the time when the
effects of the institution of an heir
shall commence
 Art882 – When there is a
statement of the object of the
institution, or the application of the
property left by the testator, or the
charge imposed by him.
B. CASUAL or MIXED
• GR – may be fulfilled at any time, before
or after the testator’s death, unless the
testator provides otherwise.
• QUALIFICATIONS – if already fulfilled at
the time of the execution of the will
a) If testator UNAWARE of fulfillment –
deemed fulfilled
b) If testator was AWARE of fulfillment
 Can no longer be fulfilled again –
deemed fulfilled
 Can be fulfilled again – must be
fulfilled again
• Constructive Compliance - Art883 par2
a) If casual – not applicable
b) If mixed
 If dependent partly on chance –
not applicable
 If dependent partly on will of a
third party
• If interested 3rd party –
applicable
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• If not an interested party – not
applicable
ART. 880. If the heir be instituted under a
suspensive condition or term the estate shall
be placed under administration until the
condition is fulfilled, or until it becomes
certain that it cannot be fulfilled, or until the
arrival of the term.
The same shall be done if the heir does
not give the security required in the
preceding article.
ART. 881. The appointment of the administrator
of the estate mentioned in the preceding
article, as well as the manner of
administration and the rights and obligations
of the administrator shall be governed by the
Rules of Court.
 Between the time of the testator’s death and the time of
the fulfillment of the suspensive condition or of the
certainty of its non-occurrence – property is to be
placed under administration.
1. If condition happens – the property will be
turned over to the instituted heir
2. If it becomes certain that condition will not
happen – property will be turned over to a
secondary heir [if there is one] or to the
intestate heirs, as the case may be.
 Not applicable to institutions with a TERM – despite the
wording of the article, it should not be applied to
institutions with a term, which are governed by Art885
par 2. Otherwise, there will be an irreconcilable conflict
with that article, which mandates that before the arrival
of the term, the property should be given to the legal
heirs.
nd
 2 paragraph – the property shall be in the executor’s
or administrator’s custody until the heir furnishes the
caucion muciana.
 Procedural rules governing appointment of
administrator – Rules 77-90 RoC.
ART. 884. Conditions imposed by the testator
upon the heirs shall be governed by the rules
established for conditional obligations in all
matters not provided for by this Section.
 Suppletorily governing conditional institutions are
Articles 1179 and 1192 on conditional obligations.
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Art. 1179. Every obligation whose performance does
not depend upon a future or uncertain event, or
upon a past event unknown to the parties, is
demandable at once.
Every obligation which contains a resolutory
condition shall also be demandable, without
prejudice to the effects of the happening of the
event.
Art. 1180. When the debtor binds himself to pay when
his means permit him to do so, the obligation shall
be deemed to be one with a period, subject to the
provisions of Article 1197.
Art. 1181. In conditional obligations, the acquisition of
rights, as well as the extinguishment or loss of
those already acquired, shall depend upon the
happening of the event which constitutes the
condition.
Art. 1182. When the fulfillment of the condition
depends upon the sole will of the debtor, the
conditional obligation shall be void. If it depends
upon chance or upon the will of a third person, the
obligation shall take effect in conformity with the
provisions of this Code.
Art. 1183. Impossible conditions, those contrary to
good customs or public policy and those prohibited
by law shall annul the obligation which depends
upon them. If the obligation is divisible, that part
thereof which is not affected by the impossible or
unlawful condition shall be valid.
The condition not to do an impossible thing shall
be considered as not having been agreed upon.
Art. 1184. The condition that some event happen at a
determinate time shall extinguish the obligation as
soon as the time expires or if it has become
indubitable that the event will not take place.
Art. 1185. The condition that some event will not
happen at a determinate time shall render the
obligation effective from the moment the time
indicated has elapsed, or if it has become evident
that the event cannot occur.
If no time has been fixed, the condition shall be
deemed fulfilled at such time as may have probably
been contemplated, bearing in mind the nature of
the obligation.
Art. 1186. The condition shall be deemed fulfilled
when the obligor voluntarily prevents its fulfillment.
Art. 1187. The effects of a conditional obligation to
give, once the condition has been fulfilled, shall
retroact to the day of the constitution of the
obligation. Nevertheless, when the obligation
imposes reciprocal prestations upon the parties, the
fruits and interests during the pendency of the
condition shall be deemed to have been mutually
compensated. If the obligation is unilateral, the
debtor shall appropriate the fruits and interests
received, unless from the nature and circumstances
of the obligation it should be inferred that the
intention of the person constituting the same was
different.
In obligations to do and not to do, the courts shall
determine, in each case, the retroactive effect of
the condition that has been complied with.
Art. 1188. The creditor may, before the fulfillment of
the condition, bring the appropriate actions for the
preservation of his right.
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The debtor may recover what during the same

time he has paid by mistake in case of a suspensive
condition.
Art. 1189. When the conditions have been imposed
with the intention of suspending the efficacy of an
obligation to give, the following rules shall be
observed in case of the improvement, loss or
deterioration of the thing during the pendency of
the condition:
(1) If the thing is lost without the fault of the
debtor, the obligation shall be extinguished;
(2) If the thing is lost through the fault of the
debtor, he shall be obliged to pay damages; it
is understood that the thing is lost when it
perishes, or goes out of commerce, or
disappears in such a way that its existence is
unknown or it cannot be recovered;
(3) When the thing deteriorates without the fault
of the debtor, the impairment is to be borne by
the creditor;
(4) If it deteriorates through the fault of the
debtor, the creditor may choose between the
rescission of the obligation and its fulfillment,
with indemnity for damages in either case;
(5) If the thing is improved by its nature, or by
time, the improvement shall inure to the
benefit of the creditor;
(6) If it is improved at the expense of the debtor,
he shall have no other right than that granted
to the usufructuary. (1122)
Art. 1190. When the conditions have for their purpose
the extinguishment of an obligation to give, the
parties, upon the fulfillment of said conditions, shall
return to each other what they have received.
In case of the loss, deterioration or improvement
of the thing, the provisions which, with respect to
the debtor, are laid down in the preceding article
shall be applied to the party who is bound to return.
As for the obligations to do and not to do, the
provisions of the second paragraph of Article 1187
shall be observed as regards the effect of the
extinguishment of the obligation.
Art. 1191. The power to rescind obligations is implied
in reciprocal ones, in case one of the obligors
should not comply with what is incumbent upon
him.
The injured party may choose between the
fulfillment and the rescission of the obligation, with
the payment of damages in either case. He may
also seek rescission, even after he has chosen
fulfillment, if the latter should become impossible.
The court shall decree the rescission claimed,
unless there be just cause authorizing the fixing of
a period.
This is understood to be without prejudice to the
rights of third persons who have acquired the thing,
in accordance with Articles 1385 and 1388 and the
Mortgage Law.
Art. 1192. In case both parties have committed a
breach of the obligation, the liability of the first
infractor shall be equitably tempered by the courts.
If it cannot be determined which of the parties first
violated the contract, the same shall be deemed
extinguished, and each shall bear his own damages.
DISPOSITION WITH TERMS
ART. 878. A disposition with a suspensive term
does not prevent the instituted heir from
acquiring his rights and transmitting them to
his heirs even before the arrival of the term.
 When the heir’s right vests – in dispositions with a term,
the heir’s right vests upon the testator’s death,
conformably with Art777. Therefore, should the heir die
before the arrival of the suspensive term, he merely
transmits his right to his own heirs who can demand the
property when the term arrives.
 The rule in this article is similar to Art866 in
fideicommissary substitutions.
 The rule in conditional institutions – what is the rule if
the instituted heir dies before the happening of the
condition? The section is silent on this matter. But
under Art1034, par3, “if the institution, devise or legacy
should be conditional, the time of the compliance with
the condition shall also be considered.
 The import is that in conditional institutions, the heir
should be Living and Qualified to succeed BOTH at
the time of the testator’s death and at the time of
the happening of the condition.
ART. 885. The designation of the day or the time
when the effects of the institution of an heir
shall commence or cease shall be valid.
In both cases, the legal heir shall be
considered as called to the succession until
the arrival of the period or its expiration. But
in the first case he shall not enter into
possession of the property until after having
given sufficient security, with the intervention
of the instituted heir.
 If term is Suspensive – before the arrival of the term,
the property should be delivered to the intestate heirs.
A caucion muciana has to be posted by them. This is
the 2nd instance where a caucion muciana is required to
be posted.
 If term is Resolutory – before the arrival of the term, the
property should be delivered to the instituted heir. No
caucion muciana is required.
DISPOSITION WITH MODES
ART. 882. The statement of the object of the
institution, or the application of the property
left by the testator, or the charge imposed by

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him, shall not be considered as a condition
unless it appears that such was his intention.
That which has been left in this manner
may be claimed at once provided that the
instituted heir or his heirs give security for
compliance with the wishes of the testator
and for the return of anything he or they may
receive, together with its fruits and interests,
if he or they should disregard this obligation.
 The 1st paragraph defines a mode obliquely. A mode is
an obligation imposed upon the heir, without
suspending the effectivity of the institution [which a
condition does].
 A mode must be clearly imposed as an obligation
in order to be considered as one. Mere preferences
or wishes expressed by the testator are not modes.
 A mode functions similarly to a resolutory condition.
In fact, modes could very well have been absorbed
by the concept of resolutory conditions.
 Caucion Muciana – should be posted by the instituted
heir [3rd instance of caucion muciana]
CASE
Rabadilla v. CA
- In the codicil of Aleja Belleza, appended to her last will and
testament, Dr. Jorge Rabanilla was instituted as a devisee
of parcel of land.
- The said codicil contained the following provisions:
o That should Jorge die ahead of the testator, the property
shall be inherited by the children and spouse;
o That if ownership of the property is transmitted to Jorge,
he shall have the obligation until he dies to give to Maria
Belleza 75 piculs of export sugar and 25 piculs of
domestic sugar until the said Maria dies;
o That in case of Jorge’s death, his hears shall be imposed
the same obligation;
o That if the heir shall later sell, lease, mortgage the said
lot, the buyer, lessee, mortgagee shall have also the
obligation to deliver yearly 100 piculs of sugar to Maria;
and
o That should the buyer, lessee or the mortgagee fails to
respect Aleja’s command, Maria shall immediately seize
the lot and turn it over to Aleja’s near descendants and
the latter shall have the same obligation of delivering 100
piculs of sugar to Maria.
- For alleged violations of the codicil, Maria filed a complaint
against Jorge’s heirs and asked for the property to be
reconveyed to the near descendants of Aleja on that
ground that:
o the lot was mortgaged to PNB and Republic Planters
Bank, not a near descendant of Aleja;
o the heirs failed to deliver the sugar; and
o the banks failed to comply with the obligation to deliver
sugar to Maria.
- The RTC dismissed the case.
- On appeal, CA set aside the decision of RTC and ordered
that the heirs of Jorge reconvey title over the lot with its
fruits and interests.
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- Hence, this appeal.
Whether Article 882 applies in this case. (Petitioner maintains
that Article 882 does not apply as there was no modal
institution and the testatrix intended a mere simple substation
– Jorge was to be substituted by Aleja’s near descendants
should there be noncompliance with the obligation to deliver
the sugar to Maria.)
- YES. The SC held that the CA erred in not ruling that the
institution of Jorge under the codicil is in the nature of a
modal institution.
- The codicil does not imply substitution. In simple
substitutions, the 2nd heir takes the inheritance in default of
the first heir by reason of incapacity, predecease or
renunciation. In this case, the provisions of the codicil do
not provide that should Jorge default due to predecease,
incapacity or renunciation, the testatrix’s near descendants
would substitute him. What the codicil provides is that
should Jorge or his heirs not fulfill the conditions imposed,
the property shall be seized and turned over to Aleja’s near
descendants.
- In this case, Aleja did not make Jorge’s inheritance and the
effectivity of his institution as a devisee dependent upon on
the performace of the said obligation.
- It is clear, though, that should the obligation be not
complied with, the property shall be turned over to the
Aleja’s near descendants.
- The manner of institution of Jorge is evidently modal in
nature because it imposes a charge upon the instituted heir
without, however, affecting the efficacy of such institution.
- Also, since testamentary dispositions are generally acts of
liberality, an obligation imposed upon the heir should not be
considered a condition unless it clearly appears from the
Will itself that such was the intention of the testator. In case
of doubt, the institution should be considered as modal
and not condition.
- The SC affirmed the decision of the CA.
- Articles 882 and 883 of the NCC.
- The institution of an heir in the manner prescribed in Article
882 is what is known in the law of succession as an
institucion sub modo or modal institution.
- In a modal institution, the testator states:
o the object of the institution;
o the purpose or application of the property left by the
testator; or
o the charge imposed by the testator upon the heir.
- A “mode” imposes an obligation upon the heir or legatee
but it does not affect the efficacy of his rights to the
succession.
- In a conditional testamentary disposition, the condition
must happen or be fulfilled in order for the heir to be entitled
to succeed the testator. The condition suspends but does
not obligate; and the mode obligates but does not suspend.
To some extent, it is similar to a resolutory condition.
- Since testamentary dispositions are generally acts of
liberality, an obligation imposed upon the heir should not be
considered a condition unless it clearly appears from the
Will itself that such was the intention of the testator. In case
of doubt, the institution should be considered as modal
and not condition.
- A will cannot be subject of a compromise agreement which
would thereby defeat the very purpose of making a will.
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ART. 883 par1. When without the fault of the heir,
an institution referred to in the preceding
article cannot take effect in the exact manner
stated by the testator, it shall be complied
with in a manner most analogous to and in
conformity with his wishes.
 The intention of the testator should always be the
guiding norm in determining the sufficiency of the
analogous performance.
SECTION 5 – LEGITIME
 System of Legitimes – our successional system, closely
patterned after that of the Spanish Code, reserves a
portion of the net estate of the decedent in favor of
certain heirs, or groups of heirs or combination of heirs.
 The portion that is so reserved is called the LEGITIME.
 The portion that is left available for testamentary
disposition after the legitimes have been covered is the
free or disposable portion.
 The heirs for whom the law reserves a portion are
called compulsory heirs.
 Nature of Legitimes – the legitimes are set aside by
mandate of law. Thus, the testator is required to set
aside or reserve them. Otherwise stated, the testator is
prohibited from disposing by gratuitous title, either inter
vivos or mortis causa, of these legitimes. Dispositions
by onerous title are not prohibited because in theory,
nothing is lost from the estate in an onerous disposition,
since there is merely an exchange of values.
 Because the testator is compelled to set aside the
legitimes, the heirs in whose favor the legitimes are set
aside are called compulsory heirs. The compulsion is
not on the part of the heirs, who are free to accept or
reject the inheritance, but on the part of the testator.
 Major changes in the law of legitimes
1. Abolition of the major or betterment in the
Spanish Code
2. The surviving spouse’s share is upgraded from
a usufructuary interest to full ownership, albeit a
very variable share.
3. The grant of legitimary rights to children
classified under the New Civil Code as illegitimate
other than natural or spurious, and further change
under the Family Code abolishing the distinction
between natural and spurious children and giving
all illegitimate children the same legitimary shares.
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Case for Arts 871-885
Miciano v. Brimo
- The subject of this case is the partition of the estate of the
late Joseph Brimo.
- Miciano, the appointed judicial administrator, filed a partition
scheme.
- Andre Brimo, one of Joseph’s borthers, opposed stating that
the partition was not in accordance with Turkish laws,
Jospeh being a Turkish citizen.
- Andre contends that this was void because the Civil Code
states that legal and testamentary successions shall be
governed by the national law of the person whose
succession is in question.
- Andre was excluded from as a legatee because of a clause
in the will where Joseph wished that his property be
distributed in accordance with Philippine laws, and any
legatee who fails to comply with this would be prevented
from receiving his legacy.
- Since the institution of legatees was conditioned upon
Joseph’s wish, it is claimed that Andre is excluded by
questioning the validity of applying Philippine laws in the
partition of the estate (which was against his brother’s wish).
WON Andre Brimo can be validly excluded as a legatee.
- NO. The condition imposed by the will of the testator is
contrary to law because it ignores the testator’s national
law, when according to the Civil Code, such national law of
the testator is to govern his testamentary dispositions.
- As such, the condition is considered unwritten and the
institution of legatees in the will is unconditional and
consequently valid and effective even as to Andre.
- The remaining clauses of the will are valid despite the nullity
of the clause stating that the testator’s testamentary
dispositions be governed by Philippine laws.
- Art. 792, (Old) Civil Code: Impossible conditions and those
contrary to law or good morals shall be considered as not
imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise
provide.
ART. 886. Legitime is that part of the testator's
property which he cannot dispose of because
the law has reserved it for certain heirs who
are, therefore, called compulsory heirs.
 This article gives the statutory definition of legitime.
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ART. 887. The following are compulsory heirs:
1) Legitimate children and
descendants, with respect to their
legitimate parents and ascendants;
2) In default of the foregoing,
legitimate parents and ascendants, with
respect to their legitimate children and
descendants;
3) The widow or widower;
4) Acknowledged natural children,
and natural children by legal fiction;
5) Other illegitimate children referred
to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4,
and 5 are not excluded by those in Nos. 1 and
2; neither do they exclude one another.
In all cases of illegitimate children, their
filiation must be duly proved.
The father or mother of illegitimate
children of the three classes mentioned, shall
inherit from them in the manner and to the
extent established by this Code.
 This article enumerates the compulsory heirs. The
enumeration is EXCLUSIVE and may be classified as
follows:
1. Primary compulsory heirs – legitimate children
and / or descendants
• So called because they are preferred
over, and exclude the secondary heirs.
2. Secondary compulsory heirs – legitimate
parents and / or ascendants ; illegitimate parents
• So called because they receive legitimes
only in default of the primary heirs.
• Legitimate parents/ascendants – only in
default of legitimate children/
descendants.
• Illegitimate parents – only in default of any
kinds of children/descendants.
3. Concurring compulsory heirs – surviving
spouse; illegitimate children and / or descendants
• So called because they succeed as
compulsory heirs together with primary or
secondary heirs, except only that
illegitimate children / descendants exclude
illegitimate parents.
 THE COMPULSORY HEIRS
 LEGITIMATE CHILDREN / DESCENDANTS
1. Legitimate Children – specified in Arts164 and
54 of the Family Code. Legitimated children
fall under this classification [Art179 FC]. The
law does not specify how the legitimate
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children should share in the legitime. However,
they will share EQUALLY regardless of age,
sex or marriage of origin.
2. Legitimate Descendants – the GR is the
nearer exclude the more remote. Thus,
children, if all qualified, will exclude
grandchildren and so on. The qualification to
this rule is representation when proper.
 LEGITIMATE PARENTS / ASCENDANTS
1. Legitimate Parents
2. Legitimate Ascendants – Only in default of
parents. The rule – absolute in the ascending
line – is that the nearer exclude the more
remote. [Arts889-890]
 SURVIVING SPOUSE
1. The spouse of the decedent, not the spouse of
a child who has predeceased the decedent.
2. Marriage between the decedent and his/her
surviving spouse must be either VALID or
VOIDABLE. If voidable, there should have
been no final decree of annulment at the time
of the decedent’s death.
• Question – if the consort dies during the
pendency of a petition for declaration of
nullity under Art36 or for nullity under
Art40 of the FC, should the proceedings
be dismissed or should they proceed?
• Mere estrangement is not a ground for the
disqualification of the surviving spouse as
heir.
• Effect of Decree of Legal Separation
a) On the offending spouse –
disqualification
b) On the innocent spouse - nothing
• Death of either spouse during pendency
of a petition for Legal Separation –
Dismissal of the Case.
 ILLEGITIMATE CHILDREN / DESCENDANTS
1. Illegitimate Children – Family Code has
abolished the distinction between natural and
spurious children and gives all of them –
indiscriminately called illegitimate children –
equal legitimary portions. However, pursuant
to Art777, if death occurred before effectivity of
the Family Code on August 3, 1988, the old
distinctions will apply and the spurious child
gets only 4/5 of the share of the natural child.
[Art895]
2. Illegitimate Descendants – Same rule applies
as in the legitimate descending line, the nearer
exclude the more remote, without prejudice to
representation when proper.
It should be noted that the illegitimate
child can be represented by both legitimate
and illegitimate descendants, as distinguished
from the legitimate child, who can be
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represented only by legitimate descendants.

[Art902 and 992]

 ILLEGITIMATE PARENTS
1. Unlike the legitimate ascending line, which
includes ascendants in whatever degree, the
illegitimate ascending line only includes the
parents, it does not go beyond the parents.
2. The illegitimate parents are secondary heirs of
a lower category that legitimate parents,
because the illegitimate parents are excluded
by legitimate and illegitimate children [Art903]
whereas legitimate parents are excluded only
by legitimate children/ descendants.

 Variations in the Legitimary Portions

 The legitimary system of the Philippine Code rests
on a double foundation – EXCLUSION and
CONCURRENCE.

 GENERAL RULE – there is a basic amount of ½ that is

given to one heir or one group of heirs. This General
Rule admits only of 3 EXCEPTIONS:
1. Art894 – surviving spouse and illegitimate
children
2. Art900 par2 – surviving spouse in a marriage
in articulo mortis, with the conditions specified
in that article
3. Art903 – surviving spouse and illegitimate
parents.

 The term “legitimate child” or “legitimate children”

includes a legally adopted child under Sec18 of
RA8552 or the Domestic Adoption Act of 1998.

 Question – Is an adopted child entitled to a legitime

from his biological parents or ascendants? Uncertain.
 Art189[3] of the FC provides that the adopted shall
remain an intestate heir of his parents and other
blood relatives.
 Thus, the adopted child was entitled to a legitime
BOTH from his adopter and his biological parents.
 But now, the law is silent and it neither gives nor
denies an adopted child the right to a legitime from
his biological parents.
 Sec16 of the law provides that “all legal ties
between the biological parents and the adoptee
shall be severed” but that is unavailing to answer
the question because sec16 only has to do with
parental authority.

 The term “legitimate child” or “legitimate children” shall,

in proper cases, include legitimate descendants other
than children.

 The term “legitimate parents” includes, in proper cases,

legitimate ascendants other than parents.

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DIFFERENT COMBINATIONS OF COMPULSORY HEIRS

CODE COMBINATION SHARE CODAL PROVISION NOTES
LC Legitimate ½ of estate Art. 888. The legitime of Adopted Child has the same
Children Alone divided equally legitimate children and rights as LC
[Art888] descendants consists of one- If there is more than 1 legitimate
half of the hereditary estate of child, the ½ of the estate shall
the father and of the mother. be divided equally among them.
The latter may freely dispose of If there are legitimate children
the remaining half, subject to and grandchildren, the nearer
the rights of illegitimate descendants exclude the farther,
children and of the surviving so as long as there are
spouse as hereinafter provided. legitimate children, the
grandchildren cannot inherit.
If legitimate children
PREDECEASE the testator or are
INCAPACITATED to inherit, the
grandchildren get their
respective parents’ [the
legitimate children] shares by
virtue of REPRESENTATION.
But if ALL the legitimate children
RENOUNCE, the grandchildren
inherit in their own right and the
½ estate is divided equally
among them.
But if only a few of the legitimate
children RENOUNCE or not all
renounce, the share of those
who renounce accrue to the
other legitimate children.
1LCSS One Legitimate ½ of the estate Art. 892. If only one legitimate
Child and to the child or descendant of the
Surviving legitimate child deceased survives, the widow
Spouse ¼ of the estate or widower shall be entitled to
to the surviving one-fourth of the hereditary
spouse [taken estate. In case of a legal
from the free separation, the surviving
spouse may inherit if it was the
disposable
deceased who had given cause
portion of the
for the same.
estate] If there are two or more
[Art892 par1] legitimate children or
descendants, the surviving
spouse shall be entitled to a
portion equal to the legitime of
each of the legitimate children
or descendants.
In both cases, the legitime of
the surviving spouse shall be
taken from the portion that can
be freely disposed of by the
testator.

LCSS Legitimate ½ of estate to Art. 892. If only one legitimate LEGAL SEPARATION between the
Children and legitimate child or descendant of the testator and the surviving
Surviving children deceased survives, the widow spouse
Spouse Share equal to or widower shall be entitled to If there is a final decree of legal
that of 1 child one-fourth of the hereditary separation

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for the estate. In case of a legal 1. surviving spouse is

surviving separation, the surviving the innocent party – he/she
spouse [taken spouse may inherit if it was the gets her legitime [Art63
from the free deceased who had given cause par4 FC]
disposable for the same. 2. surviving spouse is
portion of the If there are two or more the offending spouse –
estate] legitimate children or he/she is disqualified from
descendants, the surviving inheriting [Art63 par4 FC]
[Art892par2]
spouse shall be entitled to a If after the final decree of legal
portion equal to the legitime of separation there was a
each of the legitimate children reconciliation between the
or descendants. parties, the reciprocal right to
In both cases, the legitime of succeed is restored because
the surviving spouse shall be reconciliation sets aside the
taken from the portion that can decree [Art66 par2 FC]
be freely disposed of by the
testator.

LCIC Legitimate ½ of estate to Illegitimate child only gets half

Children and the legitimate the share of a legitimate child. In
Illegitimate children case total of the shares of all
Children ½ of the share illegitimate children exceed the
of 1 legitimate amount of the estate, their
child to the shares shall be reduced equally.
illegitimate The shares of the legitimate
children cannot be reduced.
children
[Art176 FC]

CODE COMBINATION SHARE CODAL PROVISION NOTES

1LCICSS One legitimate ½ of estate to Art. 895. The legitime of each of In case total of the shares of all
child, illegitimate legitimate the acknowledged natural illegitimate children exceed the
children and children children and each of the natural amount of the estate, their
surviving Each children by legal fiction shall shares shall be reduced equally.
spouse illegitimate consist of one-half of the The shares of the legitimate
child will get ½ legitime of each of the legitimate children and the surviving
of the share of children or descendants. spouse cannot be reduced.
The legitime of an illegitimate
a legitimate
child who is neither an
child
acknowledged natural, nor a
¼ of estate to natural child by legal fiction,
the surviving shall be equal in every case to
spouse, whose four-fifths of the legitime of an
share is acknowledged natural child.
preferred over The legitime of the illegitimate
those of the children shall be taken from the
illegitimate portion of the estate at the free
children, which disposal of the testator, provided
shall be that in no case shall the total
reduced if legitime of such illegitimate
necessary children exceed that free
[Art895] portion, and that the legitime of
the surviving spouse must first
be fully satisfied.

LCICSS Legitimate ½ of estate to Art. 895. The legitime of each of In case total of the shares of all
children, legitimate the acknowledged natural illegitimate children exceed the
illegitimate children children and each of the natural amount of the estate, their
children and Each children by legal fiction shall shares shall be reduced equally.
surviving illegitimate consist of one-half of the The shares of the legitimate
spouse child will get ½ legitime of each of the legitimate children and the surviving
of the share of children or descendants. spouse cannot be reduced.
The legitime of an illegitimate

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one legitimate child who is neither an

child acknowledged natural, nor a
A share equal natural child by legal fiction,
to that of 1 shall be equal in every case to
legitimate child four-fifths of the legitime of an
for the acknowledged natural child.
surviving The legitime of the illegitimate
children shall be taken from the
spouse, whose
portion of the estate at the free
share is
disposal of the testator, provided
preferred over that in no case shall the total
those of the legitime of such illegitimate
illegitimate children exceed that free
children which portion, and that the legitime of
shall be the surviving spouse must first
reduced if be fully satisfied.
necessary.
[Art895]
LP Legitimate ½ of estate Art. 889. The legitime of There is NO RIGHT OF
parents alone [Art889] legitimate parents or ascendants REPRESENTATION in the
consists of one-half of the Ascending Line.
hereditary estates of their If the one of the legitimate
children and descendants. parents PREDECEASE or is
The children or descendants may INCAPACITATED to inherit,
freely dispose of the other half, his/her share accrues to the
subject to the rights of other parent [tama ba?]
illegitimate children and of the
surviving spouse as hereinafter
provided.

LPIC Legitimate ½ of estate to Art. 896. Illegitimate children For the illegitimate children or
parents and legitimate who may survive with legitimate descendants, the sharing shall
illegitimate parents parents or ascendants of the depend on whether death
children ¼ of estate to deceased shall be entitled to occurred before or during the
illegitimate one-fourth of the hereditary effectivity of the Family Code.
children estate to be taken from the
portion at the free disposal of
the testator.

LPSS Legitimate ½ of estate to Art. 893. If the testator leaves no

parents and legitimate legitimate descendants, but
surviving parents leaves legitimate ascendants,
spouse ¼ of estate to the surviving spouse shall have a
surviving right to one-fourth of the
spouse hereditary estate.
This fourth shall be taken from
the free portion of the estate.

CODE COMBINATION SHARE CODAL PROVISION NOTES

LPICSS Legitimate ½ of estate Art. 899. When the widow or For the illegitimate children or
parents to the widower survives with legitimate descendants, the sharing shall
illegitimate legitimate parents or ascendants and with depend on whether death
children and parents illegitimate children, such occurred before or during the
surviving ¼ of estate surviving spouse shall be entitled effectivity of the Family Code.
spouse to the to one-eighth of the hereditary
illegitimate estate of the deceased which must
be taken from the free portion, and
children
the illegitimate children shall be
1/8 of estate
entitled to one-fourth of the estate
to the

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surviving which shall be taken also from the

spouse disposable portion. The testator
may freely dispose of the
remaining one-eighth of the
estate.
SS Surviving ½ of the estate Art. 900. If the only survivor is the
spouse alone or 1/3 if the widow or widower, she or he shall
marriage, be entitled to one-half of the
being in hereditary estate of the deceased
articulo mortis, spouse, and the testator may
falls under freely dispose of the other half.
Art900 par 2 If the marriage between the
[Art900par1] surviving spouse and the testator
was solemnized in articulo mortis,
and the testator died within three
months from the time of the
marriage, the legitime of the
surviving spouse as the sole heir
shall be one-third of the hereditary
estate, except when they have
been living as husband and wife
for more than five years. In the
latter case, the legitime of the
surviving spouse shall be that
specified in the preceding
paragraph.
SSIC Surviving 1/3 of estate to Art. 894. If the testator leaves For the illegitimate children or
spouse and surviving illegitimate children, the surviving descendants, the sharing shall
illegitimate spouse spouse shall be entitled to one- depend on whether death
children 1/3 of estate to third of the hereditary estate of occurred before or during the
illegitimate the deceased and the illegitimate effectivity of the Family Code.
children children to another third. The
remaining third shall be at the free
disposal of the testator.
SSIP Surviving ¼ of estate to Art. 903. The legitime of the
spouse and surviving parents who have an illegitimate
illegitimate spouse child, when such child leaves
parents ¼ of estate to neither legitimate descendants,
illegitimate nor a surviving spouse, nor
parents illegitimate children, is one-half of
[Art903] the hereditary estate of such
illegitimate child. If only legitimate
or illegitimate children are left, the
parents are not entitled to any
legitime whatsoever. If only the
widow or widower survives with
parents of the illegitimate child,
the legitime of the parents is one-
fourth of the hereditary estate of
the child, and that of the surviving
spouse also one-fourth of the
estate.
IC Illegitimate ½ of estate Art. 901. When the testator dies For the illegitimate children or
children alone [Art901] leaving illegitimate children and no descendants, the sharing shall
other compulsory heirs, such depend on whether death
illegitimate children shall have a occurred before or during the
right to one-half of the hereditary effectivity of the Family Code.
estate of the deceased.
The other half shall be at the free
disposal of the testator.
IP Illegitimate ½ of estate Art. 903. The legitime of the
parents alone [Art903] parents who have an illegitimate
child, when such child leaves
neither legitimate descendants,
nor a surviving spouse, nor

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illegitimate children, is one-half of

the hereditary estate of such
illegitimate child. If only legitimate
or illegitimate children are left, the
parents are not entitled to any
legitime whatsoever. If only the
widow or widower survives with
parents of the illegitimate child,
the legitime of the parents is one-
fourth of the hereditary estate of
the child, and that of the surviving
spouse also one-fourth of the
estate.

