Succession Reviewer Atty Ganchoon

SUCCESSION REVIEWER (Atty.
Ganchoon)
2nd SEM 2013-2014
Based on Jottings and Jurisprudence on the Law on

Succession by Prof. Balane and Cases according to the
2006 Syllabus of Justice Hofilea
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
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 persons 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

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 latters
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
d) Transmitted even before judicial
recognition of heirship.
SUCCESSION REVIEWER (Atty. Ganchoon)
2nd SEM 2013-2014

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.
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 disposed of by the administrator,
but must be limited to the net residue.
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. Santibaez
- 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 decedents account. Also, it was
contended that the obligation of the deceased had passed
to 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 fathers holographic
will covering the said tractors. Thus the probate court had
already acquired jurisdiction over the said tractors which
they cant 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 decedents
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
Estate of K.H. Hemady v. Luzon Surety
2nd SEM 2013-2014

- 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 Suretys 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 Hemadys death, are not chargeable to his estate,
because upon his death he ceased to be guarantor.
Whether losses are chargeable to Hemadys 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 partys 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
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.
2nd SEM 2013-2014

- 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
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, Rufinos 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 Rufinos 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 fathers transaction, which gave rise
to the present claim for damages.
- 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. 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
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

persons 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
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 decedents 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 decedents 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 decedents death; i.e. without a moments
interruption. From this principle, the following
consequences flow
1. The law in force at the time of the decedents
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 decedents 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 heirs 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 decedents 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.
- 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.
2nd SEM 2013-2014

- 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 Unsons 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 coadministrators of the testate estate of Josefa De Borja,
Franciscos wife and Joses 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 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
Tasianas 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.
Tasianas 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 60day 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 decedents estate if there has
been left a will, stating that it was against the law and
public policy.
Thus, pending probate of Franciscos 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 Franciscos 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 decedents 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 Franciscos, Tasiana was
a compulsory heir so that her successional interest existed
independent of Franciscos 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.
- 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. Joses act of seeking a court order for the approval
and enforcement of the agreement is justified as said
2nd SEM 2013-2014
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
Tasianas unilateral attempts to back out from the same.
A hereditary share in a decedents 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 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.
- 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 courts permission.
2nd SEM 2013-2014

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 proindiviso 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 Eliosoros share in the property?
- SC held that his share is 11/20 of the entire property
because he owned 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.
- 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 Fragantes
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.
2nd SEM 2013-2014
- The decedents 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.
of a better term, can be denominated

compulsory 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:
ART. 778. Succession may be:

(1) Testamentary
(2) Legal or Intestate, or
(3) Mixed
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.
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.
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
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.
FOUR KINDS OF SUCCESSION ACCORDING TO

IMPORTANCE [Prof. Balane]
1. COMPULSORY
Succession to the legitime
Prevails over all other kinds
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 decedents 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 decedents 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 decedents property
after his death? Or do these fruits pertain to the heirs?
But wouldnt 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.
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 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?
2nd SEM 2013-2014
The definitions of the Spanish Code in conjunction

with Castans 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
Encarnacions 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 SelfAdjudication 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 Lozanos Motion and dismissed the
complaint filed by DKC.
- Whether the Contract of Lease with Option to Buy entered
into by the late Encarnacion Bartolome with DKC was
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.
- Article 1311 of the NCC provides: Contracts take effect
only between the parties, their assigns and heirs, except in
case where the rights and obligations arising therefrom are
not transmissible by (1) their nature, (2) stipulation or (3)
provision of law.
- In this case, there is neither contractual stipulation nor
legal provision making the rights and obligation under the
contract intransmissible. More importantly, the nature of
the rights and obligations therein are, by their nature,
transmissible.
- Where the service or act is of such a character that it may
be performed by another, or where the contract, by its
terms, shows the performance by others was
contemplated, death does not terminate the contract or
excuse nonperformance.

- In this case, there is no personal act required from the late
Encarnacion. Rather, the obligation of Encarnacion to
deliver possession of the property may very well be
performed by Victor.
- Also, the subject matter of the contract is a lease, a
property right. 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.
- Since DKC exercised its option in accordance with the
contract, the SC held that Victor has the obligation to
surrender possession of and lease of premises for 6 years.
However, SC held that the issue of tenancy should be
ventilated in another proceeding.
- The general rule, therefore, is that heirs are bound by
contracts entered into by their predecessors-in-interest
except when the rights and obligations arising therefrom
are not transmissible by (1) their nature, (2) stipulation or
(3) provision of law.
- Where acts stipulated in a contract require the exercise of
special knowledge, genius, skill, taste, ability, experience,
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.
2nd SEM 2013-2014
CHAPTER 2
TESTAMENTARY SUCCESSION
SECTION 1 WILLS
Subsection 1 Wills in General
ART. 783. A will is an act whereby a person is
permitted, with the formalities prescribed by
law, to control to a certain degree the
disposition of his estate, to take effect after
his death.
Operative Words in the Definition

1. ACT
The definition of a will as an act is too broad
and should have been more clearly
delimited with a more specific