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SUCCESSION REVIEWER
CASE
Baritua v. CA
- The tricycle being driven by Bienvenido Nacario met an
accident with a bus, driven by Edgar Bitancor and owned
and operated by Jose Baritua.
- The accident caused the death of Nacario.
- No civil or criminal case was filed against the driver and
Baritua. Instead, an extra-judicial settlement was entered
into between Nacario’s spouse Alicia Baracena and the
petitioners and the bus’ insurer (Philippine First Insurance
Company).
- In that settlement, the spouse was given P18,500 and in
consideration for what she received, the widow executed
an affidavit of desistance in filing any case against the
petitioners.
- A year after, the parents of Nacario filed a complaint for
damages against the petitioners alleging that the petitioners
promised to indemnify for the death of their son, the funeral
expenses and the damages caused to the tricycle but
instead the petitioners paid to the estranged wife.
- The CFI ruled in favor of Baritua and the driver but the CA
reversed the decision upon appeal. Hence, this petition.
Whether or Not CA erred in ruling that the petitioners are still
liable to pay to the Nacarios’ parents
- SC held that this ruling is erroneous.
- The Court recognized that payment is one of the
recognized modes in extinguishing obligations.
- According to Art 1240 of the CC, to effect extinguishment,
payment must be made either to the person to whom the
obligation is made, to his successors-in-interest, or to
anyone authorized.
- It is clear under Article 887 that a surviving spouse and the
legitimate children are the compulsory heirs of a decedent.
- As such, the petitioners correctly paid Alicia and her son,
who are the successors-in-interest of Nacario.
- On the other hand, the parents of the deceased succeed
only when the latter dies without any legitimate
descendants. Since Nacario and Alicia begot a son, the
legitimate ascendants are excluded from succession.
- This is so even if Alicia had been estranged from
Bienvenido. Mere estrangement is not a legal ground for
the disqualification of a surviving spouse as an heir of the
deceased spouse.
- Legitimate ascendants succeed only in default of legitimate
descendants whereas a spouse is a concurring heir and
succeeds together with all classes of heirs.
- Mere estrangement is not a legal ground for the
disqualification of a surviving spouse as an heir of the
deceased spouse.
Rosales v. Rosales
Rosales v. Rosales
- Mrs. Petra Rosales died intestate. She was survived by her
husband and her two children. Her son predeceased her
but left a grandchild and his widow, who is the petitioner
herein.
- The trial court awarded ¼ each to the deceased husband,
two daughters and grandchild.
- Petitioner daughter-in-law now seeks reconsideration.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
W/N a widow is an intestate heir of a mother-in-law.
- SC held that no provision in the Civil Code states that a
widow is an intestate heir of a mother-in-law since she does
not inherit by right or by right of representation.
W/N the decision of the TC is final as to the widow.
- SC held that the decision is final because:
- 1. The widow is considered a third person as regards the
estate of the parent-in-law.
- 2. The provision in Art. 887 refers to the estate of the
deceased spouse in which case the surviving spouse is a
compulsory heir. It does not apply to the estate of the
parent-in-law
- 3. Petitioner cannot assert the same rights as that of the
grandchild because she has no filiation by blood with her
mother-in-law.
- 4. The right of the widow’s husband was extinguished at the
time of his death; thus, grandchild succeeded from
decedent by right of representation and not from his
deceased father.
- Art. 887 of the Civil Code: Intestate or legal heirs are
classified into two groups namely those who inherit by their
right and those who inherit by the right of representation.
(Art. 981)
Lapuz v. Eufemio
Note – under the Lapuz ruling, it does not matter who dies,
whether it be the offending or innocent spouse.
De Aparicio v. Paraguya
- Trinidad Motilde had a love affair with a priest, Fr. Felipe
Lumain and in the process she conceived.
- When Trinidad was almost four months and in order to
conceal the affair, Trinidad decided to marry Anastacio
MAmburao.
- When Fr. Lumain died, he left a last will and testament
wherein he acknowledged Consolacion as his daughter and
instituted her as the sole and universal heir of all his
property rights and interests.
- Soon after reaching the age of majority, Consolacion filed
an action for the recovery of certain parcels of land and for
damages against Hipolito Paraguya.
- Motilde claims that she has inherited these lands from her
biological father.
- During the trial, it was found that the subject of the action
were the three parcels of land originally owned by the
Parents of Fr. Lumain, the spouses Roman Lumain and
and Filomena Cesare.
- Paraguya claims ownership over the second parcel of land
by virtue of a Pacto de retro sale executed by Roman
Lumain and the former.
- Paraguya also claimed another portion of the lands in
question, described as portion G, which he said he bought
from Pelagio Torrefranca.
- Above all this, Paraguya also contended that Motilde had
no right over the properties of Fr. Lumain.
- He averred that by virtue of Art 255 of the Family Code,
children born after 180days of the marriage are presumed
to a legitimate child.
- Paraguya further averred that the exceptions to the rule
were not duly proved by Consolacion.
- Finally, he contended that the acknowledgement by Fr.
Lumain that Consolacion was his child cannot prevail over
the said presumption of legitimacy.
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Whether or Not Paraguya is entitled to the lot subject to a
right of repurchase
- SC held that Paraguya is entitled to the 2nd parcel of land
subject of the Pacto de retro sale. It is evident that the
period to redeem the property, which is four years from the
date of the contract, has already expired.
- Paraguya is also entitled to the land described as section G
with all the improvements thereon.
- The evidence adduced shows that this Section is outside
the land of Roman Lumain.
Whether or Not Paraguya is entitled to the land described as
Section G
- SC held in the affirmative.
- Paraguya questions the right of Consolacion over the
properties of Fr. Lumain on the premise that she is the
legitimate spouses of the mamburaos.
Whether or Not Consolacion is entitled to inherit from Fr.
Lumain
- The SC held that it is unnecessary to establish the paternity
of Consolacion in this case.
- This is because, in the Last Will and Testament of Fr.
Lumain, he did not only acknowledge Consolacion as his
daughter but also instituted her as his sole heir.
- As Fr. Lumain died without no compulsory heir,
Concolacion as the sole heir is entitled to all the properties
of the former.
- One who has no compulsory heir may dispose by will of all
of his estate or any part of it in favor of any person having
the capacity to succeed.
- One who has no compulsory heir may dispose by will of all
of his estate or any part of it in favor of any person having
the capacity to succeed.
ARTICLES GOVERNING THE
PARTICULAR COMBINATIONS
ART. 888. The legitime of legitimate children and
descendants consists of one-half of the
hereditary estate of the father and of the
mother.
The latter may freely dispose of the
remaining half, subject to the rights of
illegitimate children and of the surviving
spouse as hereinafter provided.
 Equal sharing – the legitimate children share the ½ in
equal parts, regardless of age, sec or marriage of
origin. The provision should have been explicit about
this. The counterpart provision in intestacy [Art979 par1
and Art980] is quite explicit on this.
 Descendants other than children – the GR is that the
nearer exclude the more remote. Hence, grandchildren
cannot inherit, since the children will bar the, unless all
the children renounce, in which case the grandchildren
become the nearest in degree. The rule goes on down
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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the tine, great grandchildren cannot inherit unless all
the children and grandchildren renounce.
 The only qualification to the rule that the nearer exclude
the more remote in the descending line is
representation when proper [Arts970-977]
 There is no limit to the number of degrees in the
descending line that may be called to succeed, whether
in their own right or by representation.
ART. 889. The legitime of legitimate parents or
ascendants consists of one-half of the
hereditary estates of their children and
descendants.
The children or descendants may freely
dispose of the other half, subject to the rights
of illegitimate children and of the surviving
spouse as hereinafter provided.
ART. 890. The legitime reserved for the legitimate
parents shall be divided between them
equally; if one of the parents should have
died, the whole shall pass to the survivor.
If the testator leaves neither father nor
mother, but is survived by ascendants of
equal degree of the paternal and maternal
lines, the legitime shall be divided equally
between both lines. If the ascendants should
be of different degrees, it shall pertain entirely
to the ones nearest in degree of either line.
 Legitimate parents/ascendants as secondary
compulsory heirs – the legitimate ascending line
succeeds only in default of the legitimate descending
line.
 3 BASIC RULES ON SUCCESSION IN THE
ASCENDING LINE
1. The nearer exclude the more remote.
• This rule in the ascending line admits of
no qualification, since there is no
representation in the ascending line.
[Art972 par1]
2. Division by line.
• This rule will apply if there are more than
one ascendant in the nearest degree. The
legitime shall then be divided in equal
parts between the paternal line and the
maternal line.
3. Equal division within the line.
• After the portion corresponding to the line
has been assigned, there will be equal
apportionment between or among the
recipients within the line, should there be
more than one.
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 Note – also, there is no right of representation in the
ascending line.
 The operation of the principles of Division By Line and
Equal Division within the Line may cause inequality of
shares among ascendants of identical degrees.
 For example, if both legitimate parents of testator
predecease him and testator has no other
legitimate descendants, if there are 2 surviving
maternal grandparents but only 1 surviving
paternal grandparent – the ½ estate is divided
equally between the maternal and paternal lines,
but the 2 maternal grandparents must share the ¼
portion of the maternal line [they get 1/8 each]
while the sole paternal grandparent gets the whole
¼ portion of the paternal line.
ART. 892. If only one legitimate child or
descendant of the deceased survives, the
widow or widower shall be entitled to one-
fourth of the hereditary estate. In case of a
legal separation, the surviving spouse may
inherit if it was the deceased who had given
cause for the same.
If there are two or more legitimate
children or descendants, the surviving
spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children
or descendants.
In both cases, the legitime of the
surviving spouse shall be taken from the
portion that can be freely disposed of by the
testator.
 1 LEGITIMATE CHILD / SURVIVING SPOUSE – the
sharing is ½ for the legitimate child and ¼ for the
surviving spouse.
 If there has been LEGAL SEPARATION between the
testator and the surviving spouse
 If there is a final decree of legal separation
1. surviving spouse is the innocent party – he/she
gets her legitime [Art63 par4 FC]
2. surviving spouse is the offending spouse –
he/she is disqualified from inheriting [Art63
par4 FC]
 If after the final decree of legal separation there
was a reconciliation between the parties, the
reciprocal right to succeed is restored because
reconciliation sets aside the decree [Art66 par2 FC]
 DEATH PENDENTE LITE – if either spouse dies during
the pendency of the proceedings for legal separation,
the proceedings are TERMINATED and the surviving
spouse inherits from the deceased spouse, no matter
which spouse died.
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Ryan Quan 
1ST SEM 2006- 2007
 Termination of Marriage by REAPPEARANCE of prior
Spouse / Decree of ANNULMENT or ABSOLUTE
NULLITY of marriage
 Arts 41-43 of FC govern a subsequent marriage
contracted by a party whose spouse has been
absent for the specified period and lay down the
requisites therefor.
 The reappearance of the prior spouse
TERMINATES the second marriage. One of the
effects of the termination as given in Art43[5] is –
“The spouse who contracted the subsequent
marriage in BAD FAITH shall be disqualified to
inherit from the innocent spouse by testate and
intestate succession.
 The implication of Art43 is that –
1. If both consorts in the second marriage were in
GOOD FAITH, they continue to be heirs of
each other.
2. If only one of said consorts acted in bad faith,
the innocent one will continue by testate and
intestate succession.
 PROBLEM – A and B are married. A disappears
and is absent for the required period. B then
contracts a second marriage with C, both in good
faith. Out of nowhere, A reappears [surprise!], and
so the marriage between B and C is terminated.
Under Art43[5] the reciprocal right of succession
between A and B as the original spouses remains.
What if B dies? Can A and C inherit from him/her?
 The same problem arises in cases of marriages
judicially annulled or declared void ab initio,
because of the provisions of Art50 par1 of the
Family Code – “The effects provided for by
paragraphs 2,3,4 and 5 of article 43 and by article
44 shall also apply in the proper cases to
marriages which are void ab initio or annulled by
final judgment under Articles 40 and 45.
 The problem here will arise should either or both
partners in the defective marriage remarry later.
 Balane says that prescinding from the practical
problem of having 2 husbands [or 2 wives] claiming
the right to a legitime, the very principle underlying
the rule is questionable – why should consorts of a
terminated marriage, or an annulled one, or one
declared void ab initio continue to be heirs of each
other? The marriage – which forms the basis of the
right of succession no longer exists.
 LEGITIMATE CHILDREN / SURVIVING SPOUSE –
The sharing is ½ for the children collectively and for the
spouse, equivalent to that of each of the legitimate
children or descendants.
 Determination of surviving spouse’s share
1. As long as at least 1 of several children
inherits in his own right, the determination of
the share of the surviving spouse presents no
problem. It will always be equivalent of one
child’s share.
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2. But supposing ALL the children predecease or
are disinherited or are unworthy to succeed?
Since all the grandchildren would then inherit
BY REPRESENTATION and therefore in
different amounts, the practical solution will still
be to give the spouse the share that each child
would have gotten if qualified.
3. Supposing ALL the Children RENOUNCE, the
grandchildren would inherit PER CAPITA or in
their own right and therefore equally. Should
the spouse’s share still be computed on the
basis of the children’s share had they
accepted? If so, then when will the word “or
descendants” in the second paragraph of this
article ever be operative?
ART. 893. If the testator leaves no legitimate
descendants, but leaves legitimate
ascendants, the surviving spouse shall have
a right to one-fourth of the hereditary estate.
This fourth shall be taken from the free
portion of the estate.
 LEGITIMATE ASCENDANTS / SURVIVING SPOUSE
- the sharing is ½ for the ascendants collectively and ¼
for the surviving spouse.
 For the parents or ascendants, the sharing will be in
accordance with Articles 889-890. [Legitimate
parents/ascendants as secondary compulsory heirs –
the legitimate ascending line succeeds only in default of
the legitimate descending line.]
ART. 894. If the testator leaves illegitimate
children, the surviving spouse shall be
entitled to one-third of the hereditary estate of
the deceased and the illegitimate children to
another third. The remaining third shall be at
the free disposal of the testator.
 ILEGITIMATE CHILDREN / SURVIVING SPOUSE –
the sharing is 1/3 for the illegitimate children or
descendants collectively and 1/3 for the surviving
spouse.
 Sharing among illegitimate children
1. If the decedent died during the effectivity of the
FAMILY CODE – the sharing will be equal,
inasmuch as the Family Code has abolished
the old distinction between natural and
illegitimate children other than natural or
spurious [Arts 163, 165 and 178 of FC]
2. If the decedent died BEFORE the effectivity of
the Family Code, the old distinctions must be
observed.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
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• The legitime of the spurious child will only
be 4/5 that of a natural child, according to
the ratio established in Art895 par2.
• This ratio of 5:4 among natural and
spurious children should be observed in
all cases under the Civil Code where they
concur.
ART. 895. The legitime of each of the
acknowledged natural children and each of
the natural children by legal fiction shall
consist of one-half of the legitime of each of
the legitimate children or descendants.
The legitime of an illegitimate child who is
neither an acknowledged natural, nor a
natural child by legal fiction, shall be equal in
every case to four-fifths of the legitime of an
acknowledged natural child.
The legitime of the illegitimate children
shall be taken from the portion of the estate at
the free disposal of the testator, provided that
in no case shall the total legitime of such
illegitimate children exceed that free portion,
and that the legitime of the surviving spouse
must first be fully satisfied.
 This article has been pro tanto amended by Articles
163, 165 and 176 of the Family Code.
 ONE LEGITIMATE CHILD / ILLEGITIMATE
CHILDREN / SURVIVING SPOUSE – the sharing is ½
for the illegitimate child, ¼ for the surviving spouse, and
¼ for each illegitimate child. These sharings are based
on Art.892 of NCC and Art176 of FC.
 LEGITIMATE CHILDREN / ILLEGITIMATE CHILDREN
/ SURVIVING SPOUSE - the sharing is ½ for the
legitimate children collectively, a share equal to that of
one legitimate child for the surviving spouse, and ½ the
share of one legitimate child for each illegitimate child.
 SHARING PRIOR TO THE FAMILY CODE
 If death occurred before the effectivity of the Family
Code, this article will govern – consequently,
should the natural and spurious children concur in
the succession, each spurious child will get 4/5 the
share of one natural child, and each natural child
gets ½ the share of one legitimate child. Example -
• 5 legitimate children and total estate is
1M. ½ of estate [500,000] divided by 5 so
1 Legit child – 100,000
• Natural child – 50,000
• Spurious child – 40,000
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SUCCESSION REVIEWER
 Should there be no natural children but only
spurious children, each spurious child will get 2/5
share of one legitimate child.
• 1 legit child – 100,000
• No natural children
• Spurious child – 40,000
 REDUCTION OF SHARES
 Depending on the number of legitimate and
illegitimate children, the possibility exists that the
total legitimes will exceed the entire estate.
Reductions, therefore will have to be made in
accordance with the following rules –
1. The legitimes of the legitimate children should
never be reduced, they are PRIMARY and
PREFERRED compulsory heirs
2. The legitime of the surviving spouse should
never be reduced, this article prohibits this.
3. The legitimes of the illegitimate children will be
reduced pro rata and without preference
among them.
ART. 896. Illegitimate children who may survive
with legitimate parents or ascendants of the
deceased shall be entitled to one-fourth of the
hereditary estate to be taken from the portion
at the free disposal of the testator.
 ILLEGITIMATE CHILDREN / LEGITIMATE PARENTS
the sharing is ½ for the legitimate parents collectively
and ¼ for the illegitimate children collectively.
 For the parents or ascendants, the sharing will be
in accordance with the rules laid down in Articles
889-890.
 For the illegitimate children or descendants, the
sharing shall depend on whether death occurred
before or during the effectivity of the Family Code.
ART. 897. When the widow or widower survives
with legitimate children or descendants, and
acknowledged natural children, or natural
children by legal fiction, such surviving
spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children
which must be taken from that part of the
estate which the testator can freely dispose
of.
ART. 898. If the widow or widower survives with
legitimate children or descendants, and with
illegitimate children other than acknowledged
natural, or natural children by legal fiction,
the share of the surviving spouse shall be the
same as that provided in the preceding
article.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
 The 2 articles are merely reiterations of the rules
already laid down in Articles 892 and 895 and need not
be explained.
ART. 899. When the widow or widower survives
with legitimate parents or ascendants and
with illegitimate children, such surviving
spouse shall be entitled to one-eighth of the
hereditary estate of the deceased which must
be taken from the free portion, and the
illegitimate children shall be entitled to one-
fourth of the estate which shall be taken also
from the disposable portion. The testator may
freely dispose of the remaining one-eighth of
the estate.
 LEGITIMATE PARENTS / ILLEGITIMATE
CHILDREN / SURVIVING SPOUSE – the sharing is ½
for the legitimate parents collectively, ¼ for the
illegitimate children collectively and 1/8 for the surviving
spouse.
 For the parents or ascendants, the sharing will be
in accordance with the rules laid down in Articles
889-890.
 For the illegitimate children or descendants, the
sharing shall depend on whether death occurred
before or during the effectivity of the Family Code.
ART. 900. If the only survivor is the widow or
widower, she or he shall be entitled to one-
half of the hereditary estate of the deceased
spouse, and the testator may freely dispose
of the other half.
If the marriage between the surviving
spouse and the testator was solemnized in
articulo mortis, and the testator died within
three months from the time of the marriage,
the legitime of the surviving spouse as the
sole heir shall be one-third of the hereditary
estate, except when they have been living as
husband and wife for more than five years. In
the latter case, the legitime of the surviving
spouse shall be that specified in the
preceding paragraph.
 SURVIVING SPOUSE AS SOLE COMPULSORY HEIR
–
 General rule – ½ of the estate
 Exception – 1/3 of the estate, if the following
circumstances are present –
a) The marriage was in articulo mortis
b) The testator died within 3 months
from the time of the marriage
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c) The parties did not cohabit for more
than 5 years, and
d) The spouse who died was the party in
articulo mortis at the time of the marriage.
 NOTE – the last requisite is not explicit in the article but
can be derived from the sense and intent of the
provision. The law does not regard such marriages with
eager approval.
surviving spouse, nor illegitimate children, is
one-half of the hereditary estate of such
illegitimate child. If only legitimate or
illegitimate children are left, the parents are
not entitled to any legitime whatsoever. If only
the widow or widower survives with parents
of the illegitimate child, the legitime of the
parents is one-fourth of the hereditary estate
of the child, and that of the surviving spouse
also one-fourth of the estate.

 ILLEGITIMATE PARENTS ALONE – they get ½ of the

estate. Note that in the illegitimate ascending line, the
right DOES NOT go beyond the parents.

ART. 901. When the testator dies leaving
illegitimate children and no other compulsory
heirs, such illegitimate children shall have a
right to one-half of the hereditary estate of the
deceased.
The other half shall be at the free disposal
of the testator.
 ILLEGITIMATE CHILDREN ALONE – they get ½ of the
estate collectively. The sharing among the illegitimate
children or descendants will depend on whether death
occurred before or during the effectivity of the Family
Code.
 ILLEGITIMATE PARENTS / SURVIVING SPOUSE –
the sharing is ¼ for the parents collectively and ¼ for
the spouse.
 Illegitimate parents EXCLUDED by all kinds of children
– as secondary compulsory heirs, the illegitimate
parents are inferior to legitimate parents. Whereas
legitimate parents are excluded only by legitimate
children, illegitimate parents are excluded by all kinds of
children, legitimate or illegitimate.


End of Midterms Coverage

ART. 902. The rights of illegitimate children set
forth in the preceding articles are transmitted
upon their death to their descendants,
whether legitimate or illegitimate.

 Right of representation to the legitimate and illegitimate

descendants of an illegitimate child.

 Rule of Article 902 compared with Rule of Article 992 –

In the case of descendants of legitimate children, the
right of representation is given only to legitimate
descendants, by virtue of Art992.

 The net effect of all this is that the right of

representation given to descendants of illegitimate
children is BROADER than the right of representation
given to descendants of legitimate children. Thus, an
illegitimate child of a predeceased legitimate child
cannot inherit by representation [Art992], while an
illegitimate child of an illegitimate child can [Art902]. A
classic instance of unintended consequence.

ART. 903. The legitime of the parents who have

an illegitimate child, when such child leaves
neither legitimate descendants, nor a

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3. Reversion Legal
4. Reversion Adoptiva

• Purpose of the Reserva Troncal

 The reserve troncal is a special
rule designed primarily to assure the return of the
reservable property to the 3rd degree relatives
belonging to the line from which the property
originally came, and to avoid its being dissipated by
the relatives of the inheriting ascendant [the
reservista].
 Also to avoid the danger that
property existing for many years in a family’s
patrimony might pass gratuitously to outsiders
through the accident of marriage and untimely
death.

RESERVA TRONCAL

• PROCESS – 3 Transmissions Involved

Art. 891. The ascendant who inherits from his

1. First Transfer – by
gratuitous title, from a person to his descendant,
descendant any property which the latter may brother or sister.
have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to
2. Second Transfer – by
operation of law, from the transferee in the first
reserve such property as he may have transfer [prepositus] to another ascendant
acquired by operation of law for the benefit of [reservista]. It is this second transfer that creates
relatives who are within the third degree and the reserva.
who belong to the line from which said 3. Third Transfer – from
property came. the transferee in the second transfer [reservista] to
the relatives within the 3rd degree of the
• The Reserva Troncal Prepositus, coming from the line of the Origin.

Origin Reservista Reservatarios  If there are only two

(Relative w/in transmissions, there is no reserva [Gonzales v CFI]
3rd degree of
Prepositus)
By Gratuitous By Operation
Title of Law

Prepositus

 The Prepositus inherits a piece

of land from his father, the Origin. Subsequently, the
Prepositus dies intestate, single and without issue,
and the land is in turn inherited by his mother, the
Reservista. The Reservista is then required to
reserve the property in favor of the Prepositus’
paternal relatives within the 3rd degree
(Reservatarios).

• Reservas and Reversiones in the Spanish Code

1. Reserva Viudal
2. Reserva Troncal

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SUCCESSION REVIEWER 1ST SEM 2006- 2007

o He is either the ascendant or a brother or sister

REQUISITES OF RESERVA TRONCAL
1. That the
property was acquired by a descendant
[prepositus] from an ascendant or from a
brother or sister [origin] by gratuitous title.
o The term descendant should read person
because if the grantor is a brother or sister,
the one acquiring obviously is not a
descendant.
o Acquisition is by gratuitous title when the
recipient does not give anything in return. It
encompasses transmissions by donation or
by succession of whatever kind.
2. That said
2.
descendant [prepositus] died without an
issue.
o Should read – “that said person died without
legitimate issue, because only legitimate
descendants will prevent the property from
being inherited by the legitimate ascending
line by operation of law.
3. That the
property is inherited by another ascendant
[reservista] by operation of law; and
o Transmission by operation of law is limited
by succession, either to the legitime or by
intestacy.
4. That there are
relatives within the 3rd degree belonging to
the line from which said property came
[reservatarios].
of the Prepositus.
o Ascendant from any degree of ascent.
o Brother/Sister – 2 Schools of Thought
a) Relationship must be of HALF
BLOOD – because otherwise the
property would not change lines. This
means that if the relationship is Full
Blood, there is no reserve because then
it would not be possible to identify the
line of origin.
b) It does not matter whether the
fraternal relationship is of the full or half-
blood. In either case, a reserve may
arise. Since the law makes no distinction,
we should not make one.
PREPOSITUS
o He is either the descendant or a brother/ sister
of the Origin who receives the property from the
Origin by gratuitous title. Thus, in the scheme of
the reserva troncal, he is the FIRST transferee
of the property.
o While the property is still with the Prepositus,
there is yet NO RESERVA. The reserva arises
only upon the second transfer.
o Consequently, while the property is owned by
the Prepositus, he has all the rights of
ownership over it and may exercise such rights
in order to prevent a reserva from arising. He
can do this by –
a) Substituting or alienating the property
b) Bequeathing or devising it either to the
potential reservista or to 3rd persons
[subject to constraints of the legitime]
c) Partitioning in such a way as to assign
the property to parties other than the
potential reservista [again subject to the
constraints of the legitime].
o In this sense, the Prepositus is deemed the
Arbiter of the Reserva Troncal.

3. RESERVISTA
[RESERVOR]
• 2 BASIC RULES o He is an ascendant of the Prepositus, of
I. No whatever degree. The Reservista must be an
inquiry is to be made beyond the Origin/ ascendant other than the Origin/ Mediate
Mediate Source. It does not matter who the Source [if the latter is also an ascendant].
owner of the property was before it was o The law is clear - it refers to the Origin/ Mediate
acquired by the Origin. Source as another ascendant. If these two
II. All the parties are the same person, there would be no
relationships among the parties must be reserva troncal.
legitimate. The provisions of Art891 only apply
to legitimate relatives.
o Should the Origin/Mediate Source and the
• 4 PARTIES TO THE RESERVA TRONCAL Reservista belong to Different Lines?
- Example: A receives by donation a parcel
1. ORIGIN OR THE of land from his paternal grandfather X.
MEDIATE SOURCE Upon A’s death, the parcel passes by
intestacy to his father Y [X’s son]. The

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SUCCESSION REVIEWER
property never left the line, is Y obliged to
reserve?
- One View – NO, because another
ascendant is one belonging to a line other
than that of the reservista.
- Another View – YES, because [1] the law
makes no distinction, and [2] the purpose of
the reserve is not only curative but also
preventive, i.e. to prevent the property from
leaving the line.
4. RESERVATARIOS
[RESERVEES]
o The reserva is in favor of a class, collectively
referred to as the Reservatarios [reservees].
o REQUIREMENTS TO BE A RESERVATARIO:
1) He must be within the 3rd
degree of consanguinity from the
Prepositus.
2) He must belong to the line
from which the property came. This is
determined by the Origin/Mediate
Source.
- If an ascendant, the Mediate Source is
either of the paternal or maternal line.
- If a half-brother or half-sister, the same
is true.
- If however, it is a brother or sister of
the full blood, it would not be possible
to distinguish the lines.
- To those who hold the opinion that a
reserva would not exist in such case of
full blood siblings, Manresa’s comment
should be the norm: “that the question
of line would be indifferent.”
o Question – must the Reservatario also be
related to the Mediate Source?
- Manresa says NO, the article speaks
solely of 2 lines, the paternal and the
maternal of the descendant, without regard
to subdivisions.
- Sanchez Roman says YES, otherwise
results would arise completely contrary to
the purpose of this reserva, which is to
prevent the property from passing to
persons not of the line of origin.
o Reserva in favor of reservatarios as a CLASS -
to be qualified as a reservatario, is it necessary
that one must already be LIVING when the
prepositus dies?
- NO, because the reserva is established in
favor of a GROUP or CLASS, the relatives
within the 3rd degree, and not in favor of
specific individuals.
- As long, therefore, as the reservatario is
alive at the time of the reservarista’s death,
he qualifies as such, even if he was
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conceived and born after the Prepositus’
death.
o Preference Among the Reservatarios
- Upon death of the ascendant reservista,
the reservable property should pass, not to
all the reservatorios as a class, but only to
those NEAREST in degree to the
descendant [prepositus], excluding those
reservatarios of more remote degree.
[Padura v. Baldovino]
- In other words, the reserve troncal merely
determines the group of relatives
[reservatarios] to whom the property should
be returned; but within that group, the
individual right to the property should be
decided by the applicable rules of ordinary
intestate succession, since Art891 does not
specify otherwise.
- Thus, according to the Padura ruling, which
subjects the choice of reservatarios to the
rules of intestate succession, those
reservatarios nearer in degree of
relationship to the Prepositus will exclude
those more remotely related.
o Representation Among the Reservatarios
- As in intestate succession, the rule of
preference of degree among reservatarios
is qualified by the rule of representation.
- The right of representation cannot be
alleged when the one claiming the same as
a reservatario of the reservable property is
not among the relatives within the 3rd
degree belonging to the line from which
such property came, inasmuch as the right
granted by the Civil Code in Art811 is in the
highest degree personal and for the
exclusive benefit of designated persons
who are the relatives withint the 3rd degree
of the person from whm the reservable
property came. Therefore, relatives of the
4th degree and the succeeding degrees can
never be considered as reservatarios since
the law does not recognize them as such.
- Nevertheless, there is a right of
representation on the part of the
reservatarios who are within the 3rd degree
mentioned by law, as in the case of
nephews of the deceased person from
whom the reservable property came. These
reservatarios have the right to represent
their ascendants [fathers and mothers] who
are the brothers of the said deceased
person and relatives within the 3rd degree in
accordance with Art811. [Florentino v.
Florentino]
- Actually, there will only be 1 instance of
representation among the reservatarios,
which is in case of the Prepositus being
survived by brothers/sisters and children of
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a predeceased or incapacitated brother or
sister.
• Juridical Nature of Reserva Troncal
 The juridical nature of the
reserve troncal may be viewed from 2 aspects –
from that of the reservista and that of the
reservatarios.
1. Juridical Nature from
the viewpoint of the RESERVISTA
- Manresa says that “the ascendant is in the
first place a USUFRUCTUARY who should
use and enjoy the things according to their
nature, in the manner and form already set
forth in the Code referring to use and
usufruct.”
- But since in addition to being the
usufructuary, he is, even though
CONDITIONALLY, the owner in fee simple
of property, he CAN DISPOSE of it in the
manner provided in Articles 974 and 976 of
the Code.
- The conclusion is that the person required
by Art811 to reserve the right has, beyond
any doubt at all, the rights of use and
usufruct. He has, moreover, the LEGAL
TITLE and DOMINION, although under a
CONDITION subsequent [whether or not
there exist at the time of his death relatives
within the 3rd degree of the descendant
from whom they inherit in the line whence
the property proceeds].
- Clearly, he has, under an express provision
of law, the right to dispose of the property
reserved, and to dispose of is to alienate,
although under a condition. He has the
right to recover it, because he is the one
who possesses or should possess it and
have title to it, although a limited and
revocable one. In a word, the legal title and
dominion, even though under a condition,
reside in him while he lives. After the right
required by law to be reserved has been
assured, he can do anything that a genuine
owner can do. [Edroso v Sablan]
 From Edroso, the following may
be derived:
A. The reservista’s right over the reserved
property is one of ownership.
B. The ownership is subject to a
RESOLUTORY CONDITION, i.e. the
existence of reservatorias at the time of the
reservista’s death.
C. The right of ownership is alienable, but
subject to the same resolutory condition.
D. The reservista’s right of ownership is
registerable.
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2. Juridical Nature from the viewpoint of the
RESERVATARIOS
- The nature of the reservatarios’ right is,
Manresa says, that “during the whole
period between the constitution in legal
form of the right required by law to be
reserved and the extinction thereof, the
relatives within the 3rd degree, after the
right that in their turn may pertain to them
has been assured, have only an
EXPECTATION and therefore they do not
even have the capacity to transmit that
expectation to their heirs.”
- The relatives within the 3rd degree in whose
favor the right is reserved cannot dispose
of the property, first because it is in no way,
either actually, constructively or formally, in
their possession; and, moreover, because
they have no title of ownership or of fee
simple which they can transmit to another,
on the hypothesis that only when the
person who must reserve the right should
die before them will they take their place in
the succession of the descendant of whom
they are relatives within the 3rd degree, that
is to say, a second contingent place in said
legitimate succession in the fashion of
aspirants to a possible future legacy.
[Edroso v. Sablan]
- The reserva instituted by law instituted by
law in favor of the heirs within the 3rd
degree belonging to the line from which the
reservable property came, constitutes a
REAL RIGHT which the reserve may
alienate and dispose of, albeit conditionally,
the CONDITION being that the alienation
shall transfer ownership to the vendee only
if an when the reserve survives the person
obliged to reserve. [Sienes v. Esparcia]
 From Sienes, the following may
be derived:
A. The reservatarios have a right of
expectancy over the property.
B. The right is subject to a SUSPENSIVE
CONDITION, i.e. the expectancy ripens into
ownership if the reservatarios survive the
reservista.
C. The right is alienable, but subject to the
same suspensive condition.
D. The right is registerable.
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SUCCESSION REVIEWER
 Florentino v. Florentino also
held that the reservista has NO POWER to appoint,
by will, which specific individual of the reservatarios
were to get the reserved property. [As also held in
Gonzales v. CFI].
 The reservees do not inherit
from the reservoir but from the PREPOSITUS, of
whom the reservees are the heirs mortis causa
subject to the condition that they must survive the
reservor. [Padura v. Baldovino as cited in Gonzales
v. CFI]
 The rule in this jurisdiction,
therefore, is that upon the reservista’s death, the
property passes by strict operation of law
[according to the rules of intestate succession,
as held in Padura], to the proper reservatarios.
Thus, the selection of which reservatarios will
get the property is made by law and not by the
reservista.
• The Property Reserved
 Any kind of property is
reservable. A sugar quota allotment, as incorporeal
property, was held to be reservable in Rodriguez v.
Rodriguez.
 Effect of Substitution
o The very same property must go through the
process of transmissions, in order for the
reserva to arise. Thus, the same property must
come from the Mediate Source, to the
Prepositus by gratuitous title, and to the
reservista by operation of law.
o If the prepositus substitutes the property by
selling, bartering or exchanging it, the substitute
cannot be reserved.
o Note that while the property is with the
Prepositus, there is yet no reserva, which
commences when the property id received by
the reservista.
o Consequently, the Prepositus has, over the
property, plenary powers of ownership, and he
may exercise these powers to thwart the
potential reserva. The Prepositus is the arbiter
of the reserva.
 QUESTION – would there be a
reserva if the Prepositus sold the property under
pacto de retro and then redeemed it?
 Reserved Property Does Not
Form Part of the Reservista’s Estate Upon his Death
o The contention that an intestacy proceeding is
still necessary rests upon the assumption that
the reservatario will succeed in, or inherit, the
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reservable property from the reservista. This is
not true. The reservatario is not the reservista’s
successor mortis causa nor is the reservable
property part of the reservista’s estate; the
reservatario receives the property as a
conditional heir of the Prepositus, said property
merely reverting to the line of origin from which
it had temporarily and accidentally strayed
during the reservista’s lifetime.
o It is a consequence of these principles that
upon the death of the reservista, the
reservatario nearest to the prepositus becomes,
automatically and by operation of law, the
owner of the reservable property. As already
stated, that property is no part of the estate of
the reservista, and does not even answer for
the debts of the latter. Hence, its acquisition by
the reservatario may be entered in the property
records without necessity of estate proceedings,
since the basic requisites therefor appear of
record. [Cano v. Director]
o Of course, where the registration decree merely
specifies the reservable character of the
property, without determining the identity of the
reservatario or where several reservatarios
dispute the property among themselves, further
proceedings are unavoidable.
o As a consequence of the rule laid down in
Cano, since the reserved property is not
computed as part of the reservista’s estate,
it is not taken into account in determining
the legitimes of the reservista’s compulsory
heirs.
 RESERVA MAXIMA –
RESERVA MINIMA
o Problem: if 2 circumstances occur
- The prepositus makes a will instituting the
ascendant-reservista to the whole or a part
of the free portion, and
- There is left in the Prepositus’ estate, upon
his death, in addition to the reserved
property, property not reservable.
o 2 Theories have been Advanced
- Reserva Maxima – as much of the
potentially reservable property as possible
must be deemed included in the part that
passes by operation of law. This
“maximizes” the scope of the reserva.
- Reserva Minima – every single property in
the Prepositus’ estate must be deemed to
pass, partly by will and partly by operation
of law, in the same proportion that the part
given by will bears to the part not so given.
o Reserva Minima is more widely accepted.
• Rights and Obligations
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SUCCESSION REVIEWER
 There are no specific
implementing articles on the reserva troncal.
 Under the Old Code, the
provisions viudal were extended to the troncal, thus
the rights of the reservatarios and the corresponding
obligations of the reservista were:
a. To inventory the reserved properties
b. To annotate the reservable character [if
registered immovables] in the Registry of
Property within 90 days from acceptance by
the reservista.
c. To appraise the immovables
d. To secure by means of mortgage: [i] the
indemnity for any deterioration of or damage
to the property occasioned by the reservista’s
fault or negligence, and [ii] the payment of the
value of such reserved movables as may
have been alienated by the reservista
onerously or gratuitously.
 The abolition of the reserva
viudal has caused some uncertainty whether these
requirements still apply.
 It was held in Sumaya v. IAC
that the requirement of annotation remains, despite
the abolition of reserva viudal, as based on Sec51 of
PD1529 providing for conveyance and other
dealings by registered owners.
 Sumaya is however, silent on 2
points:
1. Within what period
must the annotation be made, and
2. Whether the other
requirements of the old viudal also remain.
• Extinguishment of the Reserva Troncal
 The reserve troncal
extinguished by:
1. Death of the
Reservista
2. Death of ALL the
Reservatarios
3. Renunciation by ALL
the Reservatarios, provided that no other
reservatario is born subsequently
4. Total fortuitous loss of
the reserved property
5. Confusion or merger of
rights, as when the reservatarios acquire the
reservista’s right by a contract inter vivos
6. Prescription or adverse
possession
CASES
Gonzales v. CFI
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- This is an appeal by Beatriz Gonzales from the decision of
the CFI of Manila for dismissing her complaint for partition,
accounting, reconveyance, damages, and holding as not
subject to reserva troncal, the properties which her mother
inherited in 1943 from Filomena.
- Benito Legarda y De la paz, the son of Benito Legarda y
Tuason died in 1933 and was survived by widow Filomena
and their seven children.
- In 1939, real properties left by Benito Legarda y Tuason
were partitioned in three equal portions by his daughters
and the heirs of the deceased son who were represented
by Benito Legarda.
- Mrs. Legarda then executed in 1947 an affidavit
adjudicating extrajudicially to herself the properties which
she inherited from her deceased daughter, Filomena
Legarda.
- As a result of the affidavit of adjudication, Filomena Roces
succeeded her deceased daughter Filomena Legarda as
co-owner of the properties held proindiviso by her other six
children.
- Then in 1953, Mrs. Legarda executed two handwritten
identical documents wherein she disposed of the properties
which she inherited from her daughter, in favor of the
children of her sons.
- Then from the period of 1958 to 1959, Mrs. Legarda and
her children partitioned the properties consisting of the one-
third share in the estate of Benito Legarda y Tuason which
the children inherited in representation of their father,
Benito Legarda y De la Paz.
- On 1967, Mrs. Legarda died and on 1968 her holographic
will was admitted to probate.
- During such proceeding, Beatriz Gonzales filed a motion to
exclude from the inventory of her mother’s estate the
properties which she inherited from her deceased daughter,
Filomena on the ground that such properties are reservable
properties which should be inherited by Filomena Legarda’s
three sisters and three brothers and not by the children of
Benito, Alejandro and Jose. This was opposed by the
administrator.
- She then filed an ordinary civil action for the purpose of
securing a declaration that the said properties are
is reservable properties which Mrs. Legarda could not
bequeath in her will. This was dismissed.
- Hence this appeal.
WON, the properties in question are subject to reserve troncal
under Article 891 of the Civil Code.
- Yes, the properties in the instant case were reservable
properties in the hands of Mrs. Legarda. Undoubtedly she
was a reservoir.
- The reservation became a certainty when at the time of her
death the reserves or relatives within the third degree of the
prepositus Filomena Legarda were living or they survived
Mrs. Legarda.
WON, Mrs. Legarda as reservor can convey the reservable
properties by will or mortis causa to the reserves within the 3 rd
degree to the exclusion of the reserves in the 2nd degree, her
daughters and sons.
- No, she cannot convey these as they never really formed
part of her estate.
- The reservor cannot make a disposition morits causa of the
reservable properties as long as the reserves survived the
reservoir.
- The nearest relatives should be the one who will inherit the
property and Mrs. Legarda could not choose to whom the
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SUCCESSION REVIEWER
reservable property should be given and deprive the other
reservees of their share therein.
- Ignoring the second degree reservees would be a glaring
violation of Article 891.
- Hence, the reservable properties should go to Mrs.
Legarda’s children and not to the grandchildren.
- In reserva troncal,l (1) a descendant inherited or acquired
by gratuitous title property from an ascendant or from a
brother or sister; (2) the same property is inherited by
another ascendant or is acquired by him by operation of law
from the said descendant, and (3) the said descendant
should reserve the said property for the benefit of relative
who are within the third degree from the deceased
descendant and who belong to the line from which the said
property came. Three transmissions are involved.
- Reserva contemplates legitimate relationship
Solivio v. CA
- As Esteban’s parents died while he was still young, Salustia
and her sister, Celedonia brought up Esteban, Jr. Salustia,
Esteban’s mother, brought to her marriage paraphernal
properties, but no conjugal property was acquired during
her short-lived marriage to Esteban, Sr.
- Salustia died, leaving all her properties to her only child,
Esteban, Jr.,
- Esteban died of a heart attack. His only surviving relatives
are: (1) his maternal aunt, petitioner Celedonia Solivio, the
spinster half-sister of his mother, Salustia Solivio; and (2)
the private respondent, Concordia Javellana-Villanueva,
sister of his deceased father, Esteban Javellana, Sr.
- Celedonia told Concordia about Esteban's desire to place
his estate in a foundation to be named after his mother,
from whom his properties came, for the purpose of helping
indigent students in their schooling. Concordia agreed to
carry out the plan of the deceased.
- The probate court declared Celdonia as sole heir of the
estate of Esteban. Thereafter, she sold properties of the
estate to pay the taxes and other obligations of the
deceased and proceeded to set up the "SALUSTIA
SOLIVIO VDA. DE JAVELLANA FOUNDATION".
- Four months later, Concordia filed a motion for
reconsideration of the court's order declaring Celedonia as
"sole heir" of Esteban, Jr., because she too was an heir of
the deceased.
Whether the decedent's properties were subject to reserva
troncal in favor of Celedonia, his relative within the third
degree on his mother's side from whom he had inherited
them;
- NO. Clearly, the property of the deceased, Esteban
Javellana, Jr., is not reservable property, for Esteban, Jr.
was not an ascendant, but the descendant of his mother,
Salustia Solivio, from whom he inherited the properties in
question.
- Therefore, he did not hold his inheritance subject to a
reservation in favor of his aunt, Celedonia Solivio, who is
his relative within the third degree on his mother's side. The
reserva troncal applies to properties inherited by an
ascendant from a descendant who inherited it from another
ascendant or a brother or sister. It does not apply to
property inherited by a descendant from his ascendant, the
reverse of the situation covered by Article 891.
- Since the deceased, Esteban Javellana, Jr., died without
descendants, ascendants, illegitimate children, surviving
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spouse, brothers, sisters, nephews or nieces, what should
apply in the distribution of his estate are Articles 1003 and
1009 of the Civil Code. (see Doctrine portion)
- Both plaintiff-appellee and defendant-appellant being
relatives of the decedent within the third degree in the
collateral line, each, therefore, shall succeed to the subject
estate 'without distinction of line or preference among them
by reason of relationship by the whole blood,' and is entitled
to one-half (1/2) share and share alike of the estate.
- As regards Concordia’a ½ share--inasmuch as Concordia
had agreed to deliver the estate of the deceased to the
foundation in honor of his mother, Salustia. she is bound by
that agreement. It is true that by that agreement, she did
not waive her inheritance in favor of Celedonia, but she did
agree to place all of Esteban's estate in the "Salustia
Solivio Vda. de Javellana Foundation" which Esteban, Jr.,
during his lifetime, planned to set up to honor his mother.
- The persons involved in reserva troncal are:
"1. The person obliged to reserve is the reservor
(reservista) — the ascendant who inherits by operation of
law property from his descendants.
"2. The persons for whom the property is reserved are
the reservees (reservatorios) — relatives within the third
degree counted from the descendant (propositus), and
belonging to the line from which the property came.
"3. The propositus — the descendant who received by
gratuitous title and died without issue, making his other
ascendant inherit by operation of law.
- "ART. 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased
in accordance with the following articles.
- "ART. 1009. Should there be neither brothers nor
sisters, nor children of brothers or sisters, the other
collateral relatives shall succeed to the estate.
- "The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood."
Nieva v. Alcala
- Juliana Nieva married Francisco Deocampo and with whom
she begot a son named Alfeo Deocampo. Juliana died
intestate and her son Alfeo inherited from her several
parcels of land. However, Alfeo died intestate and without
issue, so the aforementioned parcels of land passed to his
father Francisco. Francisco subsequently married Manuela
Alcala, with whom he had a son, Jose Deocampo. When
Francisco died, his widow and his son took possession of
the said lands.
- Segunda Maria Nieva sought to recover the parcels of land
in question, as she is the acknowledged natural daughter of
Juliana. According to her birth records, Juliana gave birth
to her and lived with her before Juliana’s marriage to
Francisco. Segunda was treated and publicly exhibited as
Juliana’s legitimate daughter.
Whether or not the law on reserva troncal applies to
illegitimate relatives.
No. While there are no previous cases on the subject, the
Court thought it proper to adopt the writings of Manresa and
Scaevola on the matter.
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- While the provision of law does not make a distinction, it
has to be recognized that this is so because the legitimate
relationship forms the general rule and the natural
relationship the exception; which is the reason why, the law
in many articles, speaks only of children or parents, or
ascendants and descendants, and in them reference is of
course made to those who are legitimate; and when it
desires to make a provision applicable only to natural
relationship, it does not say father or mother, but natural
father or natural mother; it does not speak of ascendants,
brothers or parents but of natural ascendants, natural
brothers or natural parents. Thus, as the law does not
qualify, the general rule applies that it only refers to
legitimate ascendants.
- The provision on reserva troncal treats of legitimate
relationship. The person obliged to reserve is a legitimate
ascendant who inherits from a descendant property which
proceeds from the same legitimate family, and this being
true, there can be no question, because the line from which
the properties proceed must be the line of that family and
only in favor of that line is the reservation established.
Remember: the object is to protect the patrimony of the
legitimate family.
Padura v. Baldovino
- Agustin Padura contracted 2 marriages during his lifetime.
With his first wife, Gervacia, he had one child whom they
named Manuel Padura. Wih his second wife, Benita, he
had two children named Fortunator and Candelaria Padura
Baldovino.
- Upon his death, the properties were left among his children
and surviving spouse, Benita.
- Fortunato was adjudicated 4 parcels of land.
- Fortunato died unmarried without having executed a will.
Thus, the parcels of land were inherited exclusively by his
mother, Benita.
- She applied for and later was issued a TCT in her name,
but subject to the condition that the properties were
reservable in favor of relatives within the 3rd degree
belonging to the line from which said property came.
- Candelaria died leaving as her only heirs her four legitimate
children,
- Years later, Manuel also died. Surviving him are his
legitimate children.
- Upon the death of Benita (the reservista), appellants and
appellees took possession of the reservable properties.
- In a resolution of the CFI, the legitimate children of the
deceased Manuel and Candelaria were declared to be the
rightful reserves and as such, entitled to the reservable
properties.
- The instant petitioner filed by the heirs of Candelaria seeks
to have this properties partitioned, such that ½ of the same
be adjudicated to them, and the other half to the appellees,
allegedly on the basis that they inherited by right of
representation from their respective parents, the original
reserves.
- On the other hand, appellees maintained that they should
all (the eleven reservees) be deemed as inheriting in their
own right, under which, they claim each should have an
equal share.
- The lower court declared all the reservees (without
distinction) co-owners, pro-indiviso, in equal shares of the
parcels of land.”
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In a case of reserve troncal where the only reserves surviving
the reservista and belonging to the line of origin, are nephews
of the descendants but some are nephews for the half blood
and the otheres are nephews of the whole blood, should the
reserved properties be apportioned among them equally or
should the nephews of the whole blood take a share twice as
large as that of the nephews of the half blood?
- The SC held that the reserves nephews of the whole blood
are entitled to s share twice as large that of the others.
- The stated purpose of the reserva is accomplished once
the property has devolved to the specified relatives of the
line of origin. But from this time on, there is no further
occasion for its application.
- In the relations between one reservatorio and another of
the same degree, there is no call for applying Art. 891 any
longer. Thus, the respective share of each in the
reversionary property should be governed by the ordinary
rules of intestate succession.
- Upon the death of the ascendant reservista, the reservable
property should pass, not to all reservatorios as a class, but
only to those nearest in degree to the descendant
(prepositus), excluding those reservatorios of the more
remote degree.
- The reserva troncal merely determines the group of
relatives (reservatorios) to whom the property should be
returned; but within that group the individual right to the
property should be decided by the applicable rules of
ordinary intestate succession.
- Reservatorios nearer in degree of relationship to Prepositus
will exclude those more remotely related.
- Proximity of degree and right of representation are basic
principles of ordinary intestate succession; so is the rule
that whole blood bothers and nephews are entitled to a
share double that of brothers and nephews of half blood. If
in determining the rights of the reservatorios inter se,
proximity of degree and the right of representation of
nephews are made to apply, the rule double share for
immediate collaterals, of the whole blood should likewise be
operative.
Florentino v. Florentino
- Apolonio II married Antonia with whom he has 9 children
(Encarnacion, et. al. – the plaintiffs in this case). Antonia
died.
- Apolonio II again married. This time with Severina and had
2 children, Mercedes and Apolonio III, the latter being born
after the father’s death.
- The father left a will instituting all his children from both
marriages and Severina as the universal heirs.
- Apolonio III died ahead of his mother and the latter
succeeded to all the son’s property. Upon the death of
Severina, Mercedes succeeded her and the property she
received included those which her mother received from
Apolonio III.
- The plaintiffs (which include the children of the deceased
brothers and sisters of Encarnacion who inherit by virtue of
their right to representation) now claim that the property
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received by Severina from her son was reservable property
and thus, they are each entitled to 1/7 of the fruits of the
reservable property.
- Defendants demurred claiming that the object of the law is
to avoid the transfer of the reservable property to those
extraneous to the family of the owner. They claim that since
the property was transferred to Mercedes (who was part of
the family), the object of the law has not been violated and
thus the property has lost its reservable character.
WON the property was reservable.
- YES. Even if Severina left in her will said property, together
with her own, to her only daughter and forced heiress,
Mercedes, nevertheless this property had not lost its
reservable nature inasmuch as it originated from the
common ancestor of the litigants, Apolonio Isabelo; was
inherited by his son Apolonio III; was transmitted by same
(by operation of law) to his legitimate mother and
ascendant, Severina.
- Severina was duty bound, according to article 811 of the
Civil Code, to reserve the property thus acquired for the
benefit of the relatives, within the third degree, of the line
from which such property came.
- As to the children of the brothers and sisters of
Encarnacion, SC held that there is right of representation
on the part of reservatarios who are within the third degree
mentioned by law, as in the case of nephews of the
deceased person from whom the reservable property came.
These reservatarios have the right to represent their
ascendants (fathers and mothers) who are the brothers of
the said deceased person and relatives within the third
degree.
- If this property was in fact clothed with the character and
condition of reservable property when Severina inherited
same from her son Apolonio III, she did not thereby acquire
the dominion or right of ownership but only the right of
usufruct or of fiduciary with the necessary obligation to
preserve and to deliver or return it as such reservable
property to her deceased son's relatives within the third
degree, among whom is her daughter, Mercedes.
- According to the provisions of law, ascendants do not inherit
the reservable property, but its enjoyment, use or trust,
merely for the reason that said law imposes the obligation to
reserve and preserve same for certain designated persons
who, on the death of the said ascendants reservists acquire
the ownership of said property
- Said property reverts to said line as long as the
aforementioned persons who, from the death of the
ascendant-reservists, acquire in fact the right of
reservatarios (person for whom property is reserved), and
are relatives, within the third degree, of the descendant from
whom the reservable property came.
- Reservable property neither comes, nor falls under, the
absolute dominion of the ascendant who inherits and
receives same from his descendant, therefore it does not
form part of his own property nor become the legitimate of
his forced heirs. It becomes his own property only in case
that all the relatives of his descendant shall have died
(reservista) in which case said reservable property losses
such character.
Edroso v. Sablan
Sienes v. Esparcia
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- Lot 3368 originally belonged to Saturnino Yaeso.
- Saturnino had four children with his first wife Teresa
Ruales- Agaton, Fernando, Paulina and Cipriana.
- Saturnino also had a second wife, Andrea Gutang,
with whom he had an only son named Francisco.
- When Saturnino died, Francisco inherited the
western portion of Lot 3368. hence, it was accordingly
transferred in the name of Francisco.
- After reaching the age of 20, still being single,
Francisco died with no other heir except his mother Andrea.
- Andrea, then executed an extra-judicial settlement
and sale, where he sold the land to appellants. Thus, the
vendees demanded from Paulina Yaeso the surrender of
the OCT covering the said land, but the latter refused.
- Subsequently, Cipriana and Paulina Yaeso, the
surviving half-sisters of Francisco, declared the property in
their name and executed a deed of sale in favor of the
spouses Fidel Esparcia and Paulina Sienes. The spouses
procured a TCT over the land in their name.
- Andrea Gutang died in December 1951 while being
survived by Cipriano Yaeso.
Whether or not there was Reserva Troncal
- SC held that there is Reserva Tronacal.
- It is clear from the facts that Francisco Yaeso
inherited by operation of law from his father Saturnino.
Upon Francisco’s death, unmarried and without
descendants, Andrea Gutang as the sole heir inherited the
land from the former.
- Hence she is under obligation to reserve it for the
benefit of relatives within the third degree belonging to the
line from which said property came.
Whether or Not the Spouses Esparcia are entitle to the land
sold to them by Cipriana yaeso
- As between the transfer made by Andrea Gutang and
the transfer made by Cipriana, the latter is the only one
deemed valid and binding.
- First, although Andrea Gutang inherited the land, she
only inherits it as a reservista. She therefore has the
obligation to preserve the property for the reservatorios or
reservees. In this case, these are the half-sisters of
Francisco.
- Second, the transferee in the sale made by Andrea
only acquires the latter’s revocable and conditional
owenership of the property. Hence, if Andrea dies and she
is survived by the reservees, title pass to the latter by
operation of law.
- Cipriana, having survived Gutang, now obtains
exclusive ownership over the land and the sale made by
Gutang is of no legal effect.
- Third, Cipriana as the reservee, had the right to
alienate the property even before Gutang’s death. In which
case, the sale becomes absolute if the reservee survives
the reservista. The sale therefore made by Cipriana and
Pualina is deemed effective.
- However, in so much as the Esparcia spouses did
not appeal the decision reverting the property in the estate
of Cipriano, they can not recover the same.
- The reserved property is subject to two suspensive
conditions: a) death of the ascendant obliged to reserve, b)
the survival, at the time of death, or relatives within the third
degree belong to the line from which the property came.
- The reservatorios have a right of expectancy over the
property. The expectancy ripens into ownership if the
reservatorios survive the reservists.
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SUCCESSION REVIEWER
- The right is alienable but subject to the same suspensive
condition. The right is registrable.
Cano v. Director
- In a Land Registration case, a final decree and title
over a parcel of land was adjudicated in favor of Maria
Cano, subject to Reserva Troncal in favor of Eustaqia
Guerrero.
- It appears from the stipulation of facts in the
registration case that the subject lot was acquired by Maria
Cano from her deceased daughter, who in turn inherited the
same from her father Evaristo Guerrero. Hence, falling
squarely under Art 891.
- It was found that Eustaquia Guerrero was of the
nearest kin of Evaristo, hence the former excludes all other
relatives.
- Thereafter the counsel of Eustaqia fileda motion with
the Cadastral Court alleging the death of maria Cano, the
reservista,a nd hat the Oct therefore be cancelled and a
new one issued in favor of Eustaqia Guerrero.
- Despite opposition, the lower court granted the
petition for the new issuance of a new certificate.
- The oppositors, heirs of Maria Cano, insisted that the
ownership of the reservatorio requires a separate judicial
administration proceeding (intestestate proceeding), where
there will be first a declaration that the elements of reserve
troncal are existing.
Whether or not a separate judicial proceeding is required
- There is no need for a separate intestate proceeding.
- First, the stipulation of facts in the registration
proceedings already manifests the existence of reserve
troncal infavor of Esuataqia. The proceeding being final, the
oppositors are barred from questioning the existence
thereof.
- The contention that there is a need for a separate
proceeding rests upon the assumption that the reservatorio
will succeed or inherit the reserved property from the
reservista, which is not the case.
- Upon the death of the reservista, the reservatario
becomes, automatically and by operation of law, the
owner of the reserved property.
- The property is no part of the estate of the reservista,
hence its acquisition by the reservatario may be entered in
the property records without the necessity of estate
proceedings.
- The reserved property is not part of the reservista’s estate
and the reservatario acquires the property automatically and
by operation of law.
De Papa v. Camacho
- Defendant Camacho and Plaintiffs are legitimate relatives,
plaintiffs being the grandaunt and granduncles of the
defendant.
- They have a common ancestor the late Balbino Tioco,
father of the plaintiffs and great grandfather of defendant.
- Romana Tioco, the sister of Balbino gratuitously donated to
the legitimate sister of plaintiffs 4 parcels of land.
- And that sister died intestate in 1915, survived by her
husband and 2 legit children and leaving the four parcels of
land as the inheritance of her said 2 children in equal pro
indiviso shares.
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- That Balbino died intestate surivived by his legit children by
his wife and legit grandchildren.
- In the partition of his estate, 3 parcels of land were
adjudicated as the inheritance of the late Toribia Tioco, but
as she had predeceased her father, the 3 parcels of land
devolved upon her 2 legit children one of which is Faustino
Dizon.
- Faustino then died intestate leaving his ½ share in the 7
parcels of land to his father Eustacio subject to reserve
troncal.
- Trinidad Dizon-Tongko died intestate and her rights and
interests in the parcels of land were inherited by her only
child, Dalisay Camacho.
- Eustacio then died survived only by his only legit
descendant , the child mentioned above.
- Dalisay now owns ½ of all the 7 parcles of land. She now
also claims the other half the said parcels of land by virtue
of the reserve troncal upon the death of Faustino Dizon.
- The lower court declared the plaintiffs Francisco Tioco,
Manuel Tioco and Nicolas Tioco as well as Dalisay
Camacho, entitled as reservatorios, to one-half of the seven
parcels of land in dispute.
- Hence this appeal.
WON, all relatives of the praepositus within the 3rd degree in
the appropriate line succeed without distinction to the
reservable property upon the death of the reservista
- Yes, they succeed without distinction. And the rules on
intestacy shall govern as held in a previous decision by this
Court.
- Nephews and nieces of whole blood were each entitled to a
share double that of each of the nephews and nieces of half
blood in accordance with the Civil Code.
- Reserva merely determines the group of relatives to whom
the property should be returned; but within that group, the
individual right to the property should be decided by the
applicable rules of ordinary intestate succession since Art.
891 does not specify otherwise.
- Reversion of the reservable property being governed by the
rules on intestate succession, the plaintiffs-appelless must
be held without any right thereto because, as aunts and
uncles, respectively of Faustino Dizon, they are excluded
from the succession by his niece, the defendant-appellant,
although they are related to him within the same degree as
the latter.
- Had the property been passed directly, there is no doubt
that they would have been excluded by the defendants-
appellees under the rules of intestate succession. There is
no reason why a different rule would apply in this case.
- The Defendant-appellee Dalisay Camacho is entitled to the
entirety of the reversionary property to the exclusion of the
plaintiffs-appellees.
- Lower court judgment is reversed and the complaint is
dismissed.
- In reserva troncal, the successional rights of the relatives of
the praepositus within the 3rd degree are determined by,
and subject to the rules of intestate succession; so as to
exclude uncles and aunts of the descendant from the
reservable property by his niece or nephew.
Frias v. CFA
- In the first marriage of Jose Frias Chua with Patricia
S. Militar, he sired three children, namely: Ignacio, Lorenzo
and Manuel. When Militar died, Jose contracted a second
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marriage with Consolacion de la Torre with whom he had a
child by the name of Juanito. Manuel died without leaving
any issue. Then Jose died intestate leaving his widow
Consolacion and his son Juanito, Ignacio, and Lorenzo. In
the Intestate Proceeding, the court issued an
orderadjudicating, among others, the one-half (1/2) portion
of Lot No. 399 and the sum of P8,000.00 in favor of
Consolacion, the other half in favor of Juanito, P3,000.00 in
favor of Lorenzo; and P1,550.00 in favor of Ignacio.
- Juanito died intestate without any issue. After his
death, is mother Consolacion succeeded to his pro-indiviso
share of her son Juanito. Consolacion then died intestate
leaving no direct heir either in the descending or ascending
line except her brother and sisters.
- In the "Intestate Estate of Consolacion de la Torre",
the petitioners herein, Ignacio, and Dominador and
Remedios Chua, the supposed legitimate children of the
deceased Lorenzo filed the complaint praying that the one-
half (1/2) portion of Lot No. 399 which formerly belonged to
Juanito Frias Chua but which passed to Consolacion, be
declared as reservable property for the reason that the lot
in question was subject to reserva troncal pursuant to
Article 981 of the New Civil
- The CFI rendered a decision dismissing the
complaint of petitioners. According to it, the property in
question was not acquired by Consolacion and Juanito
gratuitously but for a consideration, namely, that the
legatees were to pay the interest and cost and other fees
resulting from Civil Case No. 5300 to Standard Oil Co. of
New York the amount of P3,971.20
Whether the property in question as acquired by Juanito Frias
Chua from his father, Jose Frias Chua, gratuitously or not.
- It is evident from the record that the transmission of the
property in question to Juanito upon the death of his father
Jose was by means of a hereditary succession and
therefore gratuitous.
- The obligation of paying the Standard is imposed upon
Consolacion and Juanito not personally by the deceased
Jose in his last will and testament but by an order of the
court. As long as the transmission of the property to the
heirs is free from any condition imposed by the deceased
himself and the property is given out of pure generosity, it is
gratuitous. The order of the court does not change the
gratuitous nature of the transmission of the property to him.
As far as the deceased Jose is concerned the transmission
of the property to his heirs is gratuitous. This being the case
the lot in question is subject to reserva troncal under Art.
891 of the New Civil Code.
- In order that a property may be impressed with a
reservable character the following requisites must exist, to
wit: (1) that the property was acquired by a descendant
from an ascendant or from a brother or sister by gratuitous
title; (2) that said descendant died without an issue: (3) that
the property is inherited by another ascendant by operation
of law; and (4) that there are relatives within the third
degree belonging to the line from which said property
came.
- The transmission is gratuitous or by gratuitous title when
the recipient does not give anything in return It matters not
whether the property transmitted be or be not subject to any
prior charges; what is essential is that the transmission be
made gratuitously, or by an act of mere liberality of the
person making it, without imposing any obligation on the
part of the recipient; and that the person receiving the
property gives or does nothing in return; the essential thing
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is that the person who transmits it does so gratuitously,
from pure generosity, without requiring from the transferee
any prestation.
De Los Reyes v. Paterno
- The subject properties were the conjugal property of
Tomas G. Del Rosario and his wife, Juana Reyes. Juana
died and her daughter Concepcion was declared to be her
sole heir. However, Concepcion died at the age of 9 and all
her rights to the half of the property passed to her father,
Tomas, who was then already the owner of the other half.
Tomas registered the properties and after a year his title
thereto became absolute and complete.
- After 6 years, plaintiff in this case seeks to recover
one half of the subject properties, on the basis of reserva
troncal.
Whether or not the plaintiff may still recover the property after
the lapse of one year from the finality of the registration
proceedings on the ground of reserve troncal.
- No.
- The reservable right may be lost to the holder when
he fails or neglects to oppose the registration of the land in
which such right exists under the Torrens System.
- Unless a reservable right is protected during the pendency
of the action for the registration of land, or within the
allowable period to contest such as prescribed by law, such
right is lost forever.
Sumaya v. IAC
- Raul Balantakbo inherited 1/3 interest in a parcel of land
from his father (1st property) and a 1/7 interest in 10
parcels of lands from his maternal grandmother (2nd
property).
- Raul died intestate, single, and leaving only his mother,
Consuelo, as his sole surviving heir to the real properties.
- Subsequently, Consuelo adjudicated unto herself the said
properties by way of an affidavit.
- Consuelo sold the first property to Sumaya. Sumaya sold it
Villa Honorio which transferred and assigned it in favor of
Agro-Industrial.
- The documents were registered in the RD of Laguan and
corresponding certificates of titles were issued.
- Consuelo later sold the 2nd property to Villa Honorio which
later transferred and assigned the same to Laguna Agro-
Industrial.
- The parties admit that the certificates of titles covering
these properties do not contain any annotation of its
reservable character.
- When Consuelo died, the brothers in full blood of Raul and
the surviving children of another brother of Raul filed a case
to recover the properties which they claimed were subject
to reserva troncal in their favor.
- The trial court ordered the petitioners to return the parcels
of land the plaintiffs and to account and pay for the
produces from the said properties.
- The CA affirmed the decision.
- Hence, this petition.
Whether the defendants were innocent purchasers for value.
- NO. The fact remains that the affidavit of self-adjudication
executed by Consuelo stating the source of the properties
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SUCCESSION REVIEWER
thereby showing the reservable nature thereof was
registered with the RD of Laguna. This is sufficient notice to
the whole world.
- It was clearly stated in the affidavit that the properties were
inherited by Raul from his father and maternal grandmother
respectively.
- In this case, the affidavit executed by Conseulo which
contained a statement that the property was inherited from
a descendant, Raul, which has likewise inherited by the
latter from another descendant, was registered with the RD.
The failure of the RD to annotate the reservable character
of the property in the certificate of title cannot be attributed
to Consuelo.
- Moreover, there is sufficient proof that the petitioners had
actual knowledge of the reservable character of the
properties before they bought the same from Consuelo.
- Moreover, the court found that the the partiers were long
time acquaintances. They knew all along that the properties
litigated in this case were inherited by Raul from his father
and from his maternal grandmother and that Consuelo
inherited these from his son Raul.
Whether the cause of action of private respondents has
prescribed.
- No. The cause of action of the reservees did not commence
upon the death of the propositus Raul Balantakbo but upon
the death of the reservor Consuelo. The reserva is
extinguished upon the death of the reservor, as it then
becomes a right of full ownership on the part of the
reservatarios, who can bring a reivindicatory suit therefor.
- When a conveyance has been properly recorded, such
record is constructive notice of its contents and all interests,
legal and equitable, included therein.
- Under the rule of notice, it is presumed that the purchaser
has examined every instrument of record affecting the title.
Such presumption is irrebutable.
- Consistent with the rule in reserva viudal where the person
obliged to reserve (the widowed spouse) had the obligation
to annotate in the Registry of Property the reservable
character of the property, in reserva troncal, the reservor
(the ascendant who inherited from a descendant property
which the latter inherited from another descendant) has the
duty to reserve and therefore, the duty to annotate also.
- The jurisprudential rule requiring annotation in the Registry
of Property of the right reserved in real property subject of
reserva viudal insofar as it is applied to reserva troncal
stays despite the abolition of reserva viudal in the New Civil
Code. This rule is consistent with the rule provided in the
second paragraph of Section 51 of P.D. 1529, which
provides that: "The act of registration shall be the operative
act to convey or affect the land insofar as third persons are
concerned."
Rioso v. Rocha
- Maria was married to Mariano. They had 3 children,
Santiago, Jose, Severina. Severina died during infancy.
- Santiago (now deceased) was married to Francisca and
had 2 children, Magin and Consolacion.
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- Jose married Marcelina and had one child who died before
Jose.
- Mariano left a will dividing his property between Santiago
and Jose, giving the latter 11 parcels of land. Upon Jose’s
death, he named his wife Marcelina as his only heir.
- When Jose’s will was going to be probated, Marcelina and
Maria (the mother) entered into a contract where they
divided the property left by Jose between themselves.
- Maria later sold parcels 1-6, 10 and 11 to Marcelina, who
later sold them to Pablo Rocha. Pablo later returned
parcels 1-6 to Maria saying that they were erroneously
included in the sale made by Maria to Marcelina.
- Magin (the daughter of Santiago) is now claiming that she
and her sister Consolacion had a share in the 11 parcels
passed on to Marcelina by Jose.
WON the 11 parcels were reservable properties.
- YES. The 11 parcels of land were acquired by Jose by
lucrative title from his father Mariano and that after the
death of Jose, they passed on to Maria by operation of law.
- Magin and Consolacion were the nearest relatives within
the 3rd degree of the line from which the property came.
- Maria was ordered to acknowledge the right of Magin and
Consolacion to the reservation of the parcels of land, which
was to be recorded in the RD.
- As to Marcelina and Pablo, they could not have acquired a
better title than that held by Maria Corral and if the latter's
title was limited by the reservation and the obligation to
note it in the registry of deeds.
- Pablo was also ordered to register parcels 10 and 11 as
reservable property in the RD since he knew that the
property was reservable. He was a legatee in the will.
- For purposes of reservation and the rights and obligations
created thereby, in connection with the relatives benefited,
the property must not be deemed transmitted to the heirs
from the time the extrajudicial partition was made, but from
the time said partition was approved by the court.
- The reservoir is bound to register the reservation within 90
days from the date of adjudication of the property to the
heirs by the court.
- Where a reservable property is sold by the reservoir, without
having registered its reservable character, the obligation to
register the same is transferred to the purchaser, if the latter
knew of the reservable character of the property.
Art. 904. The testator cannot deprive his
compulsory heirs of their legitime, except in
cases expressly specified by law.
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Neither can he impose upon the same any
burden, encumbrance, condition, or
substitution of any kind whatsoever.
• As already laid down in Art886, the legitime is not within
the testator’s control. It passes to the compulsory heirs
by strict operation of law.
• Testator Devoid of Power to Deprive Compulsory
Heirs of Legitime
 It is the law, not the testator,
which determines the transmission of the legitimes.
Consequently, it is not within the testator’s power to
deprive the compulsory heirs of their legitime.
 EXCEPTION – the only instance
in which the law allows the testator to deprive the
compulsory heirs of their legitimes is
DISINHERITANCE under Arts915-923, the grounds
being set forth under Arts919-921.
• Testator Devoid of Power to Impose Burdens on
Legitime
 As also reiterated in Art872, the
testator cannot impair the legitime, as a
consequence of the principle that the legitime
passes by strict operation of law.
• EXCEPTIONS – When the Law grants the Testator
Some Power over the Legitime
1. Article 1080 par2 –
“A parent who, in the interest of his or her
family, desires to keep any agricultural, industrial,
or manufacturing enterprise intact, may avail
himself of the right granted him in this article, by
ordering that the legitime of the other children to
whom the property is not assigned, be paid in
cash.”
2. Article 1083 par1 –
“Every co-heir has a right to demand the
division of the estate unless the testator should
have expressly forbidden its partition, in which
case the period of indivision shall not exceed 20
years as provided in article 494. This power of the
testator to prohibit division applies to the legitime.”
• Restrictions on Legitime Imposed by Law
A. Article 159, Family Code
“The Family Home shall continue despite the
death of one or both spouses or of the unmarried
head of the family for a period of 10 years or for
as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court
finds compelling reasons therefor. This rule shall
apply regardless of whoever owns the property or
constituted the family home.”
B. The Reserva Troncal
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Art. 905. Every renunciation or compromise as
regards a future legitime between the person
owing it and his compulsory heirs is void, and
the latter may claim the same upon the death
of the former; but they must bring to collation
whatever they may have received by virtue of
the renunciation or compromise.
• Reason for the Rule
 Before the predecessor’s death,
the heir’s right is simply inchoate.
• Duty to Collate
 Any property which the
compulsory heir may have gratuitously received
from his predecessor by virtue of the renunciation or
compromise will be considered an advance on his
legitime and must be duly credited.
• Scope of Prohibition
 This article applies only to
transactions of compromise or renunciation between
the predecessor and the prospective compulsory
heir.
• QUESTION – Is a transaction between the prospective
compulsory heir and another prospective compulsory
heir, or between a prospective compulsory heir and a
stranger, interdicted?
 YES under Article 1347 par2:
“No contract may be entered into upon future
inheritance except in cases expressly provided by
law.”
Art. 906. Any compulsory heir to whom the
testator has left by any title less than the
legitime belonging to him may demand that
the same be fully satisfied.
• RIGHT OF COMPLETION OF LEGITIME
 This rule applies only to
transmissions by gratuitous title.
• Cross-References, related articles
 Art855 – if the title by which the
testator transmitted property is intestate succession
Art. 855. The share of a child or descendant
omitted in a will must first be taken from the
part of the estate not disposed of by the will, if
any; if that is not sufficient, so much as may be
necessary must be taken proportionally from the
shares of the other compulsory heirs.
 In relation to Arts909 and 910
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• The principle underlying this rule on completion of

legitime is that anything that a compulsory heir
receives by gratuitous title from the predecessor is
considered an advance on legitime and is deducted
therefrom
 EXCEPTIONS
1. Art1062 – if the predecessor gave the
compulsory heir a donation inter vivos and
provided that it was not to be charged against
the legitime.
2. Art1063 – testamentary dispositions
made by the predecessor to the compulsory
heir, unless the testator provides that it
should be considered part of the legitime.
Art. 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs
shall be reduced on petition of the same,
insofar as they may be inofficious or
excessive.
• Based on the same principle as art904. If the
testamentary dispositions exceed the disposable portion,
the compulsory heirs may demand their reduction to the
extent hat the legitimes have been impaired. To allow the
testator to make testamentary dispositions that impair the
legitime would in effect allow him to deprive the
compulsory heirs of part of their legitime – an act which
is prohibited by Art904.
• This article should be read together with Art911.
Art. 908. To determine the legitime, the value of
the property left at the death of the testator
shall be considered, deducting all debts and
charges, which shall not include those
imposed in the will.
To the net value of the hereditary estate,
shall be added the value of all donations by
the testator that are subject to collation, at the
time he made them.
• The NET HEREDITARY ESTATE
 Articles 888-903 set forth the
legitimes of the compulsory heirs, either inheriting
alone or in various combinations. Those articles
gave the legitimes in the form of fractions, or
proportions of the decedent’s estate.
 This article makes possible the
computation of the absolute amounts of the
legitimes by laying down the manner of computing
the net value of the estate [the net hereditary
estate], on which the proportions are based.
MANNER OF COMPUTING THE
HEREDITARY ESTATE
1. Inventory all the Existing Assets
a) This will involve appraisal/valuation
of the existing assets at the time of the
decedent’s death
b) These assets include only those
properties that survive the decedent, i.e.
those which are not extinguished by his
death [in relation to articles 774 and 777].
c) The value determined by this
inventory will constitute the GROSS
ASSETS.
2. Deduct Unpaid Debts and Charges
a) All unpaid obligations of the
decedent should be deducted from the
gross assets.
b) Only those obligations with
monetary value which are not extinguished
by death are considered. Thus, those
obligations which are purely personal are
not taken into account.
c) The difference between the gross
assets and the unpaid obligations will be
the AVAILABLE ASSETS.
3. Add the Value of Donations Inter Vivos
a) To the available assets should be
added all the inter vivos donations made
by the decedent.
b) The donations inter vivos shall be
valued as of the time they were
respectively made. Any increase or
decrease in value from the time they were
made to the time of the decedent’s death
shall be for the account of the donee, since
the donation transfers ownership to the
donee.
c) The sum of the available assets and
all the donations inter vivos is the NET
HEREDITARY ESTATE.
• COLLATION
 Collation is the act by virtue of
which descendants or other forced heirs who
intervene in the division of the inheritance of an
ascendant bring into the common mass, the property
which they received from him, s that the division

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may be made according to law and the will of the
testator.
 Collation is only required of
compulsory heirs succeeding with other compulsory
heirs and involves property or rights received by
donation or gratuitous title during the lifetime of the
decedent.
 The purpose is to attain equality
among the compulsory heirs in so far as possible for
it is presumed that the intention of the testator or
predecessor in interest in making a donation or
gratuitous transfer to a forced heir is to give him
something in advance on account of his share in the
estate, and that the predecessor’s will is to treat all
his heirs equally, in the absence of any expression
to the contrary.
 Collation does not impose any
lien on the property or the subject matter of
collationable donation. What is brought to collation is
not the property donated itself, but rather the value
of such property at the time it was donated, the
rationale being that the donation is a real alienation
which conveys ownership upon its acceptance,
hence any increase in value or any deterioration or
loss thereof is for the account of the heir or donee.
[Vizconde v CA]
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.
• Donations Inter Vivos to Compulsory Heirs
 Donations inter vivos to a
compulsory heir shall be imputed to his legitime, i.e.
considered as an advance on his legitime.
 Coverage of Rule
o Applies to ALL compulsory heirs
o Note that these 2 articles omit [inadvertently]
ascendants who succeed as compulsory heirs.
This rule applies to them as well.
o For obvious reasons, this rule has no
application to a surviving spouse.
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 Exception
o This rule of imputation to the legitime will not
apply if the donor provided otherwise [in relation
to Article 1062], in which case the donation will
be imputed to the disposable portion of the
estate.
• Donations Inter Vivos to Strangers
 A stranger is anyone who does
not succeed as a compulsory heir.
 Donations inter vivos to
strangers are necessarily imputed to the
DISPOSABLE PORTION.
Art. 911. After the legitime has been determined
in accordance with the three preceding
articles, the reduction shall be made as
follows:
(1) Donations shall be respected as long as
the legitime can be covered, reducing or
annulling, if necessary, the devises or
legacies made in the will;
(2) The reduction of the devises or legacies
shall be pro rata, without any distinction
whatever.
If the testator has directed that a
certain devise or legacy be paid in
preference to others, it shall not suffer
any reduction until the latter have been
applied in full to the payment of the
legitime.
(3) If the devise or legacy consists of a
usufruct or life annuity, whose value may
be considered greater than that of the
disposable portion, the compulsory heirs
may choose between complying with the
testamentary provision and delivering to
the devisee or legatee the part of the
inheritance of which the testator could
freely dispose.
• This provision implements the principle laid down in
Articles 872, 886 and 904 - the inviolability of the
legitime.
• Thus, if the legitimes are impaired, the gratuitous
dispositions of the testator [either inter vivos or mortis
causa] have to be set aside or reduced as may be
required to cover the legitimes.
• Method of Reduction
 There is an order of priorities to
be observed in the reduction of the testator’s
gratuitous dispositions, thus –
A. First, reduce pro rata the non-preferred legacies
and devises [Art911 (2)], and the testamentary
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dispositions [Art907]. Among these legacies,
devises and testamentary dispositions, there is
no preference.
B. Second, reduce pro rata the preferred legacies
and devises [Art911, last par.]
C. Third, reduce the donations inter vivos
according to the inverse order of their dates [i.e.
the oldest is the most preferred] [Art773].
 These reductions shall be to the
extent required to complete the legitimes, even if in
the process the disposition is reduced to nothing.
 An apparent conflict exists
between this article and Art950, regarding the
order of preference among legacies and devises,
should reductions be necessary. [See discussions
under Art950]
• DEVISES/LEGACIES OF USUFRUCT/ LIFE
ANNUITIES/ PENSIONS UNDER PAR. 3
 The following principles shall be
borne in mind:
A. If, upon being capitalized according to
actuarial standards, the value of the grant
exceeds the free portion [i.e. it impairs the
legitime], it has to be reduced, because the
legitime cannot be impaired.
B. The testator can impose no usufruct or
any other encumbrance on the part that passes
as legitime.
C. Subject to the 2 rules stated, the
compulsory heirs may elect between:
i. Ceding to the devisee/legatee
the free portion[or the proportional part
thereof corresponding to the said
legacy/devise, in case there are other
dispositions], or
ii. Complying with the terms of the
usufruct or life annuity or pension.
Art. 912. If the devise subject to reduction should
consist of real property, which cannot be
conveniently divided, it shall go to the
devisee if the reduction does not absorb one-
half of its value; and in a contrary case, to the
compulsory heirs; but the former and the
latter shall reimburse each other in cash for
what respectively belongs to them.
The devisee who is entitled to a legitime
may retain the entire property, provided its
value does not exceed that of the disposable
portion and of the share pertaining to him as
legitime.
• This rule covers cases where:
1) The devise has to be reduced, and
2) The thing given as a devise is indivisible
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• RULES
1. If the extent of reduction is LESS THAN ½ of
the value of the thing – it should be given to
the devisee.
2. If the extent of reduction is ½ OR MORE of the
value of the thing – it should be given to the
compulsory heir.
• In either case, there should be pecuniary reimbursement
to the party who did not get his physical portion of the
thing devised.
Art. 913. If the heirs or devisees do not choose to
avail themselves of the right granted by the
preceding article, any heir or devisee who did
not have such right may exercise it; should
the latter not make use of it, the property shall
be sold at public auction at the instance of
any one of the interested parties.
• This article applies if neither party [the compulsory heir/s
and the devisee] elects to exercise his right under
Art912.
• How the Thing Devised Should be Disposed Of:
A. Any other heir or devisee, who elects to do so,
may acquire the thing and pay the parties [the
compulsory heir and the devisee in question] their
respective shares in money.
B. If no heir or devisee elects to acquire it, it shall be
sold at public auction and the net proceeds
accordingly divided between the parties
concerned.
• Note – this rule of constructive partition is similar to that
in co-ownership [Art498] and in partition of the
decedent’s estate [Art1086], except that, in these two
latter cases, the acquisition by one of the co-owners or
co-heirs can be done only if all the co-owners or co-heirs
agree to such acquisition.
Art. 914. The testator may devise and bequeath
the free portion as he may deem fit.
• Simply a re-statement of Art842.
CASES
Vizconde v. CA
Vda. De Tupas v. RTC
- The petition is brought by Paternza Lucerna, wife of
Epifanio Tupas, as the sole heir to the estate of the latter.
- It was found that a year before Epifanio’s death, he donated
some three parcels of land in favor of Tupas Foundation,
Inc.
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- The wife is contending that the donationw as inofficious as

it left her destitute of any inheritance.
- Hence, she prayed to have the donation declared REQUISITES OF A VALID DISINHERITANCE
inofficious insofar as it prejudiced her legitime, therefore
reducible by such proportion as might be deemed justified 1. It must be made in a Will
and the resulting deduction delivered to her. - Must be formally valid and admitted to probate
- The lower court contended that a) Article 900 relied upon
by plaintiff is not applicable because the properties which 2. It must be for a Cause specified by law under
were disposed of by way of donation were no longer part of Articles 916 in relation to Articles 919-921
his hereditary estate at the time of his death b) the donated - For Descendants [Article 919]
properties were Epifanio's capital or separate estate; and a) Guilty of an Attempt Against the Life of
(3) Tupas Foundation, Inc. being a stranger and not a the Testator or the latter’s spouse,
compulsory heir, the donation inter vivos made in its favor descendants or ascendants
was not subject to collation under Art. 106 1. b) Accused Testator of Crime punishable
by 6 years or more, and the accusation is
Whether or not the lower court decided correctly. found to be Groundless
- SC held in the negative. c) Convicted of Adultery or Concubinage
- First, although the court recognized the right of individuals with Spouse of the Testator
to donate, the same is subject to certain limitations, one of d) By Fraud, Violence, Intimidation or
which is that he cannot give by donation more than he can Undue Influence causes Testator to Make
give by will Will or Change 1 already made.
- If he does, so much of what is donated as exceeds what he e) Refusal without justifiable cause to
can give by will is deemed inofficious and the donation is support the parent or ascendant who
reducible to the extent of such excess, though without disinherits
prejudice to its taking effect in the donor's lifetime or the f) Maltreatment of testator by word/deed
donee's appropriating the fruits of the thing donated g) Leads dishonorable or disgraceful life
- Second, such a donation is, moreover, collationable. The
value of the thing donated is imputable into the hereditary
estate of the donor at the time of his death for the purpose
of determining the legitime of the forced or compulsory
heirs and the freely disposable portion of the estate. (This
is true likewise with respect to donations made to strangers
as in gifts made to compulsory heirs, although the
language of Article 1061 of the Civil Code would seem to
limit collation to the latter class of donations.)
- The said properties being collationable, the SC ordered the
case remanded for further determination as to whether the
donation is inofficious insofar as it is in excess of the
disposable free portion of the deceased’s estate and should
thereby be reduced to the amount of such excess.
- A person's prerogative to make donations is subject to
certain limitations, one of which is that he cannot give by
donation more than he can give by will.
- If he does, so much of what is donated as exceeds what he
can give by will is deemed inofficious and the donation is
reducible to the extent of such excess, though without
prejudice to its taking effect in the donor's lifetime or the
donee's appropriating the fruits of the thing donated.

SECTION 6. –
DISINHERITANCE

Art. 915. A compulsory heir may, in consequence

of disinheritance, be deprived of his legitime,
for causes expressly stated by law.

• Art904 sets forth the rule that the testator cannot deprive
the compulsory heirs of the legitime. The sole exception
to this rule is DISINHERITANCE. Thus, disinheritance is
the only instance in which the testator may deprive his
compulsory heirs of their legitime.

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- For Ascendants [Article 920]
a) Abandoned children or induced
daughters to live corrupt or immoral life or
attempted against their virtue
b) Convicted of attempt against life of
testator, his or her spouse, descendant or
ascendants
c) Accused testator of a Crime
punishable by Imprisonment for 6 years or
more, if the accusation has been found to
be False
d) Convicted of adultery / concubinage
with the spouse of the testator
e) By Fraud, Violence, Intimidation or
Undue Influence causes testator to Make a
Will or Change one already made.
f) Loss of Parental Authority for
causes specified in this Code
g) Refusal to support Children or
Descendants W/O justifiable cause
h) Attempt by 1 of the parents against
the life of the other, unless there has been
reconciliation between them
- For Surviving Spouse [Article 921]
a) Convicted of Attempt against life of
Testator, his/her descendants/ascendants.
b) Accused Testator of a Crime
punishable with imprisonment for 6 years or
more, and the accusation is fond to be
False.
c) Spouse, by Fraud, Violence,
Intimidation, or Undue Influence causes the
testator to make a Will or change one
already made.
d) Has given cause for legal separation
e) Has given grounds for loss of
parental authority
f) Unjustifiable refusal to support the
children or the other spouse
- If this is not present, or the cause specified is
not among those set forth in the Code, there is
ineffective disinheritance under article 918.
3. It must Specify the cause [Arts 916 and 918]
- If this is not present, there is ineffective
disinheritance under article 918.
4. It must be Unconditional
5. It must be Total
6. The cause must be True
7. If the truth of the cause is Denied, it must be
Proved by the proponent.
- If the controverted cause is not proved, there
• Note – the strictness of the requisites indicates the policy
of the law. It regards disinheritance with disfavor and will
grant it only with reluctance, because disinheritance
results in deprivation of legitime.
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• EFFECT OF DISINHERITANCE
 The effect of disinheritance is
not just deprivation of the leigtime, but total
exclusion of the disinherited heir from the
inheritance. Thus, the disinherited heir forfeits:
A. His legitime,
B. His intestate portion, if any, and
C. Any testamentary disposition made in a
prior will of the disinheriting testator.
Art. 916. Disinheritance can be effected only
through a will wherein the legal cause
therefor shall be specified.
• Made in a Will – the 1st clause of this article constitutes
the first requisite of disinheritance, that it must be made
in a will.
 The will obviously, must be
FORMALLY VALID and must be admitted to
PROBATE.
• Legal Cause – is the 2nd requisite for a valid
disinheritance. The causes allowed by law are
enumerated in Articles 919 [for descendants], 920 [for
ascendants] and 921 [for the surviving spouse].
Art. 917. The burden of proving the truth of the
cause for disinheritance shall rest upon the
other heirs of the testator, if the disinherited
heir should deny it.
• 7TH requisite – it must be noted that the truth here is not
presumed, it must be proved. All the disinherited heir
need do is deny the cause and the burden is thrown
upon those who would uphold the disinheritance.
Art. 918. Disinheritance without a specification of
the cause, or for a cause the truth of which, if
contradicted, is not proved, or which is not
one of those set forth in this Code, shall
annul the institution of heirs insofar as it may
prejudice the person disinherited; but the
devises and legacies and other testamentary
dispositions shall be valid to such extent as
will not impair the legitime.
• This article sets forth requisites 3 and 6 of disinheritance.
• INEFFECTIVE DISINHERITANCE
 If the disinheritance lacks one or
other of the requisites mentioned in this article, the
heir in question gets his legitime.
 As to whether he will also get
any part of the intestate portion or not, this depends
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on whether the testator gave away the free portion
through testamentary dispositions.
o If he did, these dispositions are VALID and the
compulsory heir improperly disinherited gets
only his legitime.
o If the testator did not, the compulsory heir will
be entitled to his corresponding share of the
free portion as well.
 Note the difference between the
effect of ineffective disinheritance and that of
preterition under article 854:
Art. 854. 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.
If the omitted compulsory heirs should
die before the testator, the institution shall
be effectual, without prejudice to the right
of representation.
Art. 919. The following shall be sufficient causes
for the disinheritance of children and
descendants, legitimate as well as
illegitimate:
(1) When a child or descendant has been
found guilty of an attempt against the
life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused
the testator of a crime for which the law
prescribes imprisonment for six years
or more, if the accusation has been
found groundless;
(3) When a child or descendant has been
convicted of adultery or concubinage
with the spouse of the testator;
(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;
(5) A refusal without justifiable cause to
support the parent or ascendant who
disinherits such child or descendant;
(6) Maltreatment of the testator by word or
deed, by the child or descendant;
(7) When a child or descendant leads a
dishonorable or disgraceful life;
(8) Conviction of a crime which carries with
it the penalty of civil interdiction.
• There are 8 Causes for disinheritance of Children or
Descendants – Whether Legitimate or Illegitimate
[Exclusive enumeration]
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1. Has been found Guilty of an Attempt Against
the Life of the Testator or the latter’s spouse,
descendants or ascendants
o The word attempt here is used non-
technically and should not be construed to
limit the provision to the attempted stage of
the felony.
o All stages of commission are included –
whether attempted, frustrated, or
consummated.
o The felony, obviously, must be an intentional
one.
o FINAL CONVICTION is required.
o Question – must the disinheritance be
subsequent to the conviction or may it
precede the conviction?
- By the wording of the law, it seems that it
must be subsequent [?]
2. Has Accused the Testator of a Crime
punishable by 6 years or more, and the
accusation is found to be Groundless
o The word accused here is used generically
and will include:
a) Filing of a complaint before the
prosecutor, or
b) Presenting incriminating
evidence against the testator, or
c) Even suppressing exculpatory
evidence
o The crime of which the testator is accused
must carry a penalty of at least 6 years
imprisonment.
- Prof. Balane says that the terminology
used should be “more than 6 years
imprisonment” because 6 years still falls
within prision correccional. 1 day beyond
that places it within the next higher
penalty of prision mayor.
- If the penalty prescribed is prision
correccional, does it fall under the
contemplation of this paragraph?
o The testator must be ACQUITTED.
o The accusation must be found to be
groundless, i.e. the judgment of acquittal
must state that either –
a) No crime was committed or
b) The accused did not commit the
crime
o An acquittal based on reasonable ground will
not be a ground for disinheritance.
3. Has been Convicted of Adultery or
Concubinage with the Spouse of the Testator
o Final Conviction is required
o Same question – must the disinheritance be
subsequent to the conviction?
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4. By Fraud, Violence, Intimidation or Undue
Influence causes the Testator to Make a Will or
Change one already made.
5. Refusal W/O justifiable cause to Support the
parent or ascendant who disinherits
o There must have been a need and a demand
for support [in relation to Art 203 of the Family
Code]
Art. 203. The obligation to give support
shall be demandable from the time the
person who has a right to receive the
same needs it for maintenance, but it
shall not be paid except from the date of
judicial or extra-judicial demand.
Support pendente lite may be claimed
in accordance with the Rules of Court.
Payment shall be made within the first
five days of each corresponding month
or when the recipient dies, his heirs
shall not be obliged to return what he
has received in advance.
o The demand must have been unjustifiably
refused. Refusal may be justified if the obligor
does not have enough resources for all whom
he is obliged to support. The ascendants are
only 3rd in the hierarchy of preference among
claimants of support [under Art200 par3 of the
Family Code].
Art. 200. When the obligation to give
support falls upon two or more persons,
the payment of the same shall be
divided between them in proportion to
the resources of each.
However, in case of urgent need and
by special circumstances, the judge may
order only one of them to furnish the
support provisionally, without prejudice
to his right to claim from the other
obligors the share due from them.
When two or more recipients at the
same time claim support from one and
the same person legally obliged to give
it, should the latter not have sufficient
means to satisfy all claims, the order
established in the preceding article shall
be followed, unless the concurrent
obligees should be the spouse and a
child subject to parental authority, in
which case the child shall be preferred.
6. Maltreatment of the testator by word or deed
o This will include a wide range of misdeeds,
but it is required that the act of verbal or
physical assault is of a serious nature.
o No conviction is required, in fact, it is not even
required that any criminal case be filed.
o Consequently, a physical assault that would
not fall under par1 as an attempt against the
life of the testator, the latter’s spouse,
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descendants or ascendants, can fall under
this paragraph.
7. Leads a dishonorable or disgraceful life
o The operative word here is “lead.” There must
be habituality to the conduct to make it fall
under this paragraph.
o The dishonorable or disgraceful conduct or
pattern of behavior need not be sexual in
nature, although it may often be that. Surely,
a child or descendant whose livelihood is
drug-pushing or smuggling is living a
dishonorable and disgraceful life.
8. Conviction of a crime carrying civil interdiction
o Final Conviction is required.
o The accessory penalty of civil interdiction is
imposed with the principal penalties of death,
reclusion perpetua and reclusion temporal
[under Articles 40-41 of the RPC].
o Same question – must the disinheritance be
subsequent to the conviction?
Art. 920. The following shall be sufficient causes
for the disinheritance of parents or
ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their
children or induced their daughters to live
a corrupt or immoral life, or attempted
against their virtue;
(2) When the parent or ascendant has been
convicted of an attempt against the life of
the testator, his or her spouse,
descendants, or ascendants;
(3) When the parent or ascendant has
accused the testator of a crime for which
the law prescribes imprisonment for six
years or more, if the accusation has been
found to be false;
(4) When the parent or ascendant has been
convicted 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) The loss of parental authority for causes
specified in this Code;
(7) The 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.
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• There are also 8 Causes for the Disinheritance of
Parents or Ascendants, whether Legitimate or
Illegitimate. [Exclusive enumeration]
1. When the parents have abandoned their
children or induced their daughters to live a
corrupt or immoral life or attempted against
their virtue
o This paragraph encompasses 3 grounds:
a) Abandonment – also includes
those penalized by law under articles
276-277 of the RPC, Article 59 of
PD603 and all conduct constituting
repeated or total refusal or failure to
care for the child. According to the
case of Chua v. Cabangbang, mere
acquiescence without more is not
sufficient to constitute abandonment.
However, when the mother completely
withheld her presence, her love, her
care and the opportunity to show
maternal affection; and totally denied
her support and maintenance, her
silence and inaction having been
prolonged for such a time, then it can
be legally inferred that there is
abandonment. Question – will consent
to adoption of a child constitute
abandonment?
b) Inducement to live a corrupt
and immoral life – under Art231[2] of
the Family Code as a ground for
suspension or deprivation of parental
authority.
c) Attempt against Virtue – no
conviction is required here.
2. Convicted of attempt against life of testator,
his or her spouse, descendant or ascendants.
3. Has Accused testator of a Crime punishable
by Imprisonment for 6 years or more, if the
accusation has been found to be False.
4. Has been Convicted of adultery or
concubinage with the spouse of the testator.
5. By Fraud, Violence, Intimidation or Undue
Influence causes testator to Make a Will or
Change one already made.
6. The Loss of Parental Authority for causes
specified in this Code
o Not all causes for loss of parental authority
are grounds for disinheritance. For instance,
attainment of the age of majority is not a
ground. Only those causes which involve
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culpability on the part of the parents will
provide grounds for disinheritance.
a) Judicial deprivation of parental
authority based on ground of sexual
abuse [Arts232 FC]
b) Loss of parental authority as a result of
Judicial declaration of abandonment of
a child [Art229(3) FC]
c) Judicial Deprivation of Parental
Authority on the grounds of:
i. Excessively harsh or
cruel treatment of the child
ii. Giving the child
corrupting orders, counsel or
example.
iii. Compelling the child
to beg, or
iv. Subjecting the child
or allowing him to be subjected to
acts of lasciviousness [Art231 FC]
7. Refusal to support the Children or
Descendants without justifiable cause
8. Attempt by one of the parents against the life
of the other, unless there has been a
reconciliation between them.
• Paragraphs 2, 3, 4, 5 and 7 are the same grounds for
disinheritance of a descendant or child.
Art. 921. The following shall be sufficient causes
for disinheriting a spouse:
(1) When the spouse has been convicted of
an attempt against the life of the testator,
his or her 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;
(5) When the spouse has given grounds for
the loss of parental authority;
(6) Unjustifiable refusal to support the
children or the other spouse.
• There are 6 causes for disinheriting a Spouse – these
grounds are exclusive.
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1. Spouse is convicted of an Attempt against the
life of the Testator, his or her descendants or
ascendants.
2. Spouse Accused Testator of a Crime for which
the law prescribes imprisonment for 6 years or
more, and the accusation is fond to be False.
3. The Spouse, by Fraud, Violence, Intimidation,
or Undue Influence causes the testator to
make a Will or change one already made.
4. Spouse has given cause for legal separation
o A decree of legal separation is not required.
o According to Art55 of the Family Code, there
are 10 grounds for legal separation:
a) Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child or a child of
the petitioner [natural or adopted].
b) Physical violence or moral pressure to
compel the petitioner to change religious
or political affiliation
c) Attempt of respondent to corrupt or
induce the petitioner, a common child, or
a child of petitioner [natural or adopted]
to engage in prostitution or connivance in
such corruption or inducement.
d) Final judgment sentencing the
respondent to imprisonment of more than
6 years, even if pardoned.
e) Drug addiction or habitual alcoholism of
the respondent
f) Lesbianism or homosexuality of the
respondent
g) Contracting by the respondent of a
subsequent bigamous marriage, whether
in the Philippines or abroad
h) Sexual infidelity or perversion
i) Attempt by the respondent against the
life of the petitioner
j) Abandonment of the petitioner by
respondent without justifiable cause for
more than 1 year.
5. Has given grounds for loss of parental
authority
6. Unjustifiable refusal to support the children or
the other spouse
• Paragraphs 1, 2, 3, 5 and 6 are also enumerated under
grounds for disinheritance of a descendant or child.
Art. 922. A subsequent reconciliation between the
offender and the offended person deprives
the latter of the right to disinherit, and
renders ineffectual any disinheritance that
may have been made.
• Meaning of Reconciliation – either an express pardon
extended by the testator to the offending heir or
unequivocal conduct of the testator towards the offending
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heir which reveals the testator’s intent to forgive the
offense.
a) If Express Pardon – a general pardon extended by
the testator on his deathbed to all who have
offended him will not suffice; it must be a pardon
expressly and concretely extended to the
offender, who accepts it.
b) If conduct – the intent to forgive must be clear.
This is ultimately a question of fact which will be
resolved, in case of controversy, by the courts.
• Effect of Reconciliation
a) If it occurs before disinheritance is made – right to
disinherit is extinguished
b) If it occurs after the disinheritance is made –
disinheritance is set aside. The effects of setting
aside the disinheritance are:
i. The disinherited heir is restored
to his legitime
ii. If the disinheriting will did not
dispose of the disposable portion, the
disinherited heir is entitled to his
proportionate share [in intestacy] if any, of the
disposable portion.
iii. If the disinheriting will disposed
of disposable portion [or any part thereof] in
favor of testamentary heirs, legatees or
devisees, such dispositions remain valid.
• Article 922 is in relation to Article 1033.
Art. 923. The children and descendants of the
person disinherited shall take his or her place
and shall preserve the rights of compulsory
heirs with respect to the legitime; but the
disinherited parent shall not have the
usufruct or administration of the property
which constitutes the legitime.
• Right of Representation in Disinheritance
 The right of representation is
granted only to descendants of disinherited
descendants.
 This rule is laid down in Art972
par1 which provides: “the right of representation
takes place in the direct descending line, but never
in the ascending.”
 Thus, a disinherited child will be
represented by his children or other descendants.
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 However, if the heir disinherited
is a parent/ascendant or spouse, the children or the
descendants of the disinherited heir do not have any
right of representation. Thus, this article is carelessly
worded.
• Extent of Representation
 The representative take the
place of the disinherited heir not only with respect to
the legitime, but also to any intestate portion that the
disinherited heir would have inherited.
 Representation therefore occurs
in compulsory and intestate succession, but not in
testamentary succession.
CASE
Francisco v. Alfonso
SECTION 7.
LEGACIES AND DEVISES
Art. 924. All things and rights which are within the
commerce of man be bequeathed or devised.
• Definition of Legacies and Devises – legacies and
devises are codally defined [by indirection] in Art782 par2
 A more accurate definition of
the terms can be found either in Art660 of the
Spanish Code or in Castan –
o Article 660 of the Spanish Code
- Legacy: testamentary disposition of
personal property by particular title
- Devise: testamentary disposition of real
property by particular title
o Castan
- Legacy: testamentary disposition of
specific or generic personal property
- Devise: testamentary disposition of
specific or generic real property.
• It is important, in defining a legacy or a devise, to
distinguish it from a testamentary disposition to an heir
because of the effects of preterition. Essentially, the
difference is that an heir receives an aliquot or fractional
part of the inheritance, whereas a legatee or devisee
receives specific or generic personalty or realty,
respectively.
• What can be devised or bequeathed - anything within the
commerce of man. It is not required that the thing
devised or bequeathed belong to the testator.
• Limitations on Legacy or Devise – it should not impair the
legitime.
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Art. 925. A testator may charge with legacies and
devises not only his compulsory heirs but
also the legatees and devisees.
The latter shall be liable for the charge
only to the extent of the value of the legacy or
the devise received by them. The compulsory
heirs shall not be liable for the charge beyond
the amount of the free portion given them.
Art. 926. When the testator charges one of the
heirs with a legacy or devise, he alone shall
be bound.
Should he not charge anyone in
particular, all shall be liable in the same
proportion in which they may inherit.
• WHO is charged with the Legacy
 General Rule – the Estate
Exception – however, the testator may impose the
burden on a testamentary heir or a legatee or
devisee. If he does so, then the heir, legatee or
devisee charged will, if he accepts the disposition
in his favor, be bound to deliver the legacy or
devise to the person specified. This will be in the
nature of a subsidiary legacy or devise. As far as
the heir, legatee or devisee charged is concerned,
it will be a MODE.
 The wording of Art925 is
erroneous because a compulsory heir, as such,
cannot be burdened with a legacy or devise because
that would impair his legitime. Only a testamentary
heir can be so burdened.
 Extent of liability of heir, devisee
or legatee in case of subsidiary legacies or devises
– the value of the benefit received from the testator.
Art. 927. If two or more heirs take possession of
the estate, they shall be solidarily liable for
the loss or destruction of a thing devised or
bequeathed, even though only one of them
should have been negligent.
• The liability imposed by this article is based on malice,
fault or negligence.
• This liability will also attach to the executor or
administrator in the proper cases.
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.
• WHO is Liable in case of EVICTION?
 General Rule – the Estate
 In case of a subsidiary legacy or
devise – the heir, legatee or devisee charged.
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Art. 929. If the testator, heir, or legatee owns only
a part of, or an interest in the thing
bequeathed, the legacy or devise shall be
understood limited to such part or interest,
unless the testator expressly declares that he
gives the thing in its entirety.
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.
Art. 931. If the testator orders that a thing
belonging to another be acquired in order that
it be given to a legatee or devisee, the heir
upon whom the obligation is imposed or the
estate must acquire it and give the same to
the legatee or devisee; but if the owner of the
thing refuses to alienate the same, or
demands an excessive price therefor, the heir
or the estate shall only be obliged to give the
just value of the thing.
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.
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.
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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. 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. 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.
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.
• Legacy / Devise of a thing owned in part by the testator
[Art929]
 General Rule – conveys only
the interest or part owned by the testator
 Exception – if the testator
provides otherwise, viz:
a) He may convey more than he owns – the
estate should try to acquire the part or
interest owned by other parties. If the other
parties are unwilling to alienate, the estate
should give the legatee/devisee the monetary
equivalent, by analogy with Art931.
b) He may convey less than he owns
[Art794]
• Legacy / Devise of a Thing Belonging to Another
[Arts930-931]
 If the testator ordered the
acquisition of the thing – the order should be
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complied with. If the owner is unwilling to part with
the thing, the legatee/devisee should be given the
monetary equivalent.
 If the testator erroneously
believed that the thing belonged to him – the legacy
or devise is VOID.
o EXCEPT if subsequent to the making of the
disposition, the thing is acquired by the testator
onerously or gratuitously, the disposition is
validated.
 If the testator knew that the
thing did not belong to him but did not order its
acquisition – the Code is SILENT on this. The most
rational solution seems to be that such a disposition
should be considered VALID, because:
a) The fact that the testator, with knowledge of
the other person’s ownership, bequeathed the
thing, implies an order to acquire
b) At worst, there is a doubt, and doubts
should be resolved in favor of testacy [Arts
788 and 791]
Art. 788. If a testamentary disposition
admits of different interpretations, in case of
doubt, that interpretation by which the
disposition is to be operative shall be preferred.
Art. 791. The words of a will are to receive
an interpretation which will give to every
expression some effect, rather than one which
will render any of the expressions inoperative;
and of two modes of interpreting a will, that is to
be preferred which will prevent intestacy.
• Legacy / Devise of a Thing Already Belonging to the
Legatee / Devisee or Subsequently Acquired by Him
[Articles 932 and 933]
 If the thing already belonged to
the legatee/devisee at the time of the execution of
the will – the legacy or devise is VOID. It is not
validated by an alienation by the legatee /devisee
subsequent to the making of the will.
 NOTE – articles 932 par 1 and
933 par 1 say essentially the same thing and should
be merged.
 If the thing was owned by
another person at the time of the making of the will
and acquired thereafter by the legatee/devisee:
a) If the testator erroneously believed that it
belonged to him – legacy or devise is VOID
b) If the testator was not in error –
- If the thing was acquired onerously by
legatee/devisee – the legatee or devisee
is entitled to reimbursement.
- If the thing was acquired gratuitously by
legatee/devisee – nothing more is due.
 If the thing was owned by the
testator at the time of the making of the will and
acquired thereafter from him by the legatee/devisee
– Articles 932 and 933 are SILENT on this, but
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Article 957 par 2 can be applied and the
legacy/devise should be deemed revoked.
• Legacy / Devise to remove an encumbrance over a thing
belonging to the legatee / devisee under Art932 par2 –
VALID, if the encumbrance can be removed for a
consideration.
• Legacy / Devise of a thing pledged or mortgaged under
Article 934 – the encumbrance must be removed by
paying the debt, UNLESS the testator intended
otherwise.
• Legacy of Credit or Remission [Articles 935-937]
 Applies only to amount still
unpaid at the time of the testator’s death [under
Art935]
 Revoked if testator
subsequently sues the debtor for collection [[Article
936]
 If Generic, applies only to those
existing at the time of execution of the will [under
Articles 937 and 793], unless otherwise provided.
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.
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.
• Legacy / Devise to a Creditor [Art938]
 General Rule – will be treated
like any other legacy / devise and therefore will not
be imputed to the debt.
 Exception – will be imputed to
the debt if the testator so provides, and if the debt
exceeds the legacy / devise, the excess may be
demanded as an obligation of the estate.
 NOTE – if the testator does
provide that the legacy / devise should be imputed to
the debt and the amount of the debt is equal to or
more than the value of the legacy/devise it would be
folly for the creditor to accept the “benefit.” He will be
much better off renouncing the legacy/devise and
filing a claim for the credit.
• Testamentary Instruction to Pay a Debt [Art939]
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a) This is not a testamentary disposition, but merely
a direction to discharge a civil obligation.
b) Instruction to pay non-existing debt – should be
DISREGARDED, because this would solution
indebiti.
c) Instruction to pay more than what is due –
effective only as to what is due, unless the bigger
amount specified constitutes a natural obligation
under Articles 1423 – 1430.
Art. 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.
• Alternative legacies / devises
 Definition – One which provides
that, among several things mentioned, only one is to
be given.
• Right of Choice
 General Rule
1) The estate, through the executor or
administrator – in a direct legacy or devise
2) The heir, legatee, or devisee charged –
in a subsidiary legacy or devise
 These parties are, analogously,
in the position of the debtor.
 Exception – the
legatee/devisee, if the testator so provides.
• If the person who is to choose dies before choice is
made:
a) If the choice belonged to executor or administrator
– the right is transmitted to his successor in office.
b) If the choice belongs to an heir, legatee or devisee
– the right is transmitted to his own heirs.
• The choice is irrevocable.
• Provisions suppletorily governing – Articles 1199-1205,
on alternative obligations.
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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.
• Generic legacies / devises
• Rules on Validity [Article 941]
A. Generic Legacy – valid even if no such movables
exist in the testator’s estate upon his death. The
estate will simply have to acquire what is given by
legacy.
B. Generic Devise – valid only if there exists such an
immovable in the testator’s estate at the time of
his death.
 Note – this distinction as found
in the Spanish Code perpetuates the rule in the
Partidas even if it has become artificial and arbitrary
in modern times.
• Right of Choice [Article 942-943]
 General Rule – the executor or
administrator, acting for the estate.
o Exception – if the testator gives the right of
choice to the legatee / devisee, or to the heirs
on whom the obligation to give the benefit is
imposed [in a subsidiary legacy or devise]
 Limitation on Choice – the
choice must be limited to something which is neither
superior nor inferior in quality. This rule applies
whether the choice belongs to the
executor/administrator or the legatee/devisee.
o In relation to Art1246 of the CC – “When the
obligation consists in the delivery of an
indeterminate or generic thing, whose quality
and circumstances have not been stated, the
creditor cannot demand a thing of superior
quality. Neither can the debtor deliver a thing of
inferior quality. The purpose of the obligation
and other circumstances shall be taken into
consideration.”
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 Finality of Choice – irrevocable,
once made.
 Transmissibility of Right to
Choose
1. If the choice belongs to the
executor / administrator and he dies before
making the choice – the right is transmitted to
his successor in the position.
2. If the choice belongs to the
legatee/devisee and he dies before making
the choice – the right passes to his heirs.
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. 945. If a periodical pension, or a certain
annual, monthly, or weekly amount is
bequeathed, the legatee may petition the
court for the first installment upon the death
of the testator, and for the following ones
which shall be due at the beginning of each
period; such payment shall not be returned,
even though the legatee should die before the
expiration of the period which has
commenced.
• Legacy for Education
 Duration – age of majority or the
completion of a professional, vocational or general
course, whichever comes later. In the latter instance,
only if the legatee pursues his studies diligently.
 Amount
o Primarily – that fixed by the testator
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o Secondarily – that which is proper, as
determined by 2 variables: [1] the social
standing and circumstances of the legatee,
and [2] the value of the disposable portion of
the estate.
• Legacy for Support
 Duration – the legatee’s lifetime,
unless the testator has provided otherwise
 Amount
o Primarily – that fixed by the testator
o Secondarily – that which the testator during
his lifetime used to give the legatee by way of
support, unless markedly disproportionate to
the value of the disposable portion
o Tertiarily – that which is reasonable, on the
basis of 2 variables: [1] the social standing
and the circumstances of the legatee, and [2]
the value of the disposable portion.
• Legacy of a Periodical Pension
 Demandability – upon the
testator’s death and the succeeding ones at the
beginning of the period without duty to reimburse
should the legatee due before the lapse of the
period.
 NOTE – this should be
harmonized with the rules on settlement of estates,
i.e. the debts should first be paid before any
testamentary grants can be complied with [unless
the legatee files a BOND under Rule 90 sec1 of
ROC]. However, should the legacy prove to be
inofficious, the date of effectivity shall retroact to the
decedent’s death.
Art. 946. If the thing bequeathed should be
subject to a usufruct, the legatee or devisee
shall respect such right until it is legally
extinguished.
• This article lays down the same rule as Art934 par3.
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.
• Demandability, Ownership and Fruits of Legacies/
Devises
Demand- When Fruits
ability Ownership
Vests
Pure and Upon Upon Upon the
Determi Testator’s Testator’s testator’s
nate death death death
[under
Art948]
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Pure and Upon a. if from Upon the legatee or devisee, who shall, therefore,
Generic Testator’s testator’s determi- bear its loss or deterioration, and shall be
death estate – nation, benefited by its increase or improvement,
upon unless
testator’s testator without prejudice to the responsibility of the
death provides executor or administrator.
b. if otherwise
acquired [Art949] Art. 949. If the bequest should not be of a specific
from a 3rd and determinate thing, but is generic or of
person – quantity, its fruits and interests from the time
upon
acquisition
of the death of the testator shall pertain to the
With a Upon the Upon arrival Upon the legatee or devisee if the testator has
Suspensi arrival of of the term, arrival of expressly so ordered.
ve Term the term but the the term
right to it [implied Art. 950. If the estate should not be sufficient to
vests upon from cover all the legacies or devises, their
the Art885]
payment shall be made in the following order:
testator’s
death (1) Remuneratory legacies or devises;
[under (2) Legacies or devises declared by the
Art878] testator to be preferential;
With a Upon the Upon the Upon the (3) Legacies for support;
Suspensi happenin testator’s happening (4) Legacies for education;
ve g of the death, if the of the (5) Legacies or devises of a specific,
Conditio condition condition is condition,
n fulfilled unless
determinate thing which forms a part of
[under testator the estate;
Art1187] provides (6) All others pro rata.
otherwise
[Art884 in • Order of Preference among Legacies and Devises in
rel. to case the Estate is Not Sufficient for All of them
Art1187] 1. Remuneratory legacies or devises
2. Legacies or devises declared by the testator to be
Art. 1187. The effects of a conditional obligation to preferential
give, once the condition has been fulfilled, shall 3. Legacies for support
retroact to the day of the constitution of the 4. Legacies for education
obligation. Nevertheless, when the obligation 5. Legacies or devises of a specific, determinate
imposes reciprocal prestations upon the parties, the thing which forms a part of the estate
fruits and interests during the pendency of the 6. All others, pro rata
condition shall be deemed to have been mutually
compensated. If the obligation is unilateral, the • Article 950 and Article 911
debtor shall appropriate the fruits and interests
received, unless from the nature and circumstances  Article 911 also contains a rule
of the obligation it should be inferred that the for reduction of legacies and devises and the order
intention of the person constituting the same was of preference there is different: it simply provides
different. that all the non-preferred legacies/devises will be
In obligations to do and not to do, the courts shall
reduced pro rata, and the preferred legacies/devises
determine, in each case, the retroactive effect of the are reduced last. It is a rule different from that set
condition that has been complied with. forth in Art950.

 Possible reconciliation between

the 2 articles – each article can be given its own
Art. 948. If the legacy or device is of a specific
area of applicability.
and determinate thing pertaining to the o Article 911 will apply if reductions have to be
testator, the legatee or devisee acquires the made because the LEGITIMES have been
ownership thereof upon the death of the impaired, i.e. if the legacies/devises have
testator, as well as any growing fruits, or exceeded the disposable portion
unborn offspring of animals, or uncollected o Article 950 will apply if the reason for the
income; but not the income which was due reduction is not the impairment of legitimes,
and unpaid before the latter's death. i.e. there are no legitimes because there are
From the moment of the testator's death, no compulsory heirs or the legitimes have
the thing bequeathed shall be at the risk of

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SUCCESSION REVIEWER
already been satisfied through donations inter
vivos.
Art. 951. The thing bequeathed shall be delivered
with all its accessories and accessories and
in the condition in which it may be upon the
death of the testator.
• The obligation to deliver the accessions and accessories
exists even if the testator does not explicitly provide for it.
This is the same rule laid down in Art1166, which
provides:
Art. 1166. The obligation to give a determinate
thing includes that of delivering all its accessions
and accessories, even though they may not have
been mentioned
• The crucial time is the testator’s death, because that is
when successional rights vest [under Art777]. That is
why the thing must be delivered in the condition in which
it is at that time.
Art. 952. The heir, charged with a legacy or
devise, or the executor or administrator of the
estate, must deliver the very thing
bequeathed if he is able to do so and cannot
discharge this obligation by paying its value.
Legacies of money must be paid in cash,
even though the heir or the estate may not
have any.
The expenses necessary for the delivery
of the thing bequeathed shall be for the
account of the heir or the estate, but without
prejudice to the legitime.
• This article conforms to the rule of identity in the
performance of obligations [under Art1244]:
Art. 1244. The debtor of a thing cannot compel the
creditor to receive a different one, although the
latter may be of the same value as, or more
valuable than that which is due.
In obligations to do or not to do, an act or
forbearance cannot be substituted by another
act or forbearance against the obligee's will.
Art. 953. The legatee or devisee cannot take
possession of the thing bequeathed upon his
own authority, but shall request its delivery
and possession of the heir charged with the
legacy or devise, or of the executor or
administrator of the estate should he be
authorized by the court to deliver it.
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Ryan Quan 
1ST SEM 2006- 2007
• Although the efficacy of a legacy or devise vests upon
the testator’s death, actual delivery does not take place
at that time. Debts first have to be paid, then legitimes
have to be determined, and the testamentary
dispositions (including legacies and devises) computed
lest they impair the legitimes. It is only after these steps
have been taken that the beneficiaries of the will can
take possession.
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.
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.
• Rules on Acceptance and Repudiation of Legacies /
Devises
 Legacies ma be total or partial,
as implied under Art954 par1.
o Exception – If the legacy/devise is partly
onerous and partly gratuitous, the recipient
cannot accept the gratuitous part and
renounce the onerous part. Any other
combination however is permitted.
 Acceptance or Repudiation by
Heirs of Legatee/ Devisee – if the legatee or devisee
dies before accepting or renouncing, his heirs shall
exercise such right as to their pro-indiviso share,
and in the same manner as the legatee or devisee.
 2 Legacies/Devises to the Same
Recipient
o If both gratuitous – the recipient may accept
or renounce either or both
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SUCCESSION REVIEWER
o If both onerous – same rule, may accept or
renounce either or both
o If one gratuitous and the other onerous – the
recipient cannot accept the gratuitous and
renounce the onerous. Any other combination
is permitted.
 Legacy/Devise to One who is
Also a Compulsory Heir – the recipient may accept
either or both, the legacy/devise and the legitime. [in
relation to Art1055]
 Effect if the Will Provides
Otherwise – all of the above rules apply in the
absence of a stipulation in the will providing
otherwise. If there is a stipulation, the testator’s
wishes shall govern.
Art. 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.
• Rules in Case of Repudiation by or Incapacity of
Legatee/Devisee
1. Primarily – SUBSTITUTION
2. Secondarily – ACCRETION
3. Tertiarily – INTESTACY
Art. 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
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kind, in accordance with the provisions
of Article 928.
• This article enumerates the instances when the
legacy/devise is REVOKED BY OPERATION OF LAW
1. TRANSFORMATION
o If for example the testator converts a
plantation to a fishpond.
2. ALIENATION
o The alienation by the testator may be
gratuitous or onerous.
o The alienation revokes the legacy/devise
even if for any reason the thing reverts to
the testator.
o Exceptions
a) If the reversion is caused by the
annulment of the alienation and the
cause for annulment was vitiation of
consent on the grantor’s part, either
by reason or incapacity or duress.
b) If the reversion is by virtue of
redemption in a sale with pacto de
retro.
3. TOTAL LOSS
o This will be a cause for revocation only if
it takes place before the testator’s death.
o Fortuitous loss after the testator’s death
will not constitute revocation because
legally, the disposition takes effect upon
death.
o Therefore, fortuitous loss after the
testator’s death will simply be an instance
of “res perit domino” and will be borne by
the legatee/devisee.
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.
• This principle is already set forth in Art789
Art. 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.
• This article is misplaced because it applies not just to
legatee/devisees but to all testamentary heirs as well. It
should be placed under the chapter on “Institution of
Heir.”
CASES Articles 924-959
Belen v. BPI
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CHAPTER 3
LEGAL OR INTESTATE SUCCESSION
SECTION 1.
GENERAL PROVISIONS
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.
• Legal or Intestate Succession Defined
 Not defined by the Code, unlike
testamentary and mixed succession.
 But the draft Code, as well as
the Spanish Code defines intestate succession as
taking place “by operation of law in the absence of a
valid will.”
 And the Spanish Code provides
that “succession results from a person’s will as
manifested in a testament, or in default thereof, by
operation of law.”
• INSTANCES WHEN LEGAL OR INTESTATE
SUCCESSION OPERATED
1. If a person dies without a will, or with a void
will, or one which has subsequently lost its
validity.
o 3 instances with the same legal result –
there is no will.
o A will that has subsequently lost its
validity is one that has been REVOKED
under Articles 830-837 without a later one
taking its place. Validity should read
“efficacy.”
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1ST SEM 2006- 2007
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.
o In these instances, intestacy may be total
or partial.
3. If the suspensive condition attached to the
institution of an 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
o Intestacy here may also be total or
partial, depending on the extent of the
disposition that turns out to be inoperative.
4. When the heir instituted is incapable of
succeeding, except in cases provided in this
Code.
o Incapacity to succeed under Articles
1027, 1028 and 1032. Intestacy here may
be total or partial.
Other Causes of Intestacy
5. Happening of a Resolutory Condition
6. Expiration of a Resolutory Term
7. Preterition
Art. 961. In default of testamentary heirs, the law
vests the inheritance, in accordance with the
rules hereinafter set forth, in the legitimate
and illegitimate relatives of the deceased, in
the surviving spouse, and in the State.
Art. 962. In every inheritance, the relative nearest
in degree excludes the more distant ones,
saving the right of representation when it
properly takes place.
Relatives in the same degree shall inherit
in equal shares, subject to the provisions of
article 1006 with respect to relatives of the full
and half blood, and of Article 987, paragraph
2, concerning division between the paternal
and maternal lines.
• Exclusion and Concurrence in Intestacy
 Intestacy operates on the same
principles as succession to the legitime. There are 2
principles operating sometimes simultaneously,
sometimes singly – EXCLUSION and
CONCURRENCE.
• Groups of intestate heirs and the different combinations
in intestacy are outlined under Arts. 978-1010.
• Basis of Intestate Succession
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SUCCESSION REVIEWER
 The presumed will of the
decedent, which would distribute the estate in
accordance with the love and affection he has for his
family and close relatives, and in default of these
persons, the presumed desire of the decedent to
promote charitable and humanitarian activities.
 Manresa says that the law of
intestacy is founded on the presumed will of the
deceased. Love, it is said first descends, then
ascends, and finally spreads sideways. Thus, the
law first calls the descendants, then the ascendants
and finally the collaterals, always preferring those
closer in degree than those of remoter degrees.
• BASIC RULES OF INTESTACY
1. The Rule of Preference of Lines
 The 3 lines of relationship are:
a) The descending
b) The ascending, and
c) The collateral
 The law lays down an order of
preference among these lines, such that
the descending excludes the ascending
and the collateral, and the ascending
excludes the collateral.
2. The Rule of Proximity of Degree
 The nearer exclude the more
remote [Art962 par1] without prejudice to
representation.
3. The Rule of Equality Among Relatives of the
Same Degree
 This rule is corollary of the
previous one: If the nearer exclude the
more remote, logically those of equal
degree should inherit in equal shares
[Art962 par2]
 5 EXCEPTIONS
a) The rule of preference of lines
b) The distinction between
legitimate and illegitimate filiation
[the ratio under present law is 2:1]
under Article 983 in relation to Article
895 as amended by Art176 of the
Family Code.
c) The Rule of Division by line in
the Ascending Line under Art987
par2
d) The Distinction between Full-
Blood and Half-Blood relationship
among Brothers and Sisters, as well
as nephews and nieces under
Articles 1006 and 1008.
e) Representation
SUBSECTION 1. - Relationship
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Art. 963. Proximity of relationship is determined
by the number of generations. Each
generation forms a degree.
Art. 964. A series of degrees forms a line, which
may be either direct or collateral.
A direct line is that constituted by the
series of degrees among ascendants and
descendants.
A collateral line is that constituted by the
series of degrees among persons who are not
ascendants and descendants, but who come
from a common ancestor.
Art. 965. The direct line is either descending or
ascending.
The former unites the head of the family
with those who descend from him.
The latter binds a person with those from
whom he descends.
Art. 966. In the line, as many degrees are counted
as there are generations or persons,
excluding the progenitor.
In the direct line, ascent is made to the
common ancestor. Thus, the child is one
degree removed from the parent, two from the
grandfather, and three from the great-
grandparent.
In the collateral line, ascent is made to the
common ancestor and then descent is made
to the person with whom the computation is
to be made. Thus, a person is two degrees
removed from his brother, three from his
uncle, who is the brother of his father, four
from his first cousin, and so forth.
DESCENDING
DIRECT
ASCENDING
LINE
DIRECT &
COLLATERAL
COLLATERAL
DESCENDING
DIRECT &
ASCENDING
DIRECT
• LINE – a series of degrees forms a line [Article 964 par1]
a) Direct - degrees among ascendants and
descendants [Art964 par2]
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i. Descending – Unites the head - Fourth degree

of the family with those who descend from i. First Cousins
him [Article 965 par2] ii. Brothers/Sisters of a grand-parent [grand-uncles / grand-
ii. Ascending – binds a person aunts]
with those from whom he descends [Article iii. Grandchildren of a brother/sister [grand-nephews/grand-
965 par3] nieces]
- Fifth degree
b) Collateral – Degrees among persons who are not Children of a first cousin
ascendants or descendants but come from a First cousins of a parent
common ancestor [Article 964 par3] iii. Brothers/sisters of a great-
i. Direct and Collateral – grandparent
importance of distinction: the direct is iv. Great grandchildren of a
preferred over the collateral. brother/sister
ii. Descending direct and
Ascending direct – importance of distinction
– the descending is preferred over the
ascending.

DIRECT LINE
Art. 967. Full blood relationship is that existing
DEGREE between persons who have the same father
and the same mother.
COLLATERAL Half blood relationship is that existing
LINE between persons who have the same father,
but not the same mother, or the same mother,
but not the same father.
• COMPUTATION OF DEGREES
A. Direct Line – there is no legal limit to the number • Importance of distinction between full-blood and half-
of degrees for entitlement to intestate succession. blood relationship – with reference to brothers and
The practical limit is of course, human mortality. sisters and nephews and nieces, there is a ratio of 2:1 for
o Mode of Counting Degrees in Direct Line full-blood and half-blood relationship, respectively.
- One generation = one degree [Arts1006 and 1008]
- Parent to child = 1 degree • With respect to collateral relatives, the full-blood and
- Grandparent to Grandchild = 2 degrees half-blood relationship is NOT MATERIAL.
- Great-Grandparent to Great-Grandchild
= 3 degrees
Art. 968. If there are several relatives of the same
B. Collateral Line – computation of degree is degree, and one or some of them are
important in the collateral line because intestate unwilling or incapacitated to succeed, his
succession extends only to the FIFTH [5th] portion shall accrue to the others of the same
DEGREE of Collateral relationship (Art1010) degree, save the right of representation when
o Mode of Counting Degrees in the Collateral it should take place.
Line [Art966 par3]
• ACCRETION IN INTESTACY
i. From the reference point, ascend to
nearest common ancestor [if there  There is accretion in intestacy
are more than 1 nearest common among heirs of the same degree, in case of
ancestor, choose any one.] PREDECEASE, INCAPACITY or RENUNCIATION
ii. Then descend to the other reference of any one of them. [Art1015]
point 1) In case of predecease or incapacity,
iii. Number of generations constituting representation, if proper, will PREVENT
the ascent and the descent is the accretion from occurring.
degree of the collateral relationship.
2) Relatives must be in the same kind of
o Collaterals by Degrees relationship – for accretion to take place the
- First degree – none heirs involved must be in the same kind of
- Second degree – brothers / sisters relationship to the decedent. This is because
- Third degree of the principle of the preference of lines in
i. Uncles / Aunts intestate succession. Thus, there can be no
ii. Nephews / Nieces accretion among a grandchild, a grandparent

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and a brother of the decedent [even if they
are all related to him in the 2nd degree]
because they are not inheriting together in the
first place.
Art. 969. If the inheritance should be repudiated
by the nearest relative, should there be one
only, or by all the nearest relatives called by
law to succeed, should there be several,
those of the following degree shall inherit in
their own right and cannot represent the
person or persons repudiating the
inheritance.
• EFFECT OF RENUNCIATION BY ALL IN THE SAME
DEGREE
 The right of succession should
first be passed on the heirs in succeeding degrees
[in successive order] before the next line can
succeed, because of the rule of preference of lines.
Thus:
1) The descending line first – if all the
descendants of a certain degree renounce,
succession passes to the descendants of the
next degree [i.e. grandchildren], and so on,
ad indefinitum.
2) The ascending line next – should no
one be left in the descending line, the heirs in
the ascending line acquire the right of
succession, again in order of degrees of
proximity.
3) The collateral line last – only if ALL the
descendants and ascendants renounce will
the collateral relatives acquire the right to
succeed.
• Predecease or Incapacity by All in the Same Degree
 This eventuality is not provided
for by the article. The rules outlined, however, are
equally applicable to such situation, except in cases
where REPRESENTATION is proper [in descending
line]
 Representation does not apply
in cases of universal renunciation outlined above,
because there is no representation in renunciation.
[Art977]
SUBSECTION 2. - Right of Representation
Art. 970. Representation is a right created by
fiction of law, by virtue of which the
representative is raised to the place and the
degree of the person represented, and
acquires the rights which the latter would
have if he were living or if he could have
inherited.
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Art. 971. The representative is called to the
succession by the law and not by the person
represented. The representative does not
succeed the person represented but the one
whom the person represented would have
succeeded.
Art. 972. The right of representation takes place
in the direct descending line, but never in the
ascending.
In the collateral line, it takes place only in
favor of the children of brothers or sisters,
whether they be of the full or half blood.
Art. 973. In order that representation may take
place, it is necessary that the representative
himself be capable of succeeding the
decedent.
Art. 974. 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. 975. When children of one or more brothers
or sisters of the deceased survive, they shall
inherit from the latter by representation, if
they survive with their uncles or aunts. But if
they alone survive, they shall inherit in equal
portions.
Art. 976. A person may represent him whose
inheritance he has renounced.
Art. 977. Heirs who repudiate their share may not
be represented.
• REPRESENTATION
 Definition – a right created by
fiction of law, by virtue of which the representative is
raised to the place and the degree of the person
represented, and acquires the rights which the latter
would have if he were living or if he could have
inherited. [Art970]
o Criticisms – the term “representation”, it has
been suggested that a better term to call this
legal process is either hereditary subrogation
or successional subrogation because the
person inheriting in another’s stead actually
represents no one and truly succeeds in his
own right. The term “fiction of law” is criticized
as inaccurate, as well, because the law has
ample authority to predetermine who are to
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SUCCESSION REVIEWER
be called to inherit, and the law needs no
resort to fictions but merely to make use of its
power to designate those who are to take the
inheritance.
• INSTANCES WHEN REPRESENTATION OPERATES
A. Predecease
B. Incapacity or Unworthiness, and
C. Disinheritance
 Instance when Representation
NEVER operates – RENUNCIATION
• IN WHAT KINDS OF SUCCESSION
REPRESENTATION OPERATES
A. LEGITIME or compulsory succession
o There is no express provision on
representation in the legitime, except
Art923 in case of disinheritance.
B. INTESTACY or legal succession
 There is no representation in
testamentary succession
• IN WHAT LINE DOES REPRESENTATION OBTAIN
A. With respect to the LEGITIME – in the direct
descending line only [Art972]
B. With respect to INTESTACY – the general rule is
in the direct descending line as well, EXCEPT in
one instance, in the collateral line – in case of
nephews and nieces representing brothers and
sisters of the deceased [Art975]
• REPRESENTATION BY ILLEGITIMATE CHILDREN
 If the child to be represented is
legitimate – only legitimate children/descendants
can represent him [Art992]
 If the child to be represented is
illegitimate – BOTH legitimate and illegitimate
children/descendants can represent him [Arts902,
989 and 990]
 Thus
X representative does not succeed the person
Legitimate Illegitimate
A B
Legit. Illegit. Legit.
A1 A2 B1
Should A and B both predecease X, only A1 can
represent A but both B1 and B2 can represent B
 Representation OF and BY and
adopted child – an adopted child can NEITHER
represent nor be represented.
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o The rationale for the rule barring an adopted
from representing and being represented is
that the legal relationship created by adoption
is strictly between the adopted and the
adopted. It does not extend to the relatives of
either party. [Teotico v. Del Val]
• REPRESENTATION BY RENOUNCER
 Although a renounce cannot be
represented, he can represent the person whose
inheritance he has renounced [Art976]. This is
because in the 2nd sentence of Art971, the
representative does not succeed the person
represented but the one whom the person
represented would have succeeded.
 Example – A is the father of B
and C is the son of B, and therefore the grandchild
of A. B dies and C renounces his inheritance. But if
A dies and there is a right of representation, C can
still inherit from A in representation of B, even if C
previously renounced his inheritance from B. This is
because in the latter case, C is inheriting from A and
not from B.
• HOW REPRESENTATION OPERATES
 PER STIRPES – the
representative or representatives receive only what
the person represented would have received. If
there is more than 1 representative in the same
degree, then divide the portion EQUALLY, without
prejudice to the distinction between legitimate and
illegitimate children when applicable.
• RULES ON QUALIFICATION
A. The representative must be qualified to
succeed the decedent. [Art973]
o Again, the rationale is found in the 2nd
sentence of Art971, stating that the
represented but the one whom the person
represented would have succeeded.
B. The representative need not be qualified to
succeed the person represented [Art971]
Illegit.
C. The person represented need not be qualified
B2 to succeed the decedent.
o In fact, the reason why representation is
taking place is that the person represented is
not qualified, because of predecease,
incapacity or disinheritance.
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• REPRESENTATION BY GRANDCHILDREN AND o However, since E renounced his share, his

REPRESENTATION BY NEPHEWS/NIECES:
Difference in Rule
A. If ALL the children are disqualified – the
grandchildren still inherit by representation [what
the parents should have gotten] under Art982.
B. If ALL the brothers/sisters are disqualified –
the nephews and nieces inherit PER CAPITA
under Art975.
• Some Suggestions – more explicit provisions on:
o What are the occasions or causes for the
operation of representation?
o In what kinds of succession does representation
operate?
P60k portion will, by ACCRETION, be divided equally
among the rest of the kids of X.
o Therefore, A, B, C and D will get an additional
P15,000 each plus their own P60k portion, they will get 75k
each.
o However, since C predeceased the testator, he
may be represented by C1 and C2, who will each get
P37,500 [the P75k share of C to be divided by 2, assuming
both C1 and C2 are legitimate children of C].
o Also, since D is unworthy to succeed, he may
be represented by D1 and D2, who will get P37,500 each
[P75k share divided by 2]
CASES FOR ARTS. 960-977

• PROBLEM ON REPRESENTATION Bagamon v Piedad

Note, I’m not sure about the answers, please re-check
Teotico v. Del Val
 X has 5 legit kids, 3 of whom
have their own kids.
X

A B C D E

C1 C2 D1 D2 E1 E2

 Supposing X makes a WILL

[TESTAMENTARY] instituting all his 5 kids to the
free portion; then C predeceases him, D is unworthy
to succeed and upon his death, E renounces. How is
X’s estate, worth P600,000 to be apportioned?
o A, B, C, D and E are supposed to get 60,000
each [the free portion is ½ of the whole estate so the free
portion is P300,000 divided by 5 kids = 60,000 each].
o However, there is NO REPRESENTATION in
Testamentary Disposition.
o Therefore, the share of C who predeceased X,
the share of D who is unworthy, and the share of E who
renounced, will all accrue to A and B as co-heirs.
o So, A and B will each get ½ of the P300,000, or
P150,000 each.

 Supposing X dies INTESTATE,

all the other facts being the same, how is X’s estate
to be apportioned?
o A, B, C, D and E are supposed to get 60,000
each [the free portion is ½ of the whole estate so the free
portion is P300,000 divided by 5 kids = 60,000 each].

SECTION 2. – ORDER OF INTESTATE SUCCESSION

INTESTACY – RULES OF EXCLUSION AND CONCURRENCE

HEIRS EXCLUDE CONCUR ARE EXCLUDED BY

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1. Legitimat Parents, Collaterals and The surviving spouse and No one

e Children the State illegitimate children

2. Illegitimat Illegitimate parents, Surviving spouse, legitimate No one

e Children collaterals and the state children and the legitimate parents
3. Legitimat Collaterals and the state Illegitimate children and the Legitimate children
e Parents surviving spouse
4. Illegitimat Collaterals and the state Surviving spouse Legitimate and
e Parents illegitimate children
5. Surviving Collaterals, EXCEPT Legitimate children, illegitimate No one
Spouse brothers, sisters, children, legitimate parents,
nephews and nieces, illegitimate parents and brothers,
and the State sisters, nephews and nieces.
6. Brothers, All other collateral Surviving spouse Legitimate & illegitimate
sisters, relatives up to 5th degree children, and legitimate
nephews and and the state & illegitimate parents
nieces
7. Other Collaterals remoter in Collaterals in the same degree All others
Collaterals degree, and the state
8. The State No one No one Everyone

COMBINATIONS IN INTESTATE SUCCESSION

HEIR SHARE PROVISION

1. Legitimate Whole estate, equally divided Art. 979. Legitimate children and their descendants
children succeed the parents and other ascendants,
without distinction as to sex or age, and even if
they should come from different marriages.
An adopted child succeeds to the property of
the adopting parents in the same manner as a
legitimate child.

2. Legitimate Whole estate with ½ share of 1 Art. 983. If illegitimate children survive with
children and legit child for EACH illegitimate legitimate children, the shares of the former shall
Illegitimate child be in the proportions prescribed by Article 895.
children Art. 176 FAMILY CODE. Illegitimate children shall use
the surname and shall be under the parental
authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime
of each illegitimate child shall consist of one-half
of the legitime of a legitimate child. Except for
this modification, all other provisions in the Civil
Code governing successional rights shall remain
in force.

3. Legitimate Whole estate, divided equally, Art. 996. If a widow or widower and legitimate
children and including the surviving spouse children or descendants are left, the surviving
surviving spouse spouse has in the succession the same share as
that of each of the children.

4. Legitimate Whole estate, the spouse getting Art. 999. When the widow or widower survives with
children, the share of 1 legitimate child legitimate children or their descendants and
surviving spouse and the illegitimate child getting illegitimate children or their descendants,
and illegitimate ½ the share of 1 legitimate child. whether legitimate or illegitimate, such widow or
children widower shall be entitled to the same share as
that of a legitimate child.
Art. 176 FAMILY CODE. Illegitimate children shall use
the surname and shall be under the parental
authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime

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of each illegitimate child shall consist of one-half

of the legitime of a legitimate child. Except for
this modification, all other provisions in the Civil
Code governing successional rights shall remain
in force.

5. Legitimate Whole estate, equally Art. 985. In default of legitimate children and
descendants of the deceased, his parents and
parents alone
ascendants shall inherit from him, to the
exclusion of collateral relatives.

6. Legitimate Whole estate, division equally by Art. 987. In default of the father and mother, the
ascendants line ascendants nearest in degree shall inherit.
Should there be more than one of equal degree
belonging to the same line they shall divide the
inheritance per capita; should they be of different
lines but of equal degree, one-half shall go to the
paternal and the other half to the maternal
ascendants. In each line the division shall be
made per capita.

7. Legitimate Legitimate parents get ½ of the Art. 991. If legitimate ascendants are left, the
parents and estate divided equally between illegitimate children shall divide the inheritance
illegitimate them and the illegitimate children with them, taking one-half of the estate, whatever
children get ½ of the estate divided also be the number of the ascendants or of the
equally illegitimate children.
8. Legitimate Legit parents get ½ of the estate Art. 997. When the widow or widower survives with
parents and and the surviving spouse gets legitimate parents or ascendants, the surviving
surviving spouse the other half spouse shall be entitled to one-half of the estate,
and the legitimate parents or ascendants to the
other half.

9. Legitimate Legit parents get ½, the surviving Art. 1000. If legitimate ascendants, the surviving
parents, spouse gets ¼ and the spouse, and illegitimate children are left, the
surviving spouse illegitimate children get ¼. ascendants shall be entitled to one-half of the
and illegitimate inheritance, and the other half shall be divided
children between the surviving spouse and the illegitimate
children so that such widow or widower shall have
one-fourth of the estate, and the illegitimate
children the other fourth.

10. Illegitimate The whole estate, divided equally Art. 988. In the absence of legitimate descendants
children or ascendants, the illegitimate children shall
succeed to the entire estate of the deceased.

11. Illegitimate The illegitimate children get ½ Art. 998. If a widow or widower survives with
children and and the surviving spouse gets illegitimate children, such widow or widower shall
surviving spouse the other ½ be entitled to one-half of the inheritance, and the
illegitimate children or their descendants,
whether legitimate or illegitimate, to the other
half.

12. Surviving The whole estate Art. 994. In default of the father or mother, an
spouse illegitimate child shall be succeeded by his or her
surviving spouse who shall be entitled to the
entire estate.
If the widow or widower should survive with
brothers and sisters, nephews and nieces, she or
he shall inherit one-half of the estate, and the
latter the other half.

Art. 995. In the absence of legitimate descendants

and ascendants, and illegitimate children and
their descendants, whether legitimate or
illegitimate, the surviving spouse shall inherit the
entire estate, without prejudice to the rights of

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brothers and sisters, nephews and nieces, should

there be any, under article 1001.

13. Surviving Spouse gets ½ of estate, No provision, but by analogy to Art997.

spouse and illegitimate parents get the other Art. 997. When the widow or widower survives with
illegitimate ½ legitimate parents or ascendants, the surviving
parents spouse shall be entitled to one-half of the estate,
and the legitimate parents or ascendants to the
other half.

14. Surviving Spouse gets ½ and the Art. 1001. Should brothers and sisters or their
spouse and legitimate BSNN get ½, with the children survive with the widow or widower, the
legitimate nephews and nieces inheriting by latter shall be entitled to one-half of the
brothers, sisters, representation in proper cases inheritance and the brothers and sisters or their
nephews and children to the other half.
nieces
15. Surviving Spouse gets ½ while illegitimate Art. 994. In default of the father or mother, an
spouse and BSNN get ½, with representation illegitimate child shall be succeeded by his or her
illegitimate surviving spouse who shall be entitled to the
brother, sisters, entire estate.
nephews and If the widow or widower should survive with
nieces brothers and sisters, nephews and nieces, she or
he shall inherit one-half of the estate, and the
latter the other half.

16. Illegitimate The whole estate Art. 993. If an illegitimate child should die without
parents issue, either legitimate or illegitimate, his father
or mother shall succeed to his entire estate; and
if the child's filiation is duly proved as to both
parents, who are both living, they shall inherit
from him share and share alike.

17. Illegitimate Illegitimate parents are excluded Art. 993. If an illegitimate child should die without
parents and any by the children issue, either legitimate or illegitimate, his father
children or mother shall succeed to his entire estate; and
if the child's filiation is duly proved as to both
parents, who are both living, they shall inherit
from him share and share alike.

18. Legitimate Whole estate, half blood gets ½ Art. 1004. Should the only survivors be brothers and
brothers and of full blood’s share [2:1] sisters of the full blood, they shall inherit in equal
sisters shares.
Art. 1006. Should brother and sisters of the full
blood survive together with brothers and sisters
of the half blood, the former shall be entitled to a
share double that of the latter.

19. Legitimate Whole estate, 2:1 for half blood, Art. 1005. Should brothers and sisters survive
brothers & with representation for nephews together with nephews and nieces, who are the
sisters, nephews and nieces children of the descendant's brothers and sisters
& nieces of the full blood, the former shall inherit per
capita, and the latter per stirpes.
Art. 1008. Children of brothers and sisters of the half
blood shall succeed per capita or per stirpes, in
accordance with the rules laid down for the
brothers and sisters of the full blood.

20. Nephews and Uncles and aunts are excluded. Art. 1009. Should there be neither brothers nor
nieces with The nephews and nieces get the sisters nor children of brothers or sisters, the
uncles and aunts whole estate other collateral relatives shall succeed to the
estate.
The latter shall succeed without distinction of
lines or preference among them by reason of

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relationship by the whole blood.

And the case of Bacayo v Borromeo

21. Illegitimate Whole estate, 2:1 full and half No article governing
brothers and blood
sisters
22. Illegitimate Whole estate No article governing
brothers &
sisters, nephews
& nieces
23. Nephews and Whole, PER CAPITA, 2:1 ratio Art. 975. When children of one or more brothers or
nieces sisters of the deceased survive, they shall inherit
from the latter by representation, if they survive
with their uncles or aunts. But if they alone
survive, they shall inherit in equal portions.
Art. 1008. Children of brothers and sisters of the half
blood shall succeed per capita or per stirpes, in
accordance with the rules laid down for the
brothers and sisters of the full blood.

24. Other collaterals Whole, PER CAPITA, nearer
excludes the more remote in
degree
Art. 1009. Should there be neither brothers nor
sisters nor children of brothers or sisters, the
other collateral relatives shall succeed to the
estate.
The latter shall succeed without distinction of
lines or preference among them by reason of
relationship by the whole blood.
Art. 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in
the collateral line.

25. The state Whole estate Art. 1011. In default of persons entitled to succeed
in accordance with the provisions of the
preceding Sections, the State shall inherit the
whole estate.

creation of a permanent trust for the benefit of

• AS TO THE STATE the institutions concerned.
 Assignment and disposition of
decedent’s asses
a) If decedent was a resident of the Philippines SECTION 2. –
at ANY Time ORDER OF INTESTATE SUCCESSION
i. Personal Property – to municipality
of last residence
ii. Real Property – where situated
SUBSECTION 1. - Descending Direct Line
b) If decedent was NEVER a resident of the
Philippines – where property is situated,
whether real or personal property. Art. 978. Succession pertains, in the first place, to
the descending direct line.
 How property is to be used
a) For the benefit of public educational and
• WHO ARE THE INTESTATE HEIRS [not in order]
charitable institutions in the respective
A. Legitimate Children/Descendants
municipalities/cities
B. Illegitimate Children/Descendants
b) Alternatively, at the instance of an interested C. Legitimate Parents/Ascendants
party, or motu proprio, court may order D. Illegitimate Parents

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E. Surviving Spouse
F. Brothers, Sisters, Nephews, Nieces
G. Other Collaterals up to the 5th degree
H. The State
 The first 5 classes of intestate
heirs are also compulsory heirs.
 There is also an overlapping of
compulsory and intestate succession, i.e. the
legitime and the intestate portions merge.
 There is a very close parallel
between the rules of compulsory succession and
those of intestate succession.
Art. 979. Legitimate children and their
descendants succeed the parents and other
ascendants, without distinction as to sex or
age, and even if they should come from
different marriages.
An adopted child succeeds to the
property of the adopting parents in the same
manner as a legitimate child.
• The right of an adopted child in relation to the adopter is
governed by sections 17 and 18 of RA8552, which lays
down the same rule that an adopted child succeeds to
the property of the adopting parents in the same manner
as a legitimate child.
Art. 980. The children of the deceased shall
always inherit from him in their own right,
dividing the inheritance in equal shares.
Art. 981. Should children of the deceased and
descendants of other children who are dead,
survive, the former shall inherit in their own
right, and the latter by right of representation.
Art. 982. The grandchildren and other
descendants shall inherit by right of
representation, and if any one of them should
have died, leaving several heirs, the portion
pertaining to him shall be divided among the
latter in equal portions.
• Grandchildren do not inherit per capita even if all children
die – they inherit per stirpes, EXCEPT if ALL children
renounce, then the grandchildren will inherit in their own
right / per capita.
Art. 983. If illegitimate children survive with
legitimate children, the shares of the former
shall be in the proportions prescribed by
Article 895.
• The proportion of the shares of legitimate and illegitimate
children has been simplified to 2:1 by virtue of the
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amendments introduced by Articles 163 and 176 of the
Family Code.
• In this combination, care should be taken lest the
legitimes of the legitimate children be impaired.
Consequently, a 2-step process should be observed –
1) Segregate the legitimes of the children – both
legitimate and illegitimate
2) If any residue is left, apportion it in the
proportion of 2:1.
• Itis possible – depending on the number of legitimates
and illegitimates – that the estate may not even be
sufficient to satisfy the legitimes, in which case, the
second step in the process will not even be feasible. In
fact, in such case, the legitimes of the ILLEGITIMATES
will have to be reduced pro rata.
Art. 984. In case of the death of an adopted child,
leaving no children or descendants, his
parents and relatives by consanguinity and
not by adoption, shall be his legal heirs.
• Repealed by Sections 17 and 18 of RA8552.
SUBSECTION 2. - Ascending Direct Line
Art. 985. In default of legitimate children and
descendants of the deceased, his parents and
ascendants shall inherit from him, to the
exclusion of collateral relatives.
Art. 986. The father and mother, if living, shall
inherit in equal shares.
Should one only of them survive, he or
she shall succeed to the entire estate of the
child.
Art. 987. In default of the father and mother, the
ascendants nearest in degree shall inherit.
Should there be more than one of equal
degree belonging to the same line they shall
divide the inheritance per capita; should they
be of different lines but of equal degree, one-
half shall go to the paternal and the other half
to the maternal ascendants. In each line the
division shall be made per capita.
• There is no right of representation in the ascending line.
CASE FOR ARTS. 978-987
Sayson v. CA
SUBSECTION 3. - Illegitimate Children
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SUCCESSION REVIEWER
Art. 988. In the absence of legitimate descendants
or ascendants, the illegitimate children shall
succeed to the entire estate of the deceased.
Art. 989. If, together with illegitimate children,
there should survive descendants of another
illegitimate child who is dead, the former shall
succeed in their own right and the latter by
right of representation.
• Only difference – an illegitimate child can be represented
bi either an illegitimate or legitimate child of his. While a
legitimate child can only be represented by a legitimate
child of his.
Art. 990. The hereditary rights granted by the two
preceding articles to illegitimate children
shall be transmitted upon their death to their
descendants, who shall inherit by right of
representation from their deceased
grandparent.
Art. 991. If legitimate ascendants are left, the
illegitimate children shall divide the
inheritance with them, taking one-half of the
estate, whatever be the number of the
ascendants or of the illegitimate children.
Art. 992. An illegitimate child has no right to
inherit ab intestato from the legitimate
children and relatives of his father or mother;
nor shall such children or relatives inherit in
the same manner from the illegitimate child.
• MEMORIZE!
• This is the well-known and much criticized successional
barrier between legitimate and illegitimate relatives of a
decedent.
CASES
Corpus v. Corpus
- Teodoro died without forced heirs. His will was probated.
- At his death his nearest relatives were: Luis (his half
brother), Paz (his half sister), children of his half brother
Pablo), and Juanita (daughter of his half brother Jose).
- Teodoro was the son of Luis Rafael Yangco and Ramona
Arguelles, the widow of Tomas Corpus.
- Before her union with Luis Rafael Yangco, Ramona had
begotten five children with Tomas Corpus, two of whom
were the Pablo and Jose.
- The project of partition was opposed by the estate of Luis
whose counsel contended that intestacy should be
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declared because the will does not contain an institution of
heir.
- The probate court however approved the project of
partition.
- It appears that Teodoro was an acknowledged natural child
and not a legitimate child was the statement in the will of
his father, Luis Rafael Yangco, dated June 14, 1907, that
Teodoro and his three other children were his
acknowledged natural children.
WON Juanita is entitled to a share in intestate estate of
Teodoro. (Juanita is a legitimate daughter of Romana and
Tomas.)
- NO. Since Teodoro was an acknowledged natural child or
was illegitimate and since Juanita was the legitimate child
of Jose Corpus, himself a legitimate child, we hold that
appellant Tomas Corpus has no cause of action for the
recovery of the supposed hereditary share of his mother,
Juanita Corpus, as a legal heir, in Yangco's estate. Juanita
Corpus was not a legal heir of Yangco because there is no
reciprocal succession between legitimate and illegitimate
relatives.
- Corpus concedes that if Teodoro R. Yangco was a natural
child, he (Tomas Corpus) would have no legal personality
to intervene in the distribution of Yangco's estate.
- Art. 992 of the NCC provides that "an illegitimate child has
no right to inherit ab intestato from the legitimate children
and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate
child."
- The rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family while the
legitimate family is, in turn, hated by the illegitimate child.
Leonardo v. CA
- Francisca Reyes died intestate and was survived by her
two daughters and grandson, who is the son of her 3 rd
daughter who predeceased her. Grandson died eventually
2 yrs after.
- Leonardo now claims ownership over some properties of
Francisca because he was a son of the grandson.
W/N Leonardo may inherit.
- SC held that he cannot because:
- 1. He was an illegitimate child of grandson. He was born
outside of wedlock and while his father’s first marriage is
still subsisting.
- 2. An illegitimate child may not inherit by right of
representation from the legitimate relatives of his father.
- ART. 992
Diaz v. IAC
150 SCRA 645 (1987)
- Simona Jardin has a niece Felisa Jardin from her legitimate
sister Juliana Jardin. At the same time, Simona also had a
legitimate son, Pablo santero, who predeceased her. On
the other hand, Pablo Santero was survived by his 6
acknowledged natural children.
- Simona Jardin died intestate with only her niece Felisa as
the sole surviving heir. During the intestate proceedings of
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the estate of Simona, the illegitimate children of Pablo
Santero intervened and contended that as the illegitimate
children of the deceased Simona they have the right to
succeed by representation.
- The grandchildren premised their rights to succeed under
Art 990 of the NCC, which grants the right of representation
to descendants whether legitimate or illegitimate. Hence, by
said proviso, the grandchildren has the right to represent
their deceased father in the estate of their grandmother.
Who between Felisa Jardin and the Illegitimate grandchildren
of Simona are to be considered the legal heirs of Simona
Jardin.
- Felisa Jardin is the sole legal heir of the decedent.
- The SC held that the grandchildren's reliance in Art 990 is
misplaced and that the applicable law is Art 992. Art 990 is
not applicable because Pablo Santero is a legitimate child
of Simona while the oppositors are the former's illegitimate
children. (Art 990 applies to the right of the descendants
of an illegitimate child to inherit by representation.)
- Art 992 provides a barrier or iron curtain in that it prohibits
absolutely a succession ab intestato between the
illegitimate child and the legitimate children and relatives of
of the father or mother of said legitimate child. Between the
legitimate and illegitimate family there is presumed to be an
intervening antagonism and incompatibility.
- It is clear therefore from Art 992 of the NCC that the phrase
"legitimate children and relatives of his father and mother"
includes Simona Jardin. Hence, the illegitimate
grandchilren are barred from asserting their right to
succeed from Simona, who is a legitimate relative of their
father.
- ART 992 prohibits absolutely a succession ab intestato
between the illegitimate child and the legitimate children
and relatives of the father or mother (who must be a
legitimate child). (However note that descendants, whether
legitimate or illegitimate, can inherit by right of
representation if the person to be represented is an
illegitimate child.).
Diaz v. IAC
182 SCRA 427 (1990)
- The illegitimate children of Pablo Santero filed a 2nd Motion
for Reconsideration on the decision of the SC holding them
disqualified from inheriting from the estate of Simona
Jardin. (same facts as above)
- Said grandchildren are now invoking Arts 902, 982, 989
and 990 of the New Civil Code to bolster their right to
succeed.
Whether or not the illegitimate children of a legitimate child can
inherit by right of representation from the children and relatives
of such legitimate parent
- No.
- First, Articles 902, 989 and 990 clearly speaks of
successional rights of illegitimate children, which rights
are transmitted to their descendants upon death. The
descendants (of these illegitimate children) who may
inherit by virtue of the right of representation may be
legitimate or illegitimate.
- Second, although Art 982 provides that "the grandchildren
and other descendants shall inherit by right of
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representation", the same is limited by Art 992 to the end
that an illegitimate child has no right to inherit ab intestato
from the legitimate children and relatives of his father or
mother (who must be legitimate children themselves).
- Third, it is true that while the NCC granted successional
rights to illegitimate children, those articles must however
be read in conjunction with Art 992, which prohibits the right
of representation from being exercised where the person to
be represented is a legitimate child. The determining factor
therefore is the legitimacy or illegitimacy of the person to be
"represented." It must be emphasized that illegitimate
children have only those rights expressly garnted to them
by law.
- Fourth, the term "relatives", in accordance with the rules of
statutory construction, must be understood to have a
general and inclusive scope inasmuch as the term is a
general one. In fact, if the law wants to distinguish it
expressly says so by adding qualifiers such as the word
"collateral".
- From the aforementioned, SC affirmed its earlier decision
that the illegitimate grandchildren are barred from inheriting
ab intestato from Simona's estate..
- ART 992 prohibits absolutely a succession ab intestato
between the illegitimate child and the legitimate children
and relatives of the father or mother (who must be a
legitimate child). (However note that descendants, whether
legitimate or illegitimate, can inherit by right of
representation if the person to be represented is an
illegitimate child.)
Vda. De Crisologo v. CA
- Petitioners in this case filed an action for ownership,
annulment of sale, and delivery of possession of various
properties against Bernardo Mallillin.
- Bernardo claims that petitioners are complete strangers to
the decedent Julia Capiao inasmuch as Lutgarda is the
decedent’s illegitimate daughter, a product of her extra-
marital relations with one Victoriano Taccad.
- The petitioners claim to be legal heirs being relatives of
Lutgarda within the fifth civil degree.
- The lower court said that they cannot inherit because they
are legitimate relatives of Julia Capiao and they cannot
inherit from an illegitimate daughter of the latter pursuant to
Article 992 of the Civil Code.
Whether or not the relatives of Julia Capiao, namely, the
petitioners in this case, can inherit from Lutgarda Capiao, the
original owner of the properties in dispute.
- NO.
- It is clear from the records that the petitioners cannot inherit
the properties in question because of Article 992 of the Civil
Code.
- Being relatives on the legitimate line of Julia Capiao, they
cannot inherit from her illegitimate daughter.
- Article 992.
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Art. 993. If an illegitimate child should die without
issue, either legitimate or illegitimate, his
father or mother shall succeed to his entire
estate; and if the child's filiation is duly
proved as to both parents, who are both
living, they shall inherit from him share and
share alike.
Art. 994. In default of the father or mother, an
illegitimate child shall be succeeded by his or
her surviving spouse who shall be entitled to
the entire estate.
If the widow or widower should survive
with brothers and sisters, nephews and
nieces, she or he shall inherit one-half of the
estate, and the latter the other half.
SUBSECTION 4. - Surviving Spouse
• There are no rules on marriage mortis cause [unlike in
legitimes]
Art. 995. In the absence of legitimate descendants
and ascendants, and illegitimate children and
their descendants, whether legitimate or
illegitimate, the surviving spouse shall inherit
the entire estate, without prejudice to the
rights of brothers and sisters, nephews and
nieces, should there be any, under article
1001.
Art. 996. If a widow or widower and legitimate
children or descendants are left, the surviving
spouse has in the succession the same share
as that of each of the children.
• This rule holds even if there is only 1 legitimate child, in
which case, the child and the surviving spouse will divide
the estate equally.
• When the law speaks of “brothers and sisters, nephews
and nieces” as legal heirs of an illegitimate child, it refers
to illegitimate brothers and sisters as well as to the
children, whether legitimate or illegitimate, of such
brothers and sisters.
Art. 997. When the widow or widower survives
with legitimate parents or ascendants, the
surviving spouse shall be entitled to one-half
of the estate, and the legitimate parents or
ascendants to the other half.
Art. 998. If a widow or widower survives with
illegitimate children, such widow or widower
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shall be entitled to one-half of the inheritance,
and the illegitimate children or their
descendants, whether legitimate or
illegitimate, to the other half.
Art. 999. When the widow or widower survives
with legitimate children or their descendants
and illegitimate children or their descendants,
whether legitimate or illegitimate, such widow
or widower shall be entitled to the same share
as that of a legitimate child.
Art. 1000. If legitimate ascendants, the surviving
spouse, and illegitimate children are left, the
ascendants shall be entitled to one-half of the
inheritance, and the other half shall be
divided between the surviving spouse and the
illegitimate children so that such widow or
widower shall have one-fourth of the estate,
and the illegitimate children the other fourth.
Art. 1001. Should brothers and sisters or their
children survive with the widow or widower,
the latter shall be entitled to one-half of the
inheritance and the brothers and sisters or
their children to the other half.
Art. 1002. In case of a legal separation, if the
surviving spouse gave cause for the
separation, he or she shall not have any of
the rights granted in the preceding articles.
CASES FOR ARTICLES 995-1002
Santillon v. Miranda
- Santillon died without testament in Tayug, Pangasinan, his
residence, leaving one son Claro, and his wife, Perfecta
Miranda. During his marriage, Pedro acquired several
parcels of land located in that province.
- About four years after his death, Claro Santillon filed a
petition for letters of administration. Opposition to said
petition was entered by the widow Perfecta Miranda and
the spouses Benito U. Miranda and Rosario Corrales on
the following grounds: (a) that the properties enumerated in
the petition were all conjugal, except three parcels which
Perfecta Miranda claimed to be her exclusive properties;
(b) that Perfecta Miranda by virtue of two documents had
conveyed 3/4 of her undivided share in most of the
properties enumerated in the petition to said spouses
Benito and Rosario;
- Claro rests his claim to 3/4 of his father's estate on Art. 892,
of the New Civil Code which provides that:
- "If only the legitimate child or descendant of the deceased
survives, the widow or widower shall be entitled to one-
fourth of the hereditary estate. . . .'As she gets one-fourth,
therefore, I get 3/4, says Claro.
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- Perfecta, on the other hand, cites Art. 996 which provides:
"If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the
succession the same share as that of each of the children."
- Replying to Perfecta's claim, Claro says the article is unjust
and inequitable to the extent that it grants the widow the
same share as that of the children in intestate succession,
whereas in testate, she is given 1/4 and the only child 1/2.
- Perfecta, on the other hand, contends that Art. 996 should
control, regardless of its alleged inequity, being as it is, a
provision on intestate succession involving a surviving
spouse and a legitimate child, inasmuch as in statutory
construction, the plural word "children" includes the
singular, "child".
How shall the estate of a person who dies intestate be divided
when the only survivors are the spouse and one legitimate
child?
- Art. 892 of the New Civil Code falls under the chapter on
Testamentary Succession; whereas Art. 996 comes under
the chapter on Legal or Intestate Succession. Such being
the case, it is obvious that Claro cannot rely on Art. 892 to
support his claim to 3/4 of his father's estate. Art. 892
merely fixes the legitime of the surviving spouse and Art.
888 thereof, the legitime of children in testate succession.
While it may indicate the intent of the law with respect to
the ideal shares that a child and a spouse should get when
they concur with each other, it does not fix the amount of
shares that such child and spouse are entitled to when
intestacy occurs. Because if the latter happens, the
pertinent provision on intestate succession shall apply; i. e.
Art. 996.
- Children:— It is a maxim of statutory construction that
words in plural include the singular. 2 So Art. 996 could or
should be read (and so applied): "if the widow or widower
and a legitimate child are left, the surviving spouse has the
same share as that of the child."
- Our conclusion (equal shares) seems a logical inference
from the circumstance that whereas Article 834 of the
Spanish Civil Code, from which Art. 996 was taken,
contained two paragraphs governing two contingencies, the
first, where the widow or widower survives with legitimate
children (general rule), and the second, where the widow or
widower survives with only one child (exception), Art. 996
omitted to provide for the second situation, thereby
indicating the legislator's desire to promulgate just one
general rule applicable to both situations.
- The resultant division may be unfair as some writers
explain, — and this we are not called upon to discuss —
but it is the clear mandate of the statute, which we are
bound to enforce.
- When intestacy occurs, a surviving spouse concurring with
only one legitimate child of the deceased is entitled to one-
half of the estate of the deceased spouse under Article 996
of the Civil Code.
Pascual v. Pascual Bautista
Landayan v. Bacani
- Teodoro Abenojar owned parcels of land in Pangasinan
and a house and lot in Manila.
- He died intestate.
- Maxima Adrada, the surviving spouse of Teodoro, and
Severino Abenojar, executed an extra-judicial partition
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whereby they adjudicated between themselves the
properties left by Teodoro.
- Severino represented himself as the only and forced heir
and descendant of Teodoro.
- About 18 years after the execution of the said document,
petitioners filed a complaint seeking a declaration that they
are legal heirs of Teodoro and that they be given the shares
that they are entitled to with respect to the properties of
Teodoro.
- Petitioners alleged that they are the legitimate children of
Guillerma Abenojar, who was the only child of Teodoro with
his first wife named Florencia Bautista and that while
Teodoro contracted a 2nd marriage with Antera Mandap and
a 3rd with Maxima Andrada, he did not have any offspring.
They aver that Severino is an illegitimate son of Guillerma
Abenojar.
- Private respondents alleged that Teodoro married only
once and that was with Maxima. They claimed that
Severino is an acknowledged natural child of Teodoro with
Florencia. They aver that Guillerma, the mother of
petitioners, was Teodoro’s spurious child with Antera
Mandap.
- Private respondents also alleged that the action had
already prescribed.
- The trial court dismissed the action because of prescription.
Whether the action is barred by prescription.
- NO. The lower court erred assuming that the extra-judicial
partition to be merely a voidable contract and not a void
one. Thus, there should first be a determination of the judge
regarding the legal status of Severino.
- The SC ordered the lower court to try the case on the
merits to determine the legal status of the Severino.
- If the claim of the petitioners is correct, then Severino has
no rights of legal succession from Teodoro because of Art.
992 of the NCC.
- The right of representation is denied by law to an
illegitimate child who is disqualified to inherit ab intestate
form the legitimate children and relatives of his father.
Whether Severino may be considered as legal heir of Teodoro.
- The right of Severino to be considered a legal heir of
Teodoro depends on the truth of his allegations that he is
not an illegitimate child of Guillerma, but an acknowledged
natural child of Teodoro.
- Should it be proved that Severino is not a legal heir, the
portion of the deed of extra-judicial partition adjudicating
properties of Teodoro in his favor shall be deemed
inexistent and void from the beginning.
- Art. 992 of the NCC: An illegitimate child has no right to
inherit ab intestato from the legitimate children and relatives
of his father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child.
- Art. 1105 of the NCC: A partition which includes a person
believed to be an heir, but who is not, shall be void only
with respect to such person.
Manuel v. ferrer
Del Rosario v. Conanan
SUBSECTION 5. - Collateral Relatives
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Art. 1003. If there are no descendants,
ascendants, illegitimate children, or a
surviving spouse, the collateral relatives shall
succeed to the entire estate of the deceased
in accordance with the following articles.
Art. 1004. Should the only survivors be brothers
and sisters of the full blood, they shall inherit
in equal shares.
• Prescriptive period for the claim is FIVE YEARS from the
delivery of the property to the state or political
subdivision concerned.
• Who may make the claim – any person entitled by
succession to the estate, including any heir of any kind of
succession, legitime, testamentary or intestate.
THE PROBLEM OF PARTIAL INTESTACY
• The combinations laid down in Articles 978-1014 cover
only cases of TOTAL intestacy. There is no provision to
govern cases of partial intestacy when the decedent has
left a will disposing of part, but not all, of the disposable
portion.
• How then should the estate be divided if the decedent
died with a will but the will does not dispose of the entire
free or disposable portion? The problem is solved by
inference, bearing in mind the law’s intent, thus:
1) Trace where the free portion went in total
intestacy
2) Since part of that free portion was disposed of
by will, the testamentary provision should be
carried out, and what is left of the free portion
should then be given to the intended
beneficiary in intestacy.
• EXAMPLE
 X died, leaving as his survivors
his legitimate parents A and B and his wife Y,
without any children. He left a will giving 1/8 of his
entire estate to Caritas Manila. His net estate is
worth P600,000.
• PROCESS/ANSWER
 The will is not inofficious, since
it disposes only of 1/8 of the estate, the disposable
portion being ¼.
 The legitimes of the
compulsory heirs are –
o A and B as legitimate parents – ½ of estate =
P300,000
o Y as surviving spouse – ¼ of estate = P150,000
 In total intestacy, the sharings
would have been – [according to Art997]
o A and B to ½ of the estate = P300,000
o Y to ½ of the estate = P300,000
 The intended recipient of the
undisposed portion is Y since she is the one to
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whom the entire free portion went in total intestacy
[since A and B simply got their legitimes.
 Therefore, since part of the free
portion was given away by will, the remainder should
be given to Y.
 Hence, Caritas Manila gets 1/8
or P75,000. A and B get ½ or P300,000 divided
between them, so P150,000 each. Y then gets
P225,000. All shares total to the P600,000 estate.
Art. 1005. Should brothers and sisters survive
together with nephews and nieces, who are
the children of the descendant's brothers and
sisters of the full blood, the former shall
inherit per capita, and the latter per stirpes.
Art. 1006. Should brother and sisters of the full
blood survive together with brothers and
sisters of the half blood, the former shall be
entitled to a share double that of the latter.
Art. 1007. In case brothers and sisters of the half
blood, some on the father's and some on the
mother's side, are the only survivors, all shall
inherit in equal shares without distinction as
to the origin of the property.
Art. 1008. Children of brothers and sisters of the
half blood shall succeed per capita or per
stirpes, in accordance with the rules laid
down for the brothers and sisters of the full
blood.
Art. 1009. Should there be neither brothers nor
sisters nor children of brothers or sisters, the
other collateral relatives shall succeed to the
estate.
The latter shall succeed without
distinction of lines or preference among them
by reason of relationship by the whole blood.
Art. 1010. The right to inherit ab intestato shall
not extend beyond the fifth degree of
relationship in the collateral line.
SUBSECTION 6. - The State
Art. 1011. In default of persons entitled to
succeed in accordance with the provisions of
the preceding Sections, the State shall inherit
the whole estate.
Art. 1012. In order that the State may take
possession of the property mentioned in the
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preceding article, the pertinent provisions of
the Rules of Court must be observed.
Art. 1013. After the payment of debts and
charges, the personal property shall be
assigned to the municipality or city where the
deceased last resided in the Philippines, and
the real estate to the municipalities or cities,
respectively, in which the same is situated.
If the deceased never resided in the
Philippines, the whole estate shall be
assigned to the respective municipalities or
cities where the same is located.
Such estate shall be for the benefit of
public schools, and public charitable
institutions and centers, in such
municipalities or cities. The court shall
distribute the estate as the respective needs
of each beneficiary may warrant.
The court, at the instance of an interested
party, or on its own motion, may order the
establishment of a permanent trust, so that
only the income from the property shall be
used.
Art. 1014. If a person legally entitled to the estate
of the deceased appears and files a claim
thereto with the court within five years from
the date the property was delivered to the
State, such person shall be entitled to the
possession of the same, or if sold the
municipality or city shall be accountable to
him for such part of the proceeds as may not
have been lawfully spent.
IN TESTAMENTARY SUCCESSION
• In case of partial intestacy
1) 2 or more persons are called to the same
CASES FOR ARTICLES 1003-1014
Abellana v. Ferraris
Tioco de Papa v. Camacho
Bicomong v. Almanza
CHAPTER 4
PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS
SECTION 1. –
RIGHT OF ACCRETION
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Art. 1015. Accretion is a right by virtue of which,
when two or more persons are called to the
same inheritance, devise or legacy, the part
assigned to the one who renounces or cannot
receive his share, or who died before the
testator, is added or incorporated to that of
his co-heirs, co-devisees, or co-legatees.
Art. 1016. In order that the right of accretion may
take place in a testamentary succession, it
shall be necessary:
(1) That two or more persons be called to the
same inheritance, or to the same portion
thereof, pro indiviso; and
(2) That one of the persons thus called die
before the testator, or renounce the
inheritance, or be incapacitated to receive
it.
• ACCRETION
 Definition – a right by virtue of
which, when 2 or more persons are called to the
same inheritance, devise or legacy, the part
assigned to the one who renounces or cannot
receive his share, or who died before the testator.
 Occasions for Operation of
Accretion
a) RENUNCIATION
b) PREDECEASE
c) INCAPACITY

ELEMENTS FOR ACCRETION
inheritance, or to the same portion thereof,
pro indiviso
o Meaning of pro indiviso:
 Either the co-heirs are instituted
without individual designation of
shares, ex. “I institute A and B to ½
of my estate.” Or
 The co-heirs are instituted with the
specification that they share equally
[“in equal shares”] or that they have
the same fractional sharing for each
[Art1017]. Examples: “I institute A, B
and C to ½ of my estate in equal
shares,” or “I institute A, B and C to
½ of my estate, each of them to take
1/3 of such ½.”
 Will accretion occur if the fractional
sharings of the co-heirs are
unequal? YES. All that the law
requires is that the institution be pro
indiviso, which means “as undivided”
or “in common”. The term does not
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import equality of shares. Thus,
accretion will occur even if the
sharings are unequal, as long as the
result is co-ownership.
2) One of the persons thus called die before
the testator, or renounce the inheritance
or be incapacitated to receive it.
o Renunciation, predecease or incapacity
of one or more but LESS THAN ALL of
the instituted heirs.
Art. 1017. The words "one-half for each" or "in
equal shares" or any others which, though
designating an aliquot part, do not identify it
by such description as shall make each heir
the exclusive owner of determinate property,
shall not exclude the right of accretion.
In case of money or fungible goods, if the
share of each heir is not earmarked, there
shall be a right of accretion.
Art. 1018. In legal succession the share of the
person who repudiates the inheritance shall
always accrue to his co-heirs.
• In intestacy, accretion occurs –
A. In repudiation or renunciation – accretion is
subordinate to representation in intestacy.
B. In predecease, only if representation does not
take place
C. In incapacity or unworthiness, only if
representation does not take place.
• The co-heirs in whose favor accretion occurs must be co-
heirs in the same category as the excluded heir.
 Example, if X dies intestate and
is survived by his wife Y and his brothers A, B and
C. If C renounces, his portion goes to A and B by
accretion. Y is not an accruing co-heir, not being
of the same category or class.
Art. 1019. The heirs to whom the portion goes by
the right of accretion take it in the same
proportion that they inherit.
• General Rule - Accretion should be proportional.
Art. 1020. The heirs to whom the inheritance
accrues shall succeed to all the rights and
obligations which the heir who renounced or
could not receive it would have had.
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• EXCEPTIONS to general rule that accretion should be
proportional –
a) In testamentary succession, if the testator
provides otherwise,
b) If the obligation is purely persona, and hence
intransmissible.
Art. 1021. Among the compulsory heirs the right
of accretion shall take place only when the
free portion is left to two or more of them, or
to any one of them and to a stranger.
Should the part repudiated be the
legitime, the other co-heirs shall succeed to it
in their own right, and not by the right of
accretion.
• 1ST paragraph – 3 kinds of succession: compulsory,
testamentary and intestate. These 3 are distinct,
although they may operate simultaneously.
Consequently, accretion is restricted in its operation
within the confines of the particular kind of succession
involved.
• 2ND paragraph – there is NO ACCRETION in the
LEGITIME. In most cases, this rule will not substantially
affect the operation of the legitime. The possible
significance of this is when it comes to the computation
of legitimes of illegitimate children or the surviving
spouse, when concurring with legitimate children.
Art. 1022. In testamentary succession, when the
right of accretion does not take place, the
vacant portion of the instituted heirs, if no
substitute has been designated, shall pass to
the legal heirs of the testator, who shall
receive it with the same charges and
obligations.
• In the testamentary succession, accretion is subordinate
to substitution, if the testator so provided. This is
because substitution is the testator’s express intent,
whereas accretion is merely his implied intent.
• Obviously, if there is neither substitution nor accretion,
the part left vacant will lapse into intestacy and will be
disposed of accordingly.
Art. 1023. Accretion shall also take place among
devisees, legatees and usufructuaries under
the same conditions established for heirs.
SECTION 2. –
CAPACITY TO SUCCEED
BY WILL OR BY INTESTACY
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Art. 1024. Persons not incapacitated by law may
succeed by will or ab intestato.
The provisions relating to incapacity by
will are equally applicable to intestate
succession.
• The general rule is in favor of capacity to succeed, as
long as the successor has juridical personality.
Incapacity must be based on some legal ground and
must be shown.
• The second paragraph is inaccurate. Some grounds for
incapacity to succeed by will have no application to
compulsory or intestate succession.
• The articles laying down the cause of incapacity to
succeed are Articles 1027, 2028 and 1032.
A. Article 1027 pars. 1-5 – applicable only to
testamentary succession
B. Article 1027 par6 – applicable to ALL kinds of
succession
C. Article 1028 – applicable only to testamentary
succession
D. Article 1032 – applicable to ALL kinds of
succession
Art. 1025. In order to be capacitated to inherit, the
heir, devisee or legatee must be living at the
moment the succession opens, except in
case of representation, when it is proper.
A child already conceived at the time of
the death of the decedent is capable of
succeeding provided it be born later under
the conditions prescribed in article 41.
• REQUIREMENT FOR CAPACITY TO SUCCEED OF
NATURAL PERSONS
A. General rule – must be LIVING when
succession opens
1. When succession
opens – the decedent’s death under Art777
2. Meaning of “living” – it
is enough that the heir, devisee or legatee
be already conceived when the decedent
dies, provided it be born later, in
accordance with Articles 40 and 41.
Inheriting is favorable to the child.
B. If institution is subject to a Suspensive
Condition
o Successor must ALSO be living when the
condition happens [Art1034 par3]. Thus, in
a conditional institution, the successor must
be living BOTH when the decedent dies
AND when the condition happens.
C. If institution subject to a Suspensive Term
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o The requirement of being alive applies only
at the moment of the decedent’s death, the
successor need not be alive, when the term
arrives [Art878]
• Representation NOT an exception to Requirement
 The requirement that the
successor should be alive when the decedent dies is
absolute. There is no exception to this rule, the
provisions of this article notwithstanding.
 For representation to occur, the
representation must at least already be conceived
when the decedent dies, because of the provisions
of Articles 971 and 973.
 Example – X has 2 sons A and
B. B was disinherited by X. X died in 1985. In 1988
B begot a child. B’s child cannot represent B in the
succession to X.
Art. 1026. A testamentary disposition may be
made to the State, provinces, municipal
corporations, private corporations,
organizations, or associations for religious,
scientific, cultural, educational, or charitable
purposes.
All other corporations or entities may
succeed under a will, unless there is a
provision to the contrary in their charter or
the laws of their creation, and always subject
to the same.
• REQUIREMENT FOR CAPACITY OF JURIDICAL
PERSONS TO SUCCEED
 It must already EXIST as a
juridical person when the decedent dies.
 Organizations or associations
which do not possess juridical personality cannot
succeed, because legally, they would not exist. The
enumeration of juridical persons is found in Art 44:
Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities
for public interest or purpose, created by
law; their personality begins as soon as they
have been constituted according to law;
(3) Corporations, partnerships and
associations for private interest or purpose
to which the law grants a juridical
personality, separate and distinct from that
of each shareholder, partner or member.
 For institutions subject to
suspensive conditions or terms, the rules outlined in
the previous article apply.
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Art. 1027. The following are incapable of
succeeding:
(1) The priest who heard the confession of the
testator during his last illness, or the
minister of the gospel who extended
spiritual aid to him during the same
period;
(2) The relatives of such priest or minister of
the gospel within the fourth degree, the
church, order, chapter, community,
organization, or institution to which such
priest or minister may belong;
(3) A guardian with respect to testamentary
dispositions given by a ward in his favor
before the final accounts of the
guardianship have been approved, even if
the testator should die after the approval
thereof; nevertheless, any provision made
by the ward in favor of the guardian when
the latter is his ascendant, descendant,
brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a
will, the spouse, parents, or children, or
any one claiming under such witness,
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health
officer or druggist who took care of the
testator during his last illness;
(6) Individuals, associations and corporations
not permitted by law to inherit.
• Pars. 1-5 apply only to TESTAMENTARY Succession.
They have no application to the legitime or to intestacy.
Thus, a person may be disqualified to succeed by will
under these paragraphs but will still be entitled to a
legitime or to an intestate portion.
 It is unfortunate that these
paragraphs, [except Par3, which clearly limits its
application to testamentary dispositions] do not state
clearly that they only apply to testamentary
succession and not to the legitime or intestacy.
• Par6 is misplaced because it provides for TOTAL
disqualification. It should be made a separate article.
• Rationale of Pars. 1-5 – the law, in imposing a
disqualification, seeks to prevent any possible abuse of
the moral or spiritual ascendancy for purposes of
testamentary benefit.
• This disqualification is peremptory. No actual duress or
influence need be shown, these are conclusively
presumed. Proof of absence of duress or influence is
irrelevant and will not remove the disqualification.
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• PERSONS INCAPACITATED TO SUCCEED
1. Priest or minister of the gospel
o Requisites:
a) The will must have been
executed during the testator’s last
illness
b) The spiritual ministration must
have been extended during the last
illness.
c) The will must have been
executed during or after the spiritual
ministration.
o Notwithstanding the seemingly restrictive
terms of this disqualification, it applies not
only to Christian priests, pastors, ministers
and so forth, but also to all individuals
belonging to other religions, sects or cults,
whose office or function is to extend the
peculiar spiritual ministrations of their creed.
2. Priest’s 4th degree relatives and his Church
o Purpose of disqualification – to prevent
indirect violations or circumventions of
par1.
o Spouse of religious minister – does the
prohibition apply to the spouse of the
minister? YES. Although the Catholic priest
s celibate, the priesthood or ministry of
other denominations or religions are not.
Certainly, the mischief sought to be averted
can be perpetrated by the spouse.
3. Guardian as to disposition before Final
Accounting
o When disqualification applies – the will
must have been executed by the ward
during the effectivity of the guardianship,
which means at anytime between the
commencement of the guardianship and its
dissolution.
o What kind of guardianship covered – terms
of disqualification seem to be limited to
guardians over the property. In view,
however, of the purpose of the prohibition,
the argument that this prohibition should
apply as well to guardians over the person
is most tenable.
o Exception – a guardian who happens to be
an ascendant, descendant, brother, sister
or spouse of the ward-testator is excluded
from the prohibition. Curiously, thus
exception is not allowed in the other
paragraphs.
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4. Attesting witness or Spouse, Parents, Children
or any one claiming under such witness,
spouse, parents or children
o Essentially a reiteration of the
disqualification in Art823, but cast more in
general terms, since this article nullifies not
just legacies and devises but all
testamentary dispositions made in the
witness’ favor.
o NOTE – there is a discrepancy between
this paragraph and Art823, which allows for
an exception: i.e. if there are 3 other
competent witnesses. That exception
should be read into this paragraph.
5. Physician, surgeon, nurse, health officer or
druggist
o Scope of Prohibition – the person must
have taken care of the testator during the
latter’s final illness. “Taking Care” means
medical attendance with some regularity or
continuity that the possibility of duress or
influence exists.
o However, the pharmacist who only
happens to fill a prescription does not fall
under the interdiction.
6. Individuals, associations and corporations not
permitted by law
• Bewildering variations in the rules –
 Why do some paragraphs [pars
2 and 4] disqualify relatives but another [par5] does
not?
 Why is the exception in par3 not
applied to paragraphs 1 and 5?
 The reason is that the article is
derived from various sources – from the Old Code,
the Code of Civil Procedure and the ideas of the
Code Commission.
Art. 1028. The prohibitions mentioned in article
739, concerning donations inter vivos shall
apply to testamentary provisions.
• The Disqualification laid down by this article applies only
to TESTAMENTARY SUCCESSION
• By the provisions of this article, those are disqualified
from receiving donations under Art739 are likewise
disqualified from receiving testamentary dispositions
from the parties specified in that article.
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty
of adultery or concubinage at the time of the
donation;
(2) Those made between persons found guilty of
the same criminal offense, in consideration
thereof;
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(3) Those made to a public officer or his wife,
descedants and ascendants, by reason of his
office.
In the case referred to in No. 1, the action for
declaration of nullity may be brought by the
spouse of the donor or donee; and the guilt of the
donor and donee may be proved by
preponderance of evidence in the same action.
CASES FOR ARTICLES 1015-1028
Parish Priest v. Rigor
- Father Rigor, the parish priest of Pulilan, Bulacan, died
leaving a will which was probated by the CFI. Named as
devisees in the will were the testator's nearest relatives,
namely, his three sisters: Florencia Rigor-Escobar, Belina
Rigor-Manaloto and Nestora Rigor-Quiambao. The testator
gave a devise to his cousin, Fortunato Gamalinda.
- It may be deduced that the testator intended to devise the
44 ha. Riceland owned by him to his nearest male relative
who would become a priest, who was forbidden to sell the
ricelands, who would lose the devise if he discontinued his
studies for the priesthood, or having been ordained a priest,
he was excommunicated, and who would be obligated to
say annually twenty masses with prayers for the repose of
the souls of the testator and his parents.
- During the testate proceedings, the CFI approved the
project of partition and directed the administratrix to deliver
to the devisees their respective shares. Inasmuch as no
nearest male relative of the testator claimed the devise and
as the administratrix and the legal heirs believed that the
parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to him. The latter,
however, petitioned for delivery of the ricelands to the
church.
- The lower court, after first declaring the bequest
inoperative, later reconsidered its findings in an order, on
the ground that the testator had a grandnephew (born after
the testator's death), who was a seminarian, and directed
the administrator of the estate to deliver the ricelands to the
parish priest of Victoria as trustee.
Did the testator contemplate only his nearest male relative at
the time of his death? Or did he have in mind any of his
nearest male relatives at anytime after his death?
- The bequest refers to the testator's nearest male relative
living at the time of his death and not to any indefinite time
thereafter. "In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the
succession opens, except in case of representation, when it
is proper"
- The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to the
testator's nearest male relative at anytime after his death
would render the provisions difficult to apply and create
uncertainty as to the disposition of his estate. That could
not have been his intention.
- In 1935, when the testator died, his nearest legal heirs were
his three sisters or second-degree relatives, Mrs. Escobar,
Mrs. Manaloto and Mrs. Quiambao. Obviously, when the
testator specified his nearest male relative, he must have
had in mind his nephew or a son of his sister, who would be
his third-degree relative, or possibly a grandnephew. But
since he could not prognosticate the exact date of his death
or state with certitude what category of nearest male
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relative would be living at the time of his death, he could not
specify that his nearest male relative would be his nephew
or grandnephews (the sons of his nephew or niece) and so
he had to use the term "nearest male relative".
- Inasmuch as the testator was not survived by any nephew
who became a priest, the unavoidable conclusion is that the
bequest in question was ineffectual or inoperative.
Therefore, the administration of the ricelands by the parish
priest of Victoria, as envisaged in the will, was likewise
inoperative. It should be understood that the parish priest of
Victoria could become a trustee only when the testator's
nephew living at the time of his death, who desired to
become a priest, had not yet entered the seminary or,
having been ordained a priest, he was excommunicated.
Those two contingencies did not arise, and could not have
arisen, in this case because no nephew of the testator
manifested any intention to enter the seminary or ever
became a priest.
- This case is covered by article 956, which provides that if
"the bequest for any reason should be inoperative, it shall
be merged into the estate, except in cases of substitution
and those in which the right of accretion exists"
- This case is also covered by article 960(2), which provides
that legal succession takes place when the will "does not
dispose of all that belongs to the testator."
- There being no substitution nor accretion as to the said
ricelands, the same should be distributed among the
testator's legal heirs. The effect is as if the testator had
made no disposition as to the said ricelands.
- The Civil Code recognizes that a person may die partly
testate and partly intestate, or that there may be mixed
succession. The old rule as to the indivisibility of the
testator's will is no longer valid. Thus, if a conditional legacy
does not take effect, there will be intestate succession as to
the property covered by the said legacy
Resurrecion v. Javier
Nepomuceno v. CA
- Martin Jugo, in his will, appointed Sofia Nepomuceno as his
sole and only executor of his estate.
- The will state that Jugo was legally married to Rufina
Gomez, by who he has 2 children and that since 1962, they
have been estranged and Martin had been living with Sofia
as husband and wife.
- Martin devised to his forced heirs (Rufina and their 2
children) his entire estate, and the free portion thereof to
Sofia.
- Sofia filed a petition for the probate of the last will of Martin.
- Rufina and her children opposed.
- CFI denied probate on the ground that Martin admitted in
his will that he had been unlawfully cohabiting with Sofia.
- The CA reversed and admitted the will to probate but
declared that the devise in favor of Sofia is void.
- Sofia contends that the validity of the testamentary
provision in her favor should be assailed in another
proceeding.
Whether the probate court could validly pass upon the intrinsic
validity of the testamentary provision in favor of Sofia.
- YES. The rule that only the extrinsic validity of the will is
looked upon in probate proceedings is not absolute. For
practical considerations, the probate court is not powerless
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to pass upon certain provisions of the will even before it is
probated.
Whether Sofia can validly claim the devise made in her favor.
- NO. The prohibition in Art. 739 of the NCC is against the
making of a donation between person who are living in
adultery or concubinage. It is the donation which becomes
void. The given cannot give even assuming that the
recipient may receive.
- In this case, the wordings of the Will invalidate the legacy
because the testator admitted he was disposing the
properties to a person with whom he had been living in
concubinage.
- Art. 1028 of the NCC: The prohibitions mentioned in Art.
739, concerning donations inter vivos shall apply to
testamentary provisions.
Art. 1029. Should the testator dispose of the
whole or part of his property for prayers and
pious works for the benefit of his soul, in
general terms and without specifying its
application, the executor, with the court's
approval shall deliver one-half thereof or its
proceeds to the church or denomination to
which the testator may belong, to be used for
such prayers and pious works, and the other
half to the State, for the purposes mentioned
in Article 1013.
• REQUISITES
A. Disposition for prayers and pious works for the
benefit of the testator’s soul
B. No specification of application of the disposition
• Apportionment of the Disposition or its Proceeds
A. One-half [1/2] to the Church or denomination to
which the testator belonged
B. One-half [1/2] to the State, to be applied as
provided for under Art1013
Art. 1030. Testamentary provisions in favor of the
poor in general, without designation of
particular persons or of any community, shall
be deemed limited to the poor living in the
domicile of the testator at the time of his
death, unless it should clearly appear that his
intention was otherwise.
The designation of the persons who are to
be considered as poor and the distribution of
the property shall be made by the person
SUCCESSION REVIEWER 1ST SEM 2006- 2007

appointed by the testator for the purpose; in
default of such person, by the executor, and
should there be no executor, by the justice of
the peace, the mayor, and the municipal
treasurer, who shall decide by a majority of
votes all questions that may arise. In all these
cases, the approval of the Court of First
Instance shall be necessary.
The preceding paragraph shall apply
when the testator has disposed of his
property in favor of the poor of a definite
locality.
• The named beneficiaries here are the poor, either of a
definite locality [par3] or of no designated locality [par1].
In the latter case, the beneficiaries shall be the poor of
the testator’s domicile, unless excluded by the testator in
his will.
• Who are to determine the individual beneficiaries within
the class designated by the testator?
A. The person authorized by the testator or in his
default,
B. The executor, or in his default,
C. The administrator.
 In fact, the committee specified
in this article will have no occasion to function.
Art. 1031. A testamentary provision in favor of a
disqualified person, even though made under
the guise of an onerous contract, or made
through an intermediary, shall be void.
• Rationale – What cannot be done by direction cannot be
done by indirection. The simulation must be proved, for
this article to apply.
• Effect of simulation or circumvention – The article
provides that the disposition is void, hence ineffective
both as to the intended beneficiary and the intermediary.
The intestate heirs, to whom the property would go, have
the right to claim the nullity.
Art. 1032. The following are incapable of
succeeding by reason of unworthiness:
(1) Parents who have abandoned their
children or induced their daughters to
lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted of
an attempt against the life of the
testator, his or her spouse,
descendants, or ascendants;
(3) Any person who has accused the
testator of a crime for which the law
prescribes imprisonment for six years
or more, if the accusation has been
found groundless;
(4) Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an
officer of the law within a month, unless
the authorities have already taken
action; this prohibition shall not apply
to cases wherein, according to law,
there is no obligation to make an
accusation;
(5) Any person convicted of adultery or
concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will or to
change one already made;
(7) Any person who by the same means
prevents another from making a will, or
from revoking one already made, or who
supplants, conceals, or alters the
latter's will;
(8) Any person who falsifies or forges a
supposed will of the decedent.
• This article applies to all kinds of succession
• GROUNDS FOR UNWORTHINESS
1. Parents who have abandoned their children or
induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue
o There are 3 grounds given:
1) Abandonment of the child
2) Inducement of a daughter to
lead a corrupt or immoral life
3) Attempt against a daughter’s
virtue
o All these 3 grounds are also grounds for
disinheritance of parents or ascendants under
Art920. The same rules apply.
2. Person convicted of an attempt against the life
of the testator, his or her spouse, descendants
or ascendants
o Also a ground for disinheritance under
Art919. The same rules apply.
3. Person who accused the testator of a crime for
which the law prescribed imprisonment for 6
years or more, if the accusation has been
found to be groundless
o Also a ground for disinheritance under
Art919. The same rules apply.
4. Any heir of full age who, having knowledge of
the violent death of the testator, should fail to
report it to an officer of the law within a month,
unless the authorities have already taken
action
o One requisite of this ground for
disqualification makes this paragraph non-
operative – a legal obligation to make an

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accusation. There is no such obligation under
the present law.
o However, the Requisites of this paragraph are
– o Balane says that the better opinion is that it is
a) The heir has knowledge of
the violent death of the decedent
b) The heir is of legal age
c) The heir fails to report it to an
officer of the law within a month after
learning of it
d) The authorities have not yet
taken action
e) There is a legal obligation for
the heir to make an accusation.
5. Person convicted of adultery or concubine age
with the spouse of the testator
o Also a ground for disinheritance under
Art919. The same rules apply.
6. Any person who by fraud, violence,
intimidation or undue influence should cause
the testator to make a will or to change one
already made
o Also a ground for disinheritance under
Art919. The same rules apply.
7. Person who by the same means prevents
another from making a will, or from revoking
one already made, or who supplants,
conceals, or alters the latter’s will
8. Person who falsifies or forges a supposed will
of the decedent
• EFFECT OF UNWORTHINESS
 Unworthiness gives rise to total
disqualification, i.e. the unworthy heir is
incapacitated to succeed from the offended party by
ANY FORM OF SUCCESSION.
 Thus, unworthiness and
disinheritance have identical effects. Unworthiness
is disinheritance imposed by law.
 That unworthiness deprives the
unworthy heir even of the legitime is clear from
Article 1035.
Art. 1033. The cause of unworthiness shall be
without effect if the testator had knowledge
thereof at the time he made the will, or if,
having known of them subsequently, he
should condone them in writing.
• Restoration to Capacity – the unworthiness is set aside
and the unworthy heir restored to capacity in 2 ways:
1. A written condonation,
or
2. The execution by the
offended party of a will with knowledge of the
cause of unworthiness.
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• Question – regarding the second mode, is it enough that
the offended party execute a will with knowledge of the
existence of the cause of unworthiness?
NOT enough, the will must either institute the
unworthy heir or restore him to capacity.
• Common Grounds for Unworthiness and
Disinheritance: Conflicting Modes of Lifting
Disqualification [Articles 1033 and 922]
A.Most of the grounds for unworthiness are also
grounds for disinheritance under Art1032.
 There is no problem if the
offended party does not choose to disinherit
the offending heir, because then only the
rules of unworthiness will operate.
 Should the offended party,
however, elect to disinherit the offender, the 2
set of rules on disinheritance and
unworthiness would overlap.
 The problem then arises: HOW
IS THE DISQUALIFIED HEIR RESTORED
TO CAPACITY?
 Under the rules on
disinheritance, a subsequent reconciliation is
enough (Art922); under those on
unworthiness, either a written pardon or a
subsequent will is required.
 Supposing that there is a
reconciliation but nothing in writing, will it be
correct to conclude that the heir is restored to
capacity under the rule on disinheritance but
stays disqualified under the rule on
unworthiness?
 Balane says this seems
unacceptable because that would make the
rules on unworthiness [which is by operation
of law and is only the implied will of the
offended party] prevail over those on
disinheritance [which is his express will]
B. THUS, the most acceptable reconciliation seems to
be the following:
1. If offended party DOES NOT MAKE A
WILL subsequent to the occurrence of the
common cause – apply article 1033,
unworthiness sets in ipso facto and written
condonation is necessary to restore capacity.
2. If offended party MAKES A WILL subsequent to
the occurrence of the common cause –
a. If he knew of the cause
i. If he
disinherits – art922, disinheritance is
ineffective.
ii. If he
institutes or pardons the offender –
offender restored to capacity.
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iii. If will
is silent – this is disputed. But the
better opinion is that the unworthiness
stays.
b. If he did not know of the cause –
unworthiness stays
Art. 1034. In order to judge the capacity of the
heir, devisee or legatee, his qualification at
the time of the death of the decedent shall be
the criterion.
In cases falling under Nos. 2, 3, or 5 of
Article 1032, it shall be necessary to wait until
final judgment is rendered, and in the case
falling under No. 4, the expiration of the
month allowed for the report.
If the institution, devise or legacy should
be conditional, the time of the compliance
with the condition shall also be considered.
• When Capacity is to be Determined
A. General Rule – the time of the decedent’s death
o Because that is when successional rights
vest.
B. If institution is subject to suspensive condition –
1. Time of the decedent’s
death AND
2. Time of the happening of the condition
C. If final judgment is a requisite of unworthiness – at
the time of final judgment.
Art. 1035. If the person excluded from the
inheritance by reason of incapacity should be
a child or descendant of the decedent and
should have children or descendants, the
latter shall acquire his right to the legitime.
The person so excluded shall not enjoy
the usufruct and administration of the
property thus inherited by his children.
• Representation in Unworthiness
 Unworthiness is one of the 3
occasions for representation to operate.
• Extent of Representation
 Representation in unworthiness
[as also in predecease and disinheritance] extends
not only to the legitime but also to whatever portion
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
in intestate succession the person represented may
have been entitled to.
 The first paragraph of the article
should not be taken to imply that representation is
confined to the legitime.
• Representation in the Collateral Line
 If the unworthy heir is a brother
or sister, his children [nephews and nieces of the
decedent] will represent under art972 par2.
• Second Paragraph – Articles 225-226 of the Family Code
should be read together with the second paragraph of
this article –
A. As to usufruct – the prohibition in this provision
has become unnecessary because of Art226 par2
of the Family Code.
B. As to administration – the disqualification remains,
and this right shall be exercised either by a
judicially appointed guardian or those vested by
law with substitute parental authority under Art216
of the Family Code.
Art. 1036. Alienations of hereditary property, and
acts of administration performed by the
excluded heir, before the judicial order of
exclusion, are valid as to the third persons
who acted in good faith; but the co-heirs shall
have a right to recover damages from the
disqualified heir.
• Good Faith of Transferee as Determining Factor of
Validity
 The validity of the alienation is
determined by the good faith or bad faith of the
transferee, not of the transferor [the excluded heir]
 For the transferee to be in good
faith, he must have acquired the thing for value and
without knowledge of the defect of the transferor’s
title.
 Thus, a donee cannot claim the
benefit of this provision, since he did not acquire for
value.
• Note that in cases of valid alienations by the disqualified
heir, the rightful heirs are not without a remedy: they may
go after the disqualified heir for damages.
Art. 1037. The unworthy heir who is excluded
from the succession has a right to demand
indemnity or any expenses incurred in the
preservation of the hereditary property, and
to enforce such credits as he may have
against the estate.
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• The right of reimbursement granted by this article to the
excluded heir is irrespective of his bad faith because the
expenses referred to in this article are necessary
expenses which have to be reimbursed even to a
possessor in bad faith [under Articles 443 and 546 par1]
Art. 1038. Any person incapable of succession,
who, disregarding the prohibition stated in
the preceding articles, entered into the
possession of the hereditary property, shall
be obliged to return it together it its
accessions.
He shall be liable for all the fruits and
rents he may have received, or could have
received through the exercise of due
diligence.
• The disqualified heir, referred to in this article, who took
possession of the hereditary property, is a possessor in
bad faith, because he took possession “disregarding the
provision stated in the preceding articles.”
• Hence, the law applies to him the rules on possession in
bad faith:
1. The obligation to return, with accessions
2. Liability for fruits which were received and could
have been received.
• These are the same rules laid down in Art549.
• Period for action to recover – Under Art 1040, 5 years.
Art. 1039. Capacity to succeed is governed by the
law of the nation of the decedent.
• National law of decedent governs capacity – note that it
is the national law of the DECENDENT and not that of
the heir that governs the capacity to succeed.
• This is the same principle as Art16 par2.
Art. 16. Real property as well as personal
property is subject to the law of the country where
it is stipulated.
However, intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law
of the person whose succession is under
consideration, whatever may be the nature of the
property and regardless of the country wherein
said property may be found.
Art. 1040. The action for a declaration of
incapacity and for the recovery of the
inheritance, devise or legacy shall be brought
within five years from the time the
disqualified person took possession thereof.
It may be brought by any one who may have
an interest in the succession.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
•5 years prescriptive period – applies both to the
declaration of incapacity of the heir and the recovery of
the inheritance or portion thereof wrongfully possessed
by the disqualified heir.
• In effect, this is a special prescriptive period for this
action. It is an exception to the prescriptive periods for
recovery of movables [8years] and of immovables
[30years] laid down respectively in Articles 1140 and
1141.
SECTION 3.
ACCEPTANCE AND REPUDIATION
OF THE INHERITANCE
Art. 1041. The acceptance or repudiation of the
inheritance is an act which is purely voluntary
and free.
• Acceptance of Inheritance a Free Act
 The acceptance of property
through succession – whether in the form of a
legitime, testamentary succession or intestacy – is,
like the acceptance of a donation, essentially free
and voluntary.
 No one can be required to
accept a benefit: Non potest liberalitas nolenti
adquiri.
• The following articles lay down the requirements for
acceptance and repudiation. It should be noted that the
rules for acceptance are much more LIBERAL than those
for repudiation. This is because acceptance is beneficial
whereas repudiation is prejudicial to the successor.
Art. 1042. The effects of the acceptance or
repudiation shall always retroact to the
moment of the death of the decedent.
• This has the same underlying philosophy as Art777. The
moment of death is the time succession vests.
• RETROACTIVITY –
A. Of Acceptance – the successor will be deemed to
have owned and possessed the property from the
precise moment of the decedent’s death. This rule
has consequences with respect to acquisitive
prescription, capacity to succeed, representation,
etc.
B. Of Renunciation – the renouncer is deemed never
to have owned or possessed the property.
Consequently, the substitute, co-heir or intestate
heir who gets the property in default of the
renouncer is deemed to have owned and
possessed it from the moment of the decedent’s
death.
C. Conditional Institutions – the principle of
retroactivity is not overridden even if the institution
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is subject to a suspensive condition. Upon the
happening of the condition, the property passes to
the heir but with retroactive effect. This is the
same principle enunciated in conditional
obligations [Art1187]. Similarly, if the condition
does not happen, the property goes to the
appropriate successor, with the same retroactive
effect.
• However, for conditional institutions, the provisions of
Art880 should be complied with, to wit, the property
should be placed under administration during the interim.
Art. 1043. No person may accept or repudiate an
inheritance unless he is certain of the death
of the person from whom he is to inherit, and
of his right to the inheritance.
• Acceptance or renunciation must be made knowingly.
Unless the successor has knowledge of the two things
mentioned in this article, his acceptance or renunciation
is not effective.
Art. 1044. Any person having the free disposal of
his property may accept or repudiate an
inheritance.
Any inheritance left to minors or
incapacitated persons may be accepted by
their parents or guardians. Parents or
guardians may repudiate the inheritance left
to their wards only by judicial authorization.
The right to accept an inheritance left to
the poor shall belong to the persons
designated by the testator to determine the
beneficiaries and distribute the property, or in
their default, to those mentioned in Article
1030.
• Requirement for Personal Acceptance or Renunciation
 Capacity to act is required for
personal acceptance or renunciation.
• Acceptance or Renunciation on behalf of minors or other
incapacitated parties
 Minors and other capacitated
parties may accept or renounce only through their
legal representatives. However, for renunciation
there is the added requirement of court approval.
The rules for renunciation are stricter than those for
acceptance.
• Acceptance of Testamentary Grants to the Poor
 The persons empowered in
Art1030 to select the recipients of testamentary
grants to the poor in general are likewise
empowered to accept on their behalf.
 Note that:
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
1. These authorized individuals can only accept,
not reject the grant.
2. The persons selected as qualified recipients
are, for their own part, free to accept or
renounce the benefit.
Art. 1045. The lawful representatives of
corporations, associations, institutions and
entities qualified to acquire property may
accept any inheritance left to the latter, but in
order to repudiate it, the approval of the court
shall be necessary.
Art. 1046. Public official establishments can
neither accept nor repudiate an inheritance
without the approval of the government.
• These provisions lay down rules similar to those
concerning acceptance or renunciation on behalf of
minors and incompetents. The legal representatives may
accept or renounce the testamentary grant on behalf of
the entity represented, but for renunciation, court
approval is, additionally required.
Art. 1047. A married woman of age may repudiate
an inheritance without the consent of her
husband.
• Acceptance or renunciation by a Married person
 There is no suggestion in this
article that a married man of age does not have the
capacity to renounce without his wife’s consent.
 The rule is more accurately
worded as follows – A married person of age and
not incapacitated for any reason may accept or
renounce an inheritance without his or her spouse’s
consent.
Art. 1048. Deaf-mutes who can read and write
may accept or repudiate the inheritance
personally or through an agent. Should they
not be able to read and write, the inheritance
shall be accepted by their guardians. These
guardians may repudiate the same with
judicial approval.
• Capacity of Deaf-mute to accept or renounce – this
article must be correlated with Art1327, which provides:
Art. 1327. The following cannot give consent to a
contract:
(1) Unemancipated minors;
(2) Insane or demented persons, and deaf-mutes
who do not know how to write.
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• Thus, a deaf-mute who can read and write has
contractual capacity, and can accept or renounce on his
own behalf.
• However, an illiterate deaf-mute is incompetent and the
rules on acceptance and renunciation through a
representative apply. [Art1044]
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a
public or private document.
A tacit acceptance is one resulting from
acts by which the intention to accept is
necessarily implied, or which one would have
no right to do except in the capacity of an
heir.
Acts of mere preservation or provisional
administration do not imply an acceptance of
the inheritance if, through such acts, the title
or capacity of an heir has not been assumed.
• KINDS OF ACCEPTANCE
A. Express
1. Public Documents or
2. Private Writing
B. Tacit
C. Implied [Art1057]
Art. 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his
right to a stranger, or to his co-heirs, or
to any of them;
(2) If the heir renounces the same, even
though gratuitously, for the benefit of
one or more of his co-heirs;
(3) If he renounces it for a price in favor of
all his co-heirs indiscriminately; but if
this renunciation should be gratuitous,
and the co-heirs in whose favor it is
made are those upon whom the portion
renounced should devolve by virtue of
accretion, the inheritance shall not be
deemed as accepted.
• TACIT ACCEPTANCE
 Inferred from acts revealing an
intent to accept. In general, a tacit acceptance is
inferred from acts of ownership performed by the
heir over the property.
 The enumeration in this article
is illustrative but not exclusive.
• Instances of Tacit Acceptance
A. Par1 – Onerous or gratuitous conveyance in favor
of one, some or all of his co-heirs or to a stranger.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
This is an act of ownership, which necessarily
implies that the heir has accepted the inheritance.
B. Par2 – Gratuitous renunciation in favor of one or
some of his co-heirs. This is not in fact a
renunciation but a conveyance in favor of the co-
heirs specified. It partakes of the nature of
donation and therefore must conform to the
prescribed form of donations under Arts 748-749.
 If the gratuitous “renunciation” is in favor of
ALL the heirs but in proportions
DIFFERENT from those in which they
would receive by accretion, it is still a
conveyance and must be treated as a tacit
acceptance.
 A fortiori, if the renunciation in favor of one
or some of the co-heirs is for an onerous
consideration, there is an acceptance.
C. Par3 – Onerous renunciation in favor of all the co-
heirs indiscriminately; this is not in fact a
renunciation but a sale f his portion and therefore
constitutes a tacit acceptance.
 Gratuitous renunciation in favor of the co-
heirs indiscriminately – this is a true
renunciation and cannot be treated as a
tacit acceptance. Indiscriminate
renunciation means a renouncement,
gratuitously made, in favor of all the co-
heirs who would get the renounced portion
by virtue of accretion.
 The same rule applies even if the part
renounced in this manner is the legitime,
notwithstanding that there is no accretion in
the legitime, as long as the renunciation is
indiscriminate.
Art. 1051. The repudiation of an inheritance shall
be made in a public or authentic instrument,
or by petition presented to the court having
jurisdiction over the testamentary or intestate
proceedings.
• FORMS OF RENUNCIATION
A. Public or Authentic [genuine] Instrument
B. Petition filed in the Settlement Proceedings
• Form of renunciation stricter – the law has stricter
requisites for renunciation, since it is not beneficial to the
heir.
Art. 1052. If the heir repudiates the inheritance to
the prejudice of his own creditors, the latter
may petition the court to authorize them to
accept it in the name of the heir.
The acceptance shall benefit the creditors
only to an extent sufficient to cover the
amount of their credits. The excess, should
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there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the
persons to whom, in accordance with the
rules established in this Code, it may belong.
• This is an instance of accion pauliana, which is the right
given to creditors to impugn or set aside contracts,
transactions or dispositions of their debtors which will
prejudice or defraud them.
• The same principle is expressed in Art1177 and Art1313
of the Civil Code.
Art. 1177. The creditors, after having pursued the
property in possession of the debtor to satisfy
their claims, may exercise all the rights and
bring all the actions of the latter for the same
purpose, save those which are inherent in his
person; they may also impugn the acts which
the debtor may have done to defraud them.
Art. 1313. Creditors are protected in cases of
contracts intended to defraud them.
• The right of the creditor to accept the inheritance in the
name of the debtor extends only to the amount or value
necessary to satisfy the credit. Any amount in excess of
that may be validly renounced by the debtor-heir.
Art. 1053. If the heir should die without having
accepted or repudiated the inheritance his
right shall be transmitted to his heirs.
• This rule is a consequence of the principle that the rieght
of succession vests at the moment of death. Therefore,
the right of the heir who dies before accepting or
renouncing is already vested and is transmitted to the
heir’s heirs.
• The right to the inheritance itself forms part of the
inheritance of the heir and therefore, the heir of the heir
can exercise the right granted by this article only if he
[the heir’s heir] accepts his own predecessor’s
inheritance. If he renounces, obviously he cannot
exercise this right.
Art. 1054. Should there be several heirs called to
the inheritance, some of them may accept and
the others may repudiate it.
• If there are several heirs, their right to accept or right
corresponds to the aliquot share to which they are
entitled.
• Thus, if X dies and Y, his heir, himself dies before
accepting or renouncing the inheritance, leaving A, B and
C as his own heirs – A, B and C each has the right to
accept or renounce his corresponding 1/3 interest in
whatever Y was entitled to inherit from X.
• Question – should one or more of the heirs renounce, to
whom will the repudiated portion go? To the ones who
accept, by accretion? Or to the intestate heirs of the
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
decedent whose inheritance the predecessor of the heirs
was unable to accept or renounce?
Art. 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato,
repudiates the inheritance in his capacity as a
testamentary heir, he is understood to have
repudiated it in both capacities.
Should he repudiate it as an intestate heir,
without knowledge of his being a
testamentary heir, he may still accept it in the
latter capacity.
• This article governs the situation when a person is BOTH
a testamentary heir [or legatee or devisee and an
intestate heir], with respect to the same inheritance.
• RULES
A. If he renounces as testamentary heir [or legatee
or devisee] – he is deemed to have renounced as
intestate heir as well.
B. If he renounces as intestate heir without
knowledge of his being a testamentary heir [or
legatee or devisee] – he is NOT deemed to have
renounced as testamentary heir and may
therefore accept or renounce separately in the
latter capacity.
• Rationale – the testamentary disposition is the express
will of the testator, whereas intestacy is only his implied
will. One who renounces the express will is deemed to
have renounced the implied also, but not the other way
around.
• Question – supposing the heir renounces as intestate
heir with knowledge of his being testamentary heir, may
he accept in the latter capacity? Balane says YES, in
light of the rationale of the rule.
• NON-APPLICABILITY OF RULE TO LEGITIME
 In view of the rationale of the
rule, should the heir be simultaneously a compulsory
heir and a testamentary heir, he can accept either or
both.
 The legitime passes not
because of any implied will or wish of the decedent
but by strict operation of law, irrespective of the
decedent’s wishes. Thus, the term ab intestate in
this article refers solely to intestate succession.
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 To the same effect is the rule
laid down in Art955 par2, regarding a person who is
simultaneously a compulsory heir and a legatee or
devisee.
Art. 1056. The acceptance or repudiation of an
inheritance, once made, is irrevocable, and
cannot be impugned, except when it was
made through any of the causes that vitiate
consent, or when an unknown will appears.
• EXCEPTIONS TO THE RULE OF FINALITY OF
ACCEPTANCE OR RENUNCIATION
A. Vitiated Consent – the factors are:
1. Violence
2. Intimidation
3. Undue Influence
4. Mistake
5. Fraud
B. Appearance of an unknown will – this applies if
the newly-discovered will is subsequent to any will
which may have formed the basis for the
acceptance or renouncement. The new will
[assuming it is valid and admitted to probate]
reopens the whole affair and will call for a new
acceptance or renunciation.
Art. 1057. Within thirty days after the court has
issued an order for the distribution of the
estate in accordance with the Rules of Court,
the heirs, devisees and legatees shall signify
to the court having jurisdiction whether they
accept or repudiate the inheritance.
If they do not do so within that time, they
are deemed to have accepted the inheritance.
• This is IMPLIED ACCEPTANCE – the failure to signify
the acceptance or renunciation within the 30-day period
specified by this article
• Qui tacet consentire videtur – silence means yes.
CASES FOR ARTICLES 995-1002
Avelino v. CA
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
- The petitioner Maria Socorro is a daughter of Antonio
Avelino, Sr. and Angelina Avelino.
- The private respondents are Angelina, Maria’s siblings, and
Sharon, the 2nd wife of Antonio, Sr.
- Maria filed a petition with the RTC-QC for issuance of
letters of administration of the estate of Antonio, Sr., who
died intestate. She asked that she be appointed
administrator of the estate.
- The private respondents filed an opposition by filing a
motion to convert the petition for issuance of letters of
administration to an action for judicial partition. Maria duly
opposed.
- RTC granted the motion of the private respondents. A
subsequent MR by Maria was denied.
- Hence, this petition alleging that the judge committed grave
abuse in granting the motion.
WON the RTC Judge was in error in granting the motion and
converting the petition for issuance of letters of administration
to an action for judicial partition.
- NO. When a person dies intestate, or if testate, failed to
name an executor in his will or the executor so named is
incompetent, or refuses the trust, or fails to furnish the bond
required, the general rule is that the estate shall be
judicially administered and the court shall appoint a
qualified administrator.
- The exception to the above rule is found in Secs. 1 and 2 of
Rule 74 , which does not require the appointment of an
administrator in cases of (1) extrajudicial settlement by
agreement between the heirs, and (2) summary settlement
of estates of small value.
- Sec. 1 of Rule 74 allows the heirs to divide the estate
among themselves without need of delay and risks of being
dissipated.
- When a person dies without leaving pending obligations, his
heirs, are not required to submit the property for judicial
administration, nor apply for the appointment of an
administrator by the court.
Nazareno v. CA
- The case involves the sale of Maximino SR and his wife of 6
lots to one of their daughters, Natividad, who later on sold
the same to her brother, Maximino Jr.
- In one of the said lots was where respondent in this case
Romeo and his wife and one of the petitioners Maximino Jr
are residing. Upon knowing of Maximino Jr’s ownership over
the said land, the spouses locked him out of the house.
- Romeo then filed this present case on behalf of the estate of
Maximino Sr. for the annulment of the sale of the lot in
question.
- Natividad eventually sold the lots to an innocent purchaser
for value.
W/N the sale was valid.
- SC held that it was valid because:
- 1. The lone testimony of Romeo that the said lots were sold
to Natividad for no consideration was found to be credible
by the TC and CA.
- 2. The fact that the document was notarized is not a
guarantee of the validity of its contents.
- 3. The judgment in a previous case vesting ownership in
Maximino Jr. and which was filed by Romeo and his wife
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does not bind the estate of Maximino Sr. in this case which
also has a right to recover properties which were wrongfully
disposed.
- 4. The TC and CA found that the Nazareno spouses
transferredtheir properties to their children by fictitious sales
in order to avoid the payment of inheritance taxes.
- 5. Any void contract may be questioned by any party
affected by it; hence, even if the estate of Maximino Sr.
alone contests the validity of the sale, the outcome of the
suit will bind the estate of his wife as if no sale took place at
all.
- 6. It cannot be denied that the spouses intended to give the
6 lots to Natividad as the latter is the only female and
unmarried member of the family. Thus, since an implied
trust was created, the lots are therefore subject to collation.
- Every compulsory heir who succeeds with other compulsory
heirs must bring into the mass of the estate any property or
right which he may have received from the decedent, or any
other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the
account of the partition.
SECTION 4. –
EXECUTORS AND ADMINISTRATORS
Art. 1058. All matters relating to the appointment,
powers and duties of executors and
administrators and concerning the
administration of estates of deceased
persons shall be governed by the Rules of
Court.
• With reference to Rules 78-90 of the Rules of Court.
Art. 1059. If the assets of the estate of a decedent
which can be applied to the payment of debts
are not sufficient for that purpose, the
provisions of Articles 2239 to 2251 on
Preference of Credits shall be observed,
provided that the expenses referred to in
Article 2244, No. 8, shall be those involved in
the administration of the decedent's estate.
• In relation to Articles 2239-2251 and 2244
Art. 1060. A corporation or association authorized
to conduct the business of a trust company in
the Philippines may be appointed as an
executor, administrator, guardian of an
estate, or trustee, in like manner as an
individual; but it shall not be appointed
guardian of the person of a ward.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
• Rule 78 of the RoC governs the issuance of letters
testamentary and of administration and should be read
together with this article.
SECTION 5. –
COLLATION
• THREE MEANINGS OF THE TERM “COLLATION” AS
USED IN THE FF ARTICLES:
1. Collation as
COMPUTATION – [add]
o This is a
simple accounting or arithmetical process,
whereby the value of all donations inter
vivos made by the decedent is added to his
available assets in order to arrive at the
value of the net hereditary estate.
o Article 908
2. Collation as
IMPUTATION – [subtract]
o This is the process by which donations
inter vivos made by the decedent are
correspondingly charged either to the
donee’s legitime or against the disposable
portion.
o Articles 909 and 910
3. Collation as RETURN
–
o This takes place when a donation inter
vivos is found to be inofficious [i.e. exceeds
the disposable portion] and so much of its
value as is inofficious is returned to the
decedent’s estate to satisfy the legitimes.
o Articles 909 and 910 also provide for this.
Art. 1061. Every compulsory heir, who succeeds
with other compulsory heirs, must bring into
the mass of the estate any property or right
which he may have received from the
decedent, during the lifetime of the latter, by
way of donation, or any other gratuitous title,
in order that it may be computed in the
determination of the legitime of each heir, and
in the account of the partition.
• This article refers to the COMPUTATION of all donations
inter vivos made by the decedent, for the purpose of
determining the value of the net estate.
 This is exactly the same thing
that is referred to in Art908 par2. The process is
purely arithmetical, and is merely paper
computation.
• What Should be Included in the Computation
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 ALL donations inter vivos –
whether made to compulsory heirs or to strangers,
should be included in the computation of the net
hereditary estate. This is the 3rd step in the process
of computing the net hereditary estate under Art908.
• Value to be Computed
 Only the value of the property
donated AT THE TIME THE DONATION WAS
MADE is to be computed since in donations
ownership transfers at the time the donation is
perfected.
 Thus, any subsequent increase
in value is for the donee’s benefit, and any decrease
is for his account.
• Purpose of the Article is to determine the amount of the
net estate so as to ensure that the legitimes are not
impaired.
Art. 1062. Collation shall not take place among
compulsory heirs if the donor should have so
expressly provided, or if the donee should
repudiate the inheritance, unless the donation
should be reduced as inofficious.
• Collation in the sense of IMPUTATION
 That donations inter vivos made
by the decedent to a compulsory heir are, as a
general rule, imputed to or charged against the
heir’s legitime.
• RULES ON IMPUTATION OF
DONATIONS INTER VIVOS:
A. Donations inter vivos to compulsory heirs
o GR: Should be imputed to the heir’s
legitime and is considered as an advance
on the legitime.
o EXCEPTIONS –
1. If the donor provides in
the Deed of Donation otherwise
2. If the donee renounces
the inheritance, because in this case
the donee gives up his status as a
compulsory heir and therefore cannot
be considered as one.
o In case either exception applies, the
donation will have to be imputed to the
FREE PORTION.
o Question – supposing the compulsory
heir received a donation inter vivos from
the decedent but the value of the donation
exceeds the donee’s legitime? The
donation will be imputed to the donee’s
legitime to the extent of the lefitime’s value
and the excess, to the free portion.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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B. Donations inter vivos to strangers
o Imputed to the free portion
C. Instances when donations inter vivos are to be
imputed to the FREE PORTION
1. When made to
strangers
2. When made to
compulsory heirs, and the donor so
provides that it will be imputed to the free
portion
3. When made to
compulsory heirs who renounce the
inheritance
4. When in excess of the
compulsory heir’s legitime, as to the
excess.
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.
• Collation in the sense of IMPUTATION.
• This article applies to Donations Mortis Cause [the
previous article applies to donations inter vivos].
Therefore, here the testamentary disposition is as a
general rule, not deemed as an advance on the legitime.
• RULE ON TESTAMENTARY DISPOSITIONS TO
COMPULSORY HEIRS
 GR: they should NOT be
imputed to the legitime but to the free portion.
Hence, the compulsory heir receives the
testamentary disposition in addition to his legitime.
 EXCEPTION: if the testator
provides otherwise. Then the testamentary
disposition in favor of the heir WILL be MERGED
with his legitime. That will make the disposition
illusory.
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.
• Collation in the sense of IMPUTATION
• This article applies to 2 instances:
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1. When the
grandchildren of the decedent inheriting by
representation concurrently with children of the
decedent [uncles and aunts of the
grandchildren] who are inheriting in their own
right, or
2. The grandchildren
inherit by representation with other
grandchildren [cousins of the grandchildren].
• What the Grandchildren have to Collate or Impute to the
Legitime
A. Whatever the parent whom they are representing
would have been obliged to collate; and
B. Whatever they themselves have received from the
grandparent by gratuitous title, subject to the
same rules and exceptions in Art1062.
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.
• Collation in the sense of IMPUTATION.
• A person should not collate what his parent gave to his
child since he is not the recipient of the conveyance.
• Against what part of the estate the conveyance is
imputable – the donation to the grandchild should be
imputed to the FREE PORTION, since the donation is to
a stranger.
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.
• Collation in the sense of IMPUTATION
• RULES ON DONATIONS TO THE SPOUSE
OF THE CHILD
A. Donations made by a person to his son-in-law or
daughter-in-law are SEPARATE property of the
donee and should not be imputed to the legitime
of the donor’s child [the donee’s spouse]. The
donation is one made to a stranger.
B. If the donation is made to the spouse JOINTLY,
one-half belongs to the donor’s child and should
be treated in accordance with Art1062 and the
other half is the property of the donor’s son or
daughter-in-law and should be treated as a
donation to a stranger.
o This presumption of equality of aliquot
shares [as to the ½ division between
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
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spouses] will yield to a different designation
by the donor.
• These rules are consistent with the Family Code –
A. In ACP – Article 92 par. 1
Art. 92. The following shall be excluded from
the community property:
(1) Property acquired during the marriage
by gratuitous title by either spouse, and
the fruits as well as the income thereof,
if any, unless it is expressly provided by
the donor, testator or grantor that they
shall form part of the community
property;
B. In CPG – Art109 (2) and Article 113.
Art. 109. The following shall be the exclusive
property of each spouse:
(2) That which each acquires during the
marriage by gratuitous title;
Art. 113. Property donated or left by will to the
spouses, jointly and with designation of
determinate shares, shall pertain to the
donee-spouses as his or her own exclusive
property, and in the absence of designation,
share and share alike, without prejudice to
the right of accretion when proper.
Art. 1067. Expenses for support, education,
medical attendance, even in extraordinary
illness, apprenticeship, ordinary equipment,
or customary gifts are not subject to
collation.
• Collation in the sense of COMPUTATION [add].
• The expenses mentioned should not even be included in
the computation of the decedent’s estate. This is in effect
a qualification of or an exception to the rule in Art1061.
The reason is that it would be extremely impractical or
impossible to make an accounting of all these items.
• Justice Hofilena says these are not really donations but
expenses. According to Tolentino, educational expenses
in the elementary and high school levels are considered
as expenses and not subject to collation, but higher
levels of education should be collated.
• “Support” in this article has a restrictive meaning, it
DOES NOT include expenses for the recipient’s
professional, vocational or other career because these
are items governed by Art1068.
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
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lived in the house and company of his
parents shall be deducted therefrom.
• Collation in the sense of IMPUTATION
• This article states that as a general rule:
o The expenses incurred by the parents for the child’s
professional, vocational or other career [i.e. courses
beyond the secondary level] are an exception to the
rule laid down in Art1062.
o Hence, these expenses, if not inofficious, although
donations, should NOT be charged against the
recipient’s legitime but against the FREE PORTION,
unless the parents provide otherwise.
• Contrary Provision by parents -
o Should the parents provide otherwise, the child is
entitled under this article to deduct from the said
amount the sum corresponding to what his parents
would have spent on him had he stayed at home
and loafed.
Art. 1069. Any sums paid by a parent in
satisfaction of the debts of his children,
election expenses, fines, and similar
expenses shall be brought to collation.
• Collation in the sense of IMPUTATION
• The items under this article constitute donations by the
parent to the child and therefore should be treated like
other donations to compulsory heirs under art1062.
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 one-tenth
of the sum which is disposable by will.
• This article applies only to wedding gifts given by parents
or ascendants to children or descendants.
• Scope and Operation of this Article –
A. The article covers only wedding gifts consisting of
jewelry, clothing and wedding outfit. According to
Manresa, outfit includes the items necessary for
an individual’s personal use. It does not include
other property, whether real or personal, that
would be governed by Art1062.
B. Literally construed, this article seems to state that
the value of such wedding gifts cannot go beyond
1/10 of the free portion of the donor’s estate. Any
excess will be considered inofficious and should
be returned in the same manner and at the same
time as other inofficious donations. It further
seems that as o the allowable 1/10, this is to be
imputed to the free portion.
Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances &
Ryan Quan 
1ST SEM 2006- 2007
o The question is why should the gift be
reduced as inofficious just because it
exceeds 1/10 of the free portion?
o SO, Manresa interprets the article to
mean that the gift will be imputed to the
free portion to the extent of 1/10 of the free
portion. Beyond that value, the excess will
be imputable to the recipient’s legitime.
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.
• Collation in 2 senses: COMPUTATION & IMPUTATION
• What value is to be computed and imputed:
o Only the value of the thing donated at the
time the donation was made should be considered
in the computation of the donor’s estate.
o Similarly, only the thing’s value at the
time the donation was made should be impited
whether to the legitime or to the free portion.
• Reason – any appreciation or depreciation of the thing
after that time should be for the donee’s account, since
the donation transfers ownership to him.
Art. 1072. In the collation of a donation made by
both parents, one-half shall be brought to the
inheritance of the father, and the other half, to
that of the mother. That given by one alone
shall be brought to collation in his or her
inheritance.
• Collation in 2 senses: COMPUTATION & IMPUTATION
• JOINT DONATIONS
 The 1st sentence of this article
presupposes either a regime of ACP or of CPG
between the donor spouses. A joint donation by
them will be treated, upon dissolution of the property
regime, as pertaining in equal shares to the estate of
each.
• DONATIONS BY ONE PARENT ALONE
 Such a donation will be of
separately-owned property and should be treated as
such.
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SUCCESSION REVIEWER
Art. 1073. The donee's share of the estate shall be
reduced by an amount equal to that already
received by him; and his co-heirs shall
receive an equivalent, as much as possible, in
property of the same nature, class and
quality.
• Collation in the sense of IMPUTATION
• This article requires not only equivalence in amount, but
as far as possible, also in the kind of property received.
This of course will yield to a different agreement among
the heirs.
Art. 1074. Should the provisions of the preceding
article be impracticable, if the property
donated was immovable, the co-heirs shall be
entitled to receive its equivalent in cash or
securities, at the rate of quotation; and
should there be neither cash or marketable
securities in the estate, so much of the other
property as may be necessary shall be sold at
public auction.
If the property donated was movable, the
co-heirs shall only have a right to select an
equivalent of other personal property of the
inheritance at its just price.
• This article provides for the closes analogue to strict
equivalence, in case there are not enough of the same
things to distribute among all.
• Again, this will yield to a contrary agreement among the
heirs.
Art. 1075. The fruits and interest of the property
subject to collation shall not pertain to the
estate except from the day on which the
succession is opened.
For the purpose of ascertaining their
amount, the fruits and interest of the property
of the estate of the same kind and quality as
that subject to collation shall be made the
standard of assessment.
• Collation in the sense of RETURN
• Rationale
 If any donation turns out to be
inofficious, then the obligation to return it to the
estate arises as of the time the succession vests,
which is the time of the decedent’s death, because it
is from that time the compulsory heir’s right to the
inheritance becomes absolute. From that time
therefore the compulsory heir is entitled to the fruits.
• Extent of Right to Fruits
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1ST SEM 2006- 2007
 The entirety of the fruits and
interests shall pertain to the compulsory heir, only if
the donation is TOTALLY inofficious.
 If the donation is only partially
inofficious, the right to the fruits and interests shall
be PRORATED between the compulsory heir and
the donee, in proportion to their respective interests
over the property.
Art. 1076. The co-heirs are bound to reimburse to
the donee the necessary expenses which he
has incurred for the preservation of the
property donated to him, though they may not
have augmented its value.
The donee who collates in kind an
immovable which has been given to him must
be reimbursed by his co-heirs for the
improvements which have increased the
value of the property, and which exist at the
time the partition if effected.
As to works made on the estate for the
mere pleasure of the donee, no
reimbursement is due him for them; he has,
however, the right to remove them, if he can
do so without injuring the estate.
• Collation in the sense of RETURN
• The rules in this article govern necessary [par1], useful
[par2] and ornamental [par3] expenses incurred by the
donee who is now obliged to return.
• TOTAL OR PARTIAL RETURN
 The extent of the application of
the rules in this article depends on the extent of the
obligation to return, thus:
1. If the thing has to be returned in its ENTIRETY
because the donation is totally inofficious –
a. Necessary expenses – reimbursement
must be to the full extent of the expenses
incurred. This is in relation to Art546
par1:
Art. 546. Necessary expenses shall be
refunded to every possessor; but
only the possessor in good faith
may retain the thing until he has
been reimbursed therefor.
b. Useful expenses – reimbursement must
be to the full extent provided that the
improvement is still in existence. This is
in relation to Art546 par2:
Useful expenses shall be refunded
only to the possessor in good faith
with the same right of retention, the
person who has defeated him in the
possession having the option of
refunding the amount of the expenses
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SUCCESSION REVIEWER
or of paying the increase in value
which the thing may have acquired by
reason thereof.
c. Ornamental expenses – NO
reimbursement demandable, but the right
to removal is granted if no injury to the
estate will be cause. This is in relation to
Article 548:
Art. 548. Expenses for pure luxury or
mere pleasure shall not be refunded
to the possessor in good faith; but
he may remove the ornaments with
which he has embellished the
principal thing if it suffers no injury
thereby, and if his successor in the
possession does not prefer to refund
the amount expended.
2. If the thing has to be returned only in PART
because the donation is only partially inofficious
a. Necessary and useful expenses – the
reimbursement is also partial, in
proportion to the value to be returned.
b. Ornamental expenses – the same rule as
in total return, unless the property is
physically divided and the ornament
happens to be located in the portion
assigned to the donee, in which case he
will have all the rights of ownership.
• Confusion in terminology – the situation treated in this
article is really a case of reduction of inofficious
donations and the rules set forth in this article really
belong in the provisions on inofficious donations in
Articles 910, 910 and 911. The confusion would have
been avoided if the Code had not insisted on using the
term collation so variedly.
Art. 1077. Should any question arise among the
co-heirs upon the obligation to bring to
collation or as to the things which are subject
to collation, the distribution of the estate shall
not be interrupted for this reason, provided
adequate security is given.
• The division and distribution of the estate can be made
partially, should there be controversy as to the inclusion
of certain items in the computation of the estate’s value
or the imputation of the heirs’ shares.
• The distribution can proceed on the items that are not
controverted.
CASES FOR ARTICLES 1058-1077
Zaragoza v. CA
- Flavio Zaragoza died intestate leaving four children: Gloria,
Zacariaz, Florentino and Alberta.
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- Alberta Zaragoza Morgan, the youngest of the siblings, filed
an action for the delivery of her inheritance shares namely
Lots 943 and 871.
- According to Alberta, their father already partitioned his
estate while he was still living and was able to convey these
parcels of land to his three children through Deeds of Sale
although, the contracts were made without consideration.
- Unfortunately, Alberta's share could not yet be conveyed to
her because her marriage with an American, converting to
her to an American citizen, disqualified her to own lands, the
only exception being those acquired through succession.
Alberta now contends that it was the intention to give to her
Lots 943 and 871 in accordance with the partition earlier
executed Florentino Zaragoza and his spouse, as the
respondents, denied that there was any partitioning of the
estate of Flavio during his lifetime.
- In fact, Lot 871 is still in the name of Flavio and that Lot 973
has already been sold to Florentino by the decedent for a
valuable consideration.
- The RTC ruled that Flavio partitioned his properties during
his lifetime and that there is an intention to convey Lot 871
to Alberta.
- However, there is a valid title over Lot 943 and the
complaint in respect thereof should be dismissed.
Whether or not a Partition inter vivos is valid
- The SC is convinced by the documentary and testimonial
evidence thus presented that indeed a partition over the
estate of Flavio Zaragoza was executed during the latter's
lifetime. It is in this partition that Alberta anchors her claim
for the disputed lots as in fact, it was admitted by the
respondents that Lots 943 and 871 were supposedly the
inheritance shares of youngest sibling.
- As to the validity of this partition, the SC held a partition
inter vivos is valid although the same should not encroach
upon the legitimes.
- As provided for in Art 1061, collation must be resorted to in
order to determine whether what has been received from
the decedent, during the lifetime of the latter by way of
donation or any gratuitous title, has impaired the legitime.
- Unfortunately, in this case, collation can not be done as not
all the indispensable parties are impleaded in the case.
Hence, The SC held that the petition must therefore be
dismissed without prejudice to the institution of a new
proceeding where all the indispensable parties are present
for the rightful determination of their respective legitimes.
Whether or not the validity of the Deed of Sale over Lot 943
can be resolved in an action for delivery of share
- The validity of the Deed of Sale could not be collaterally
attacked in this petition pursuant to the provisions of PD
1529.
- The SC held that the certificate of title, in the absence of
fraud, is the evidence of title real interest of the owner. Once
registered, the same could not be modified or altered except
in limited circumstances, except in some proceeding
allowed by law.
- Art 1061
- Collation must be resorted to in order to determine whether
what has been received from the decedent, during the
lifetime of the latter by way of donation or any gratuitous
title, has impaired the legitime.
Adan v. Casili
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SUCCESSION REVIEWER
- Felix Adan brought an action for the judicial partition
against his sister Victoria and the latter’s husband of four
(4) parcels of land left by their deceased mother.
- In opposition to the judicial partition, the defendants averred
that said lots were ceded by their mother to Victoria as her
share of the inheritance; and that the Felix has received
more than his share consisting of money, expenses in his
professional study of surveying, livestock, palay, and real
property.
- The lower court found that the donation of the parcels of
land to Victoria were unsubstantiated by any written
document but that Felix had indeed received various sums
during the lifetime of their mother in palay, livestock and
expenses for his education amounting to around P3000,
more than the value of the lots in dispute, thus absolving
Victoria and her husband.
Whether or not Felix is entitled to any share in the four (4)
parcels of land left by their mother in the possession of
Victoria.
- NO.
- See Articles 1041 and 1042 in the next column.
- Since the career of surveyor is a professional one, and
since the expenses incurred by plaintiff's mother in giving
him that career encroached upon the legitime, it is proper to
collate one-half of the amount spent by her for him during
the two years he studied surveying, the other half being
considered as the amount which the plaintiff would have
spent if he had lived in the house and company of his
mother.
- Thus, of the P1,000 spent on Felix’s education, P500 is
chargeable against his legitime, to be included in the value
of the 12 carabaos, 300 cavans of palay, and cash of
P1,100 taken by Felix from his mother’s trunk.
- The value of the four (4) parcels of land in the possession
of Victoria, less the funeral expenses, is less than the total
amount received by Felix, thus he is no longer entitled to
the said lots.
- Compensation operates as to the fruits received by Victoria
and her husband from the said lots as against the fruits or
interests received by Felix from the money and property he
had received.
- Under the article 1041 of the Civil Code, allowances for
support, education, attendance in illnesses, even though
unusually expensive, apprenticeship, ordinary equipment,
or customary presents are not subject to collation.
- But article 1042 of the same Code provides that expenses
which may have been incurred by the parents in giving their
children a professional or artistic career shall not be
brought to collation unless the parent so orders or they
encroach upon the legitimate.
- It also provides that in cases in which it is proper to collate
them, the money which the child would have spent if it had
lived in the house and company of its parents shall be
deducted therefrom.
Dizon Rivera v. Dizon
SECTION 6. –
PARTITION AND DISTRIBUTION OF
THE ESTATE
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SUBSECTION 1. - Partition
• The immediate effect of the decedent’s death is the
vesting of the successional rights of the successors,
because the rights to the succession are transmitted
from the moment of the death of the decedent.
• What the successors acquire vested rights over is the net
estate and the net estate is what remains after all the
unpaid debts of the decedent are paid, and the value of
all the donations inter vivos is added. Thus, debts first
have to be paid; it is possible, if the debts exceed the
assets, that after the debts are paid, there will be no
estate to speak of.
• If however the decedent’s gross assets exceed his
liabilities, or if there are inofficious donations to be
returned, his net estate passes to his successors [heirs,
legatees, devisees] at the precise moment of death.
• The estate however, is a mass of properties, usually
consisting of various items. The immediate effect
therefore, of the decedent’s death as far as successional
rights are concerned, is a CO-OWNERSHIP of the heirs
over the entire mass. The legatees and devisees will
acquire a right to the specific items given to them,
assuming the legacies and devises are not inofficious.
• The actual partition of the estate among the heirs
terminating the co-ownership can be done basically
through 2 methods:
1. Extrajudicial
agreement among the heirs, or
2. Judicial proceedings
• The sequence may be outlines as:
1. Upon decedent’s death – co-ownership of heirs
over net hereditary or partible estate
2. Subsequent Partition
a. By extrajudicial agreement under Rule 74
Sec1 of the ROC
b. Through judicial order in appropriate
proceedings under Rule 90 RoC
• Actually, the judicial proceeding in which the partition is
ordered comprises the entire settlement of the estate of
the decedent, covered by Rules 73-90 of the RoC
• In this part of successional law, i.e. the partition of the
estate, substantive law and procedural law intersect.
Art. 1078. Where there are two or more heirs, the
whole estate of the decedent is, before its
partition, owned in common by such heirs,
subject to the payment of debts of the
deceased.
Art. 1079. Partition, in general, is the separation,
division and assignment of a thing held in
common among those to whom it may
belong. The thing itself may be divided, or its
value.
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SUCCESSION REVIEWER
• Partition ends the co-ownership among the co-heirs as to
the thing partitioned.
• KINDS OF PARTITION
A. Actual – physical division of the thing among the
co-heirs
B. Constructive – any act, other than physical
division, which terminates the co-ownership [such
as sale to a 3rd person – in relation to Articles
1082 and 1086].
Art. 1080. Should a person make partition of his
estate by an act inter vivos, or by will, such
partition shall be respected, insofar as it does
not prejudice the legitime of the compulsory
heirs.
A parent who, in the interest of his or her
family, desires to keep any agricultural,
industrial, or manufacturing enterprise intact,
may avail himself of the right granted him in
this article, by ordering that the legitime of
the other children to whom the property is not
assigned, be paid in cash.
PARTITION BY CAUSANTE
• The causante [decedent] can himself effect the partition
of his estate.
1. Nature of Partition by Causante – a partition
made by the causante has the ff. characteristics:
a. It takes effect only upon death,
b. It is revocable as long as the causante is
alive; hence the causante can change or
modify it, or even rescind it during his
lifetime.
o These characteristics stem from the fact that the
partition is based on succession as the mode of
transfer and succession is necessarily mortis
causa. Succession, in our law, cannot take
place during the causante’s lifetime; that would
be a donation inter vivos, not succession.
2. How causante may make the Partition –
a. By WILL, or
b. By Act Inter Vivos
i. Form of Partition by Act Inter
Vivos – there is authority to the effect
that a partition inter vivos should be in
writing and in a public instrument.
[Fajardo v. Fajardo] But in an obiter, SC
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held that even an oral partition is valid.
[Chavez v. IAC]
ii. In case of a partition inter vivos,
must there be a prior will?
 Certainly, a mere partition inter vivos
which does not observe the formalities
of a will cannot by itself, make
testamentary dispositions because that
would circumvent the requirement that
dispositions mortis causa can be made
only by means of a will. A person
cannot, in the guise of making a
partition, make disposition of property
to take effect upon his death.
 Justice HOFI says that if partition is
made by private writing, after which a
will is executed, the subsequent will
DOES NOT cure the private writing.
Therefore, the partition is not effective.
 Alsua –Betts v. CA provides that the
partition inter vivos is void even if a
subsequent will is executed in
conformity with the provisions of the
prior partition.
 The case of Legasto v. Verzosa
provides that a mere partition not
connected to a will is not binding. The
act of disposition has to be by will, but
the partition/distribution may be done
by will or in writing. Still, it must be
pursuant to or connected to a WILL.
3. Possible Effect of Amended Wording of Art1080:
 The old Code used the term “testator” while
Art1080 used the term “person”. Under the
present provision, a partition inter vivos can be
validly made even without a prior supporting
will, provided that it is not used to make mortis
causa dispositions Nothing can take the place
of a will to dispose of property mortis causa.
 Hence, the only way a partition without a will
can be valid is by following strictly the intestate
portions provided by law: i.e. the partition
should conform exactly to the portions provided
by law in intestate succession, for then the
causante would not be making testamentary
dispositions in the partition – the dispositions
would be by virtue of intestate succession.
• Limitation on Partition by Causante
 The legitimes of the causante’s
compulsory heirs cannot be impaired by partition
made by him, whether in a will or by an act inter
vivos, pursuant to Art904.
• Paragraph 2 – Partition to Keep an Enterprise Intact
 It seems only a parent is
allowed the privilege of this paragraph.
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 It is understood that this
privilege to make the partition in such a way as to
keep the enterprise intact can be exercised only if
enough cash or other property is available to satisfy
the legitimes of the other children. Under no
circumstances should the legitimes be impaired.
Art. 1081. A person may, by an act inter vivos or
mortis causa, intrust the mere power to make
the partition after his death to any person
who is not one of the co-heirs.
The provisions of this and of the
preceding article shall be observed even
should there be among the co-heirs a minor
or a person subject to guardianship; but the
mandatary, in such case, shall make an
inventory of the property of the estate, after
notifying the co-heirs, the creditors, and the
legatees or devisees.
• Mandatary cannot be a co-heir – the reason for this
prohibition is to ensure fairness and impartiality.
Art. 1082. Every act which is intended to put an
end to indivision among co-heirs and
legatees or devisees is deemed to be a
partition, although it should purport to be a
sale, and exchange, a compromise, or any
other transaction.
• CONSTRUCTIVE PARTITION
 Partition may be actual or
constructive, in relation to Article 1079. This article
refers to cases of constructive partition.
CASE
Tuason v. Tuason & Gregorio Araneta Inc.
Art. 1083. Every co-heir has a right to demand the
division of the estate unless the testator
should have expressly forbidden its partition,
in which case the period of indivision shall
not exceed twenty years as provided in article
494. This power of the testator to prohibit
division applies to the legitime.
Even though forbidden by the testator,
the co-ownership terminates when any of the
causes for which partnership is dissolved
takes place, or when the court finds for
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compelling reasons that division should be
ordered, upon petition of one of the co-heirs.
• Partition Generally a Matter of Right
 As a general rule, any co-heir
may demand partition at any time. This is the same
rule laid down in Art494 par1:
Art. 494. No co-owner shall be obliged to
remain in the co-ownership. Each co-owner may
demand at any time the partition of the thing
owned in common, insofar as his share is
concerned.
Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not
exceeding ten years, shall be valid. This term
may be extended by a new agreement.
A donor or testator may prohibit partition for a
period which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
No prescription shall run in favor of a co-owner
or co-heir against his co-owners or co-heirs so
long as he expressly or impliedly recognizes the
co-ownership.
 EXCEPTIONS – despite this
imposed indivision, partition may be demanded:
1. When any of the
causes for dissolution of a partnership
occurs, under Arts. 1830-1831:
Art. 1830. Dissolution is caused:
(1) Without violation of the agreement
between the partners:
(a) By the termination of the definite
term or particular undertaking
specified in the agreement;
(b) By the express will of any partner,
who must act in good faith, when no
definite term or particular is specified;
(c) By the express will of all the partners
who have not assigned their interests
or suffered them to be charged for
their separate debts, either before or
after the termination of any specified
term or particular undertaking;
(d) By the expulsion of any partner from
the business bona fide in accordance
with such a power conferred by the
agreement between the partners;
(2) In contravention of the agreement
between the partners, where the
circumstances do not permit a
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dissolution under any other provision of
this article, by the express will of any
partner at any time;
(3) By any event which makes it unlawful
for the business of the partnership to be
carried on or for the members to carry it
on in partnership;
(4) When a specific thing which a partner
had promised to contribute to the
partnership, perishes before the
delivery; in any case by the loss of the
thing, when the partner who contributed
it having reserved the ownership
thereof, has only transferred to the
partnership the use or enjoyment of the
same; but the partnership shall not be
dissolved by the loss of the thing when
it occurs after the partnership has
acquired the ownership thereof;
(5) By the death of any partner;
(6) By the insolvency of any partner or of
the partnership;
(7) By the civil interdiction of any partner;
(8) By decree of court under the following
article.
Art. 1831. On application by or for a partner
the court shall decree a dissolution
whenever:
(1) A partner has been declared insane in
any judicial proceeding or is shown to be
of unsound mind;
(2) A partner becomes in any other way
incapable of performing his part of the
partnership contract;
(3) A partner has been guilty of such
conduct as tends to affect prejudicially
the carrying on of the business;
(4) A partner wilfully or persistently
commits a breach of the partnership
agreement, or otherwise so conducts
himself in matters relating to the
partnership business that it is not
reasonably practicable to carry on the
business in partnership with him;
(5) The business of the partnership can
only be carried on at a loss;
(6) Other circumstances render a equality in nature, kind and quality, so that if A gets
dissolution equitable.
On the application of the purchaser of
a partner's interest under Article 1813 or
1814:
(1) After the termination of the specified
term or particular undertaking;
(2) At any time if the partnership was a
partnership at will when the interest was
assigned or when the charging order
was issued.
2. When the Court finds
compelling reasons for partition.
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 When the co-heirs agree on
indivision for a period not exceeding 10years,
renewable for like periods.
Art. 1084. Voluntary heirs upon whom some
condition has been imposed cannot demand
a partition until the condition has been
fulfilled; but the other co-heirs may demand it
by giving sufficient security for the rights
which the former may have in case the
condition should be complied with, and until
it is known that the condition has not been
fulfilled or can never be complied with, the
partition shall be understood to be
provisional.
• Application of Article – Institutions with a Suspensive
Condition
• Rationale
 The heir instituted under a
suspensive condition acquires no rights unless and
until the condition happens.
 The other heirs not so instituted,
however, should not be deprived of their right to
demand partition, subject to the obligation to protect
the inchoate right of the conditional heir, by
furnishing adequate security.
Art. 1085. In the partition of the estate, equality
shall be observed as far as possible, dividing
the property into lots, or assigning to each of
the co-heirs things of the same nature, quality
and kind.
• EQUALITY AMONG CO-HEIRS
 Quantitative – the shares of the
co-heirs are not necessarily equal in value, but are
determined by the law and by will.
 Qualitative – whatever the
aliquot portions be, however, the law mandates
a parcel of rice land, B should also be given one.
• EXCEPTIONS / QUALIFICATIONS to the requirement of
Qualitative Equality –
1. If the causante has made the partition himself
2. If the co-heirs agree otherwise
3. If qualitative equality is impossible or impracticable.
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Art. 1086. Should a thing be indivisible, or would
be much impaired by its being divided, it may
be adjudicated to one of the heirs, provided
he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should
demand that the thing be sold at public
auction and that strangers be allowed to bid,
this must be done.
• This is another instance of constructive partition: sale of
the thing and division of the proceeds among the heirs.
This will have to be resorted to if the thing is essentially
indivisible or in physical partition will so diminish its value
that it becomes unserviceable or useless.
• To whom thing may be sold:
1. To a 3rd person, or
2. If none of the co-heirs
object, to any one of them who is interested. If
more than one are interested in buying, they
may buy it jointly and have the proceeds
distributed among the others to the extent of
their respective shares. But the co-ownership
will continue as to the buyers.
Art. 1087. In the partition the co-heirs shall
reimburse one another for the income and
fruits which each one of them may have
received from any property of the estate, for
any useful and necessary expenses made
upon such property, and for any damage
thereto through malice or neglect.
• MUTUAL ACCOUNTING
 Upon partition, the co-heirs shall
render a mutual accounting of benefits received and
expenses, both necessary and useful, incurred by
each of them.
 Thus, any heir who between the
decedent’s death and partition time, received fruits
from the estate shall reimburse his co-heirs their
respective shares, in proportion to the hereditary
interest of each.
 Similarly, any heir who incurred
necessary or useful expenses on the hereditary
estate may demand reimbursement from his co-
heirs in the same proportion.
 This article lays down the same
rule contained in the Title on Co-ownership under
Art500:
Art. 500. Upon partition, there shall be a
mutual accounting for benefits received and
reimbursements for expenses made. Likewise,
each co-owner shall pay for damages caused by
reason of his negligence or fraud.
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Art. 1088. Should any of the heirs sell his
hereditary rights to a stranger before the
partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by
reimbursing him for the price of the sale,
provided they do so within the period of one
month from the time they were notified in
writing of the sale by the vendor.
• Right of an Heir to Convey Share Before Partition
 Successional rights vest upon
the decedent’s death. Consequently, an heir may
dispose of his aliquot share after that time; he may
do this gratuitously or onerously.
• RIGHT OF REDEMPTION IN CASE OF SALE
 In the event any co-heir sells his
aliquot portion to a stranger before partition time,
this article entitles any co-heir to redeem the portion
sold.
A. Sale must be to a stranger – a stranger within
the meaning of this article is anyone who is
not a co-heir. [Basa v. Aguilar]
B. When right of redemption may be exercised –
the right may be exercised only before
partition, not after. [Caro v. CA]
• Requirement of Written Notice
 The article gives the co-heirs
the right of redemption, which can be exercised
within one month from written notice to them by the
vendor.
 Written notice therefore is
required; without it the period does not commence to
run. The SC has, as a rule, interpreted this
requirement of written notice strictly.
 Garcia v. Calaliman – Written
notice is indispensable, actual knowledge of the sale
acquired in some other manners by the
redemptioner, notwithstanding. He or she is still
entitled to written notice to remove all uncertainty as
to the sale, its terms and its validity, and to quiet any
doubt that the alienation is not definitive. The law not
having provided for any alternative, the method of
notifications remains exclusive, though the Code
does not prescribe any particular form of written
notice nor any distinctive method for written
notification of redemption.
• The same rule is laid down in Art1620 which applies
where the co-ownership covers specific property. While
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Article 1088 applies where the co-ownership covers the
mass of the hereditary estate. But the distinction is
academic and the rule is the same.
Art. 1620. A co-owner of a thing may exercise the
right of redemption in case the shares of all the
other co-owners or of any of them, are sold to a
third person. If the price of the alienation is
grossly excessive, the redemptioner shall pay
only a reasonable one.
Should two or more co-owners desire to
exercise the right of redemption, they may only
do so in proportion to the share they may
respectively have in the thing owned in
common.
• When more than one co-owner wish to redeem – implicit
in article 1088 and explicit in article 1620 is that in such
case, ALL the co-owners wishing to redeem may do so,
but in proportion to each one’s hereditary interest over
the mass.
Art. 1089. The titles of acquisition or ownership of
each property shall be delivered to the co-heir
to whom said property has been adjudicated.
• This is particularly important in case of registered land
because the old title has to be surrendered so that a new
title in the name of the heir may be issued.
Art. 1090. When the title comprises two or more
pieces of land which have been assigned to
two or more co-heirs, or when it covers one
piece of land which has been divided between
two or more co-heirs, the title shall be
delivered to the one having the largest
interest, and authentic copies of the title shall
be furnished to the other co-heirs at the
expense of the estate. If the interest of each
co-heir should be the same, the oldest shall
have the title.
• This article only provides for the right over the document.
• The co-heirs however have the right to have the title
divided into individual titles, a separate one for each of
the owners to correspond to the separate portions held
by them respectively.
SUBSECTION 2. - Effects of Partition
Art. 1091. A partition legally made confers upon
each heir the exclusive ownership of the
property adjudicated to him.
• The effect of partition is termination of co-ownership.
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Art. 1092. After the partition has been made, the
co-heirs shall be reciprocally bound to
warrant the title to, and the quality of, each
property adjudicated.
• OBLIGATION OF MUTUAL WARRANTY
 Partition among co-heirs
imposes upon them the same mutual obligation of
warranties imposed among co-owners in general.
 According to Art501: “Every co-
owner shall, after partition, be liable for defects of
title and quality of the portion assigned to each of
the other co-owners.”
• RULE ON WARRANTIES
 The applicable rules on
warranties are found in Articles 1547-1580 in the title
on Sales, insofar as those articles are not
inconsistent with the rules given in this subsection.
Art. 1093. The reciprocal obligation of warranty
referred to in the preceding article shall be
proportionate to the respective hereditary
shares of the co-heirs, but if any one of them
should be insolvent, the other co-heirs shall
be liable for his part in the same proportion,
deducting the part corresponding to the one
who should be indemnified.
Those who pay for the insolvent heir shall
have a right of action against him for
reimbursement, should his financial condition
improve.
• Proportional Liability of Co-heirs on Warranty
 Burdens should be proportional
to benefits.
• Insolvency of One of Obligors – should one of the co-
heirs bound to make good the warranty be insolvent, his
portion shall be borne proportionally by all, including the
one entitled to the warranty: Example -
 Co-heirs are A, B, C, D and E in
equal shares of P60k each. B claims warranty for
the total amount of his share because he was
evicted.
 A, C, D and E have to contribute
P12k each to make good the warranty. Since there
was eviction in the amount of P60k, the total value to
be partitioned was only P240k, hence P48k each.
 Should A be insolvent, his P12k
share shall be borne by all the others, including B.
Hence, C, D and E have to contribute P3k more,
making their individual liability P15k. B receives a
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total of P45k, having borne his own share of P3k caused by the fault of the distributee of
from A’s insolvency. the property.

• EXCEPTION to right to reimbursement from insolvent • This article enumerates the instances when there is
obligor: insolvency that is judicially declared, under the NO MUTUAL WARRANTY. It is not accurate to refer to it
Insolvency Law, since judicially declared insolvency as a cessation, since there was none to begin with.
extinguishes all obligations. These are –
1. Partition by the testator himself – save where the
legitime is impaired.
Art. 1094. An action to enforce the warranty 2. Agreement among the co-heirs to suppress the
warranty.
among heirs must be brought within ten years
3. Supervening events causing the loss or the
from the date the right of action accrues. diminution in value.
4. Fault of the co-heir
Art. 1095. If a credit should be assigned as 5. Waiver
collectible, the co-heirs shall not be liable for
the subsequent insolvency of the debtor of
the estate, but only for his insolvency at the
time the partition is made.
The warranty of the solvency of the
debtor can only be enforced during the five
years following the partition.
Co-heirs do not warrant bad debts, if so
known to, and accepted by, the distributee.
But if such debts are not assigned to a co-
heir, and should be collected, in whole or in SUBSECTION 3. - Rescission and Nullity
part, the amount collected shall be distributed of Partition
proportionately among the heirs.

• Credit Assigned to Co-Heir in Partition Art. 1097. A partition may be rescinded or

 The warranty covers only annulled for the same causes as contracts.
insolvency of the decedent’s debtor at the time of
partition, not subsequent insolvency, for which the
• CAUSES FOR ANNULMENT
co-heir takes the risk.
Art. 1390. The following contracts are voidable or
 Foolhardy is the co-heir who will annullable, even though there may have been no
accept a collectible as part of his share in the damage to the contracting parties:
partition. A credit, even under the best of (1) Those where one of the parties is incapable
circumstances, is aleatory. of giving consent to a contract;
(2) Those where the consent is vitiated by
• The warranty has a special prescriptive period of FIVE mistake, violence, intimidation, undue
(5) YEARS. influence or fraud.
These contracts are binding, unless they are
• Bad Debt Assigned to a Co-Heir
annulled by a proper action in court. They are
 A co-heir who accepts a known susceptible of ratification.
bad debt as his share is either a fool or a masochist.
• CAUSES FOR RESCISSION
Art. 1381. The following contracts are rescissible:
Art. 1096. The obligation of warranty among co- (1) Those which are entered into by guardians
heirs shall cease in the following cases: whenever the wards whom they represent suffer
(1) When the testator himself has made the lesion by more than one-fourth of the value of
partition, unless it appears, or it may be the things which are the object thereof;
reasonably presumed, that his intention (2) Those agreed upon in representation of
was otherwise, but the legitime shall absentees, if the latter suffer the lesion stated in
the preceding number;
always remain unimpaired; (3) Those undertaken in fraud of creditors when the
(2) When it has been so expressly stipulated latter cannot in any other manner collect the
in the agreement of partition, unless claims due them;
there has been bad faith; (4) Those which refer to things under litigation if they
(3) When the eviction is due to a cause have been entered into by the defendant
subsequent to the partition, or has been

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without the knowledge and approval of the
litigants or of competent judicial authority;
(5) All other contracts specially declared by law to be
subject to rescission.
• Paragraphs 1 and 2 are modified by the following article.
Art. 1098. A partition, judicial or extra-judicial,
may also be rescinded on account of lesion,
when any one of the co-heirs received things
whose value is less, by at least one-fourth,
than the share to which he is entitled,
considering the value of the things at the time
they were adjudicated.
• LESION is economic injury, where the party receives
less than he is entitled to receive. Lesion is exceedingly
difficult to determine and evaluate and is viewed with
increasing disfavor by modern civil law.
• Amount of Lesion
 The minimum extent of lesion
for rescission to be available is ONE-FOURTH or
25%.
 Note the slight variation from
paragraphs 1 and 2 of Art1381 which specifies
MORE than ¼. Evidently, in cases of partition of the
inheritance, Art1098 applies.
• AN EXCEPTION TO THIS ARTICLE IS FOUND IN THE
FOLLOWING ARTICLE.
Art. 1099. The partition made by the testator
cannot be impugned on the ground of lesion,
except when the legitime of the compulsory
heirs is thereby prejudiced, or when it
appears or may reasonably be presumed, that
the intention of the testator was otherwise.
• This article is an exception to the preceding article.
• A partition made by the Testator himself is NOT subject
to rescission even in case of lesion in the amount
specified in the preceding article.
• EXCEPT in the following cases:
1. Impairment of the
legitime [even if the lesion is less than one-
fourth]
2. Mistake by the testator
or vitiation of his intent.
Art. 1100. The action for rescission on account of
lesion shall prescribe after four years from
the time the partition was made.
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• Prescriptive period of FOUR (4) YEARS – this is the
same period laid down in the general rule of rescission of
contracts under article 1389.
Art. 1101. The heir who is sued shall have the
option of indemnifying the plaintiff for the
loss, or consenting to a new partition.
Indemnity may be made by payment in
cash or by the delivery of a thing of the same
kind and quality as that awarded to the
plaintiff.
If a new partition is made, it shall affect
neither those who have not been prejudiced
nor those have not received more than their
just share.
• OBLIGOR’S OPTIONS – it is the co-heir who is sued for
rescission who has the option. He has 2 choices:
1. To have a Re-partition,
or
2. To indemnify the co-
heir the amount of the lesion suffered.
Art. 1102. An heir who has alienated the whole or
a considerable part of the real property
adjudicated to him cannot maintain an action
for rescission on the ground of lesion, but he
shall have a right to be indemnified in cash.
• Correlated with the preceding article, this article is
unnecessary since anyway it is the party sued who is
given the option.
Art. 1103. The omission of one or more objects or
securities of the inheritance shall not cause
the rescission of the partition on the ground
of lesion, but the partition shall be completed
by the distribution of the objects or securities
which have been omitted.
• Incompleteness of the partition is not a ground for
rescission. The remedy is a supplemental partition.
Art. 1104. A partition made with preterition of any
of the compulsory heirs shall not be
rescinded, unless it be proved that there was
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bad faith or fraud on the part of the other
persons interested; but the latter shall be
proportionately obliged to pay to the person
omitted the share which belongs to him.
• This is NOT preterition under Art854. This is simply an
omission of a compulsory heir in the partition, the
assumption being something is left for him in the form of
an undisposed portion of the estate. The omitted heir
simply gets his rightful share [Non v. CA]
• If the compulsory heir is one in the direct line and is
totally omitted from the inheritance, Art854 applies.
Art. 1105. A partition which includes a person
believed to be an heir, but who is not, shall be
void only with respect to such person.
• This is the reverse of the preceding article. Here an
outsider is mistakenly included in the partition. The
obvious remedy is to recover the property from him and
have it redistributed among the proper recipients.
CASES FOR ARTICLES 1078-1105
Legasto v. Verzosa
- On May 13, 1925, Sabina Almadin executed a will
devising certain parcels of land belonging to her, to her four
nieces, Maria Verzosa, Oliva Verzosa, Toribia Verzosa, and
Ruperta Palma, daughters of her sister Catalina Almadin,
designating the parcels to be given to each.
- On August 8, 1925, Sabina Almadin partitioned her
property among her aforesaid sister and nieces, executing
separate Deeds of Sale in favor of each of her nieces.
- The assignees, Maria Verzosa, Toribia Verzosa,
Oliva Verzosa, and Ruperta Palma, took possession of their
respective parcels thus ceded by Sabina Almadin, and
have been cultivating them as exclusive owners thereof.
- Unfortunately, the will of Sabina was not admitted to
probate. A complaint was filed by the administrator seeking
delivery of the parcels of land in the possession of Sabina’s
nieces.
As Sabina Almadin's will was disallowed for the reason that it
did not contain all the essential requisites provided by law for
its validity, can the aforesaid partition of her estate made by
said testatrix among her nieces be deemed valid?
- NO. It is an indispensable condition precedent to a
testator partitioning his estate inter vivos that he have made
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a valid will disposing of said estate among his heirs; and if
this will be declared null and void, the partition made by the
testator in pursuance of its provisions is likewise null and
void, for where these provisions cease to exist, the partition
made in conformity therewith also becomes null and void,
as the cessation of the cause implies the cessation of the
effect.
- And since Sabina, Almadin's will is null and void for
lack of the legal requisites, consequently, the partition
which she made of her estate among her nieces the
defendants-appellants herein, during her lifetime is likewise
null and void.
- ART. 1056. If the testator should make a partition of
his property by an act inter vivos, or by will, such partition
shall stand in so far as it does not prejudice the legitime of
the forced heirs.
- A testator may, by an act inter vivos, partition his
property, but he must first make a will with all the formalities
provided for by law. And it could not be otherwise, for
without a will there can be no testator; when the law,
therefore, speaks of the partition inter vivos made by a
testator of his property, it necessarily refers to that property
which he has devised to his heirs.
- A person who disposes of his property gratis inter
vivos is not called a testator, but a donor. In employing the
word "testator," the law evidently desired to distinguish
between one who freely donates his property in life and one
who disposes of it by will to take effect after his death.
Tuason v. Tuason
- The siblings Angela, Nievaes and Antonio Tuason Jr., are
co-owners of a land in Sampaloc, Manila, each owning an
undivided 1/3 portion. Nieves wanted and asked for a
partition of the property, but failing in this, she offered to
sell her 1/3 portion. Her sister, brother and mother declined
to buy her share so she sold it to Gregorio Araneta, a
domestic corporation.
- The new co-owners executed a MOA to the effect that they
all agreed to improve the property by filling it and
constructing roads and curbs on the same and then
subdivide it into small lots for sale. It also provided that the
co-ownership shall be preserved until all the lots have been
sold.
- During and after the execution of the MOA Atty. J. Antonio
Araneta, a member of the board of Araneta, acted as the
attorney in fact of Angela and Antonio Tuason.
- After some time, Angela revoked the powers conferred on
her attorney in fact and decided to rescind the contract and
asked that the property be partitioned.
WON the contract be declared null and void because its terms
violate the provision of Art. 400 of the Civil Code.
- No, Art.400 of the CC is not applicable. The contract
far from violating the legal provision that forbids a co-owner
from being obliged to remain a party to the community,
precisely has for its purpose and object the dissolution of
the co-ownership and of the community by selling the parcel
held in common and dividing the proceeds of the sale
among the co-owners. The obligation imposed in the
contract to preserve the co-ownership until all the lots shall
have been sold, is a mere incident to the main object of
dissolving the co-ownership.
- By virtue of the document, the parties thereto practically
and substantially entered into a contract of partnership as
the best and most expedient means of eventually dissolving
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the co-ownership, the life of the said partnership to end
when the object of its creation shall have been attained.
- Art. 400: No co-owners shall be obliged to remain a party to
the community. Each may, at any time, demand the
partition of the thing held in common.
- Nevertheless, an agreement to keep the thing undivided for
a specified length of time, not exceeding ten years, shall be
valid. This period may be a new agreement.
Garcia v. Calinisan
- Gelacio Garcia died intestate, leaving a parcel of
unregistered land Iloilo.O
- n his death the property was inherited by his nephews,
nieces, grandnephews who are the descendants of his late
brothers, Pedro, Simeon, Buenaventura and Marcos.
- A group of heirs signed a document entitled “Extrajudicial
Partition and Deed of Sale”. In the same document, the
heirs transferred the land to Spouses Calaliman.
- The document was inscribed in the RD of Iloilo.
- 2 weeks after, another group of heirs sold to Spouses
Calaliman their shares, rights, interest and participation in
the same parcel of land. The Deed of Sale was registered
in the RD of Iloilo.
- 5 months after, some of the heirs (petitioners herein) filed a
case for legal redemption of the ¾ of the land which was
sold by their co-heirs to Spouses Calaliman.
- The trial court ruled in favor of petitioners and ordering
defendants to resell the property.
- However, the CA reversed the decision and ordered for the
dismissal of the complaint.
- Hence, this petition.
Whether petitioners exercised their right of redemption within
the period fixed by Art. 1088.
- YES. The SC reversed the decision of the CA and
reinstated the decision of the trial court.
- No notification in writing was ever received by petitioners
about the sale of the hereditary interest of some of their co-
heirs in the parcel of land they inherited from the late
Gelacio Garcia.
- Also, the SC held untenable the argument of respondents
that the requirement that the notice must be in writing is
deemed satisfied when petitioner Francisco Garcia went to
the Office of the Register of Deeds and saw for himself,
read and understood the contents of the deeds of sale.
- By citing another case, the Court did not consider the
registration of the deed of sale with the Register of Deeds
sufficient notice, most specially because the property
involved was unregistered land.
- Thus, the SC held that petitioners have not lost their right to
redeem, for in the absence of a written notification of the
sale by the vendors, the 30-day period has not even begun
to run.
- The SC also declared that petitioners can claim attorney's
fees for bad faith on the part of respondents, first, for
refusing redemption, and secondly for declaring the entire
land as theirs, although they knew some heirs had not sold
their shares.
- In the interpretation of a related provision (Article 1623 of
the New Civil Code) this Court had stressed that written
notice is indispensable, actual knowledge of the sale
acquired in some other manners by the redemptioner,
notwithstanding. He or she is still entitled to written notice,
as exacted by the Code, to remove all uncertainty as to the
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sale, its terms and its validity, and to quiet any doubt that
the alienation is not definitive. The law not having provided
for any alternative, the method of notifications remains
exclusive, though the Code does not prescribe any
particular form of written notice nor any distinctive method
for written notification of redemption.
- In the absence of a written notification of the sale by the
vendors, the 30-day period provided in Art. 1088 has not
even begun to run.
Balanay Jr. v. Martinez
- Leodegaria Julian, in her will, partitioned her paraphernal as
well as all the conjugal properties as if they were all owned
by her, disposing of her husband's one-half share.
- The will also provided that the properties should not be
divided during her husband's lifetime but should remain
intact and that the legitimes should be paid in cash to be
satisfied out of the fruits of the properties.
- Felix Balanay, Jr. filed a petition for the approval of his
mother's will which was opposed by the husband and some
of her children.
- During the pendency of the probate proceedings Felix
submitted to the court a document showing his father's
conformity to the testamentary distribution, renouncing his
hereditary rights in favor of his children in deference to the
memory of his wife.
- The Court gave effect to the affidavit and conformity of the
surviving spouse.
- Meanwhile, a certain Atty. David Montaña, Sr. allegedly, in
behalf of the petitioner, moved to dismiss the probate
proceedings and requested authority to proceed by intestate
proceedings on the ground that the will was void (because
Leodegaria cannot validly dispose of her husband’s share).
- This motion was granted by the probate court and the
petition for the allowance of the will was dismissed.
- Felix appealed the decision of the trial court declaring the
will void before resolving the question of its formal validity.
Whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.
- NO. In view of certain unusual provisions of the will, which
are of dubious legality, and because of the motion to
withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had
been established.
- The probate of a will might become an idle ceremony if on
its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will
be passed upon, even before it is probated, the court should
meet the issue
Whether or not the testator validly prohibited the partition of her
properties until after the lifetime of her husband and
consequently ordered that the legitimes be paid in cash.
- This provision of the will is void. First, the prohibition to
partition the estate is only valid for twenty years. Hence, the
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prohibition lasting for the husband’s lifetime shall be limited

to 20 years.
- Second, the provision stating that the legitimes should be
paid in cash is contrary to article 1080 of the Civil Code
- The only instance when the legitimes could be paid in cash
is when an agricultural, commercial or manufacturing
enterprise is granted to one or more children, in which case
the legitimes of the other children to whom the property was 
not assigned shall be paid in cash. The article is not
applicable when such property is devised to all the children. END OF FINALS REVIEWER
- Art 1080

Alejandro v. CA

Garcia v. Calaiman

Verdad v. CA

- Macaria Atega was the owner of a parcel of land. At the

time of her death, she was survived by her son from the
first marriage, Ramon burdeos and her children from the
second marriage, including David Rosales.
- Sometime after Macaria’s death, David Rosales likewise
died intestate leaving his wife Socorro and his brothers and
sisters as his only heirs.
- The heirs of Ramon Burdeos sold to Zosima Verdad their
interest on the lot inherited from Macaria.
- Socorro discovered the sale while she was on the City
Treasurer’s Office and that a day after, she immediately
sought for the redemption of the property for P23,000. This
offer was refused by Zosima for being inadequate, the lot’s
current value being 80,000.
- Hence, Socorro filed a claim for legal redemption against
Zosima Verdad.

Whether or Not Socorro has the legal standing to redeem said

property
- Yes. It must be remembered that Socorro is not filing for
the legal redemption as an intestate heir of the mother-in-
law, apparently she is not one. Socorro derived the right
from her husband, part of whose estate is a share in the
mother’s inheritance.
- It must be remembered that David survived his mother,
and hence when David died, the inheritance derived from
his mother was transmitted to the wife.

Whether or not the cause of action already prescribed

- No. According to Art 1623 of the Civil Code, the right of
redemption is to be exercised within 30 days from written
notice by the prospective vendor.
- The written notice under said article has been declared
mandatory by the court so as to remove all uncertainties
about the sale, its terms and conditions, as well as its
efficacy and status.
- The written notice of sale, which will commence the
prescriptive period for the filing of an action for legal
redemption granted to heirs, is MANDATORY.

COMPARISON OF RULES ON TESTATE

AND INTESTATE SUCCESSION
RULE TESTATE INTESTATE NOTES
RIGHT OF Art. 1016. In order that the right of Art. 1018. In legal succession the Art. 1015. Accretion is a right by
ACCRETION accretion may take place in a share of the person who virtue of which, when two or

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SUCCESSION REVIEWER
testamentary succession, it
shall be necessary:
(1) That two or more persons
be called to the same
inheritance, or to the same
portion thereof, pro
indiviso; and
(2) That one of the persons
thus called die before the
testator, or renounce the
inheritance, or be
incapacitated to receive it.
Art. 1022. In testamentary
succession, when the right of
accretion does not take place,
the vacant portion of the
instituted heirs, if no substitute
has been designated, shall
pass to the legal heirs of the
testator, who shall receive it
with the same charges and
obligations.
CAPACITY TO Art. 1025. In order to be
SUCCEED capacitated to inherit, the heir,
devisee or legatee must be
living at the moment the
succession opens, except in
case of representation, when it
is proper.
A child already conceived
at the time of the death of the
decedent is capable of
succeeding provided it be born
later under the conditions
prescribed in article 41.
ACCEPTANCE Art. 1055. If a person, who is called
OR to the same inheritance as an
REPUDIATION heir by will and ab intestato,
OF repudiates the inheritance in his
INHERITANCE capacity as a testamentary heir,
he is understood to have
repudiated it in both capacities.
Should he repudiate it as
an intestate heir, without
knowledge of his being a
testamentary heir, he may still
accept it in the latter capacity.
HALF BLOOD Art. 848. If the testator should
AND FULL institute his brothers and
BLOOD sisters, and he has some of full
BROTHERS blood and others of half blood,
AND SISTERS the inheritance shall be
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repudiates the inheritance shall
always accrue to his co-heirs.
Art. 968. If there are several
relatives of the same degree,
and one or some of them are
unwilling or incapacitated to
succeed, his portion shall
accrue to the others of the
same degree, save the right of
representation when it should
take place.
Art. 1025. In order to be
capacitated to inherit, the heir,
devisee or legatee must be
living at the moment the
succession opens, except in
case of representation, when it
is proper.
A child already conceived
at the time of the death of the
decedent is capable of
succeeding provided it be born
later under the conditions
prescribed in article 41.
Art. 1055. If a person, who is called
to the same inheritance as an
heir by will and ab intestato,
repudiates the inheritance in his
capacity as a testamentary heir,
he is understood to have
repudiated it in both capacities.
Should he repudiate it as
an intestate heir, without
knowledge of his being a
testamentary heir, he may still
accept it in the latter capacity.
Art. 1006. Should brother and
sisters of the full blood survive
together with brothers and
sisters of the half blood, the
former shall be entitled to a
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1ST SEM 2006- 2007
more persons are called to the
same inheritance, devise or
legacy, the part assigned to the
one who renounces or cannot
receive his share, or who died
before the testator, is added or
incorporated to that of his co-
heirs, co-devisees, or co-
legatees.
Art. 1019. The heirs to whom the
portion goes by the right of
accretion take it in the same
proportion that they inherit.
Art. 1021. Among the compulsory
heirs the right of accretion shall
take place only when the free
portion is left to two or more of
them, or to any one of them and
to a stranger.
Should the part repudiated
be the legitime, the other co-
heirs shall succeed to it in their
own right, and not by the right of
accretion.
Art. 1024. Persons not
incapacitated by law may
succeed by will or ab intestato.
The provisions relating to
incapacity by will are equally
applicable to intestate
succession.
Art. 1041. The acceptance or
repudiation of the inheritance is
an act which is purely voluntary
and free.
Art. 1042. The effects of the
acceptance or repudiation shall
always retroact to the moment
of the death of the decedent.
Art. 1043. No person may accept
or repudiate an inheritance
unless he is certain of the death
of the person from whom he is
to inherit, and of his right to the
inheritance.
SUCCESSION REVIEWER 1ST SEM 2006- 2007

distributed equally unless a share double that of the latter.

different intention appears.
REPRESENTA Art. 856. A voluntary heir who dies Art. 969. If the inheritance should Art. 972. The right of
TION before the testator transmits be repudiated by the nearest representation takes place in
nothing to his heirs. relative, should there be one the direct descending line, but
A compulsory heir who dies before only, or by all the nearest never in the ascending.
the testator, a person relatives called by law to In the collateral line, it
incapacitated to succeed, and succeed, should there be takes place only in favor of the
one who renounces the several, those of the following children of brothers or sisters,
inheritance, shall transmit no degree shall inherit in their own whether they be of the full or
right to his own heirs except in right and cannot represent the half blood.
cases expressly provided for in person or persons repudiating
this Code. the inheritance. Art. 973. In order that
representation may take place,
it is necessary that the
representative himself be
capable of succeeding the
decedent.

Art. 974. 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. 975. When children of one or

more brothers or sisters of the
deceased survive, they shall
inherit from the latter by
representation, if they survive
with their uncles or aunts. But if
they alone survive, they shall
inherit in equal portions.



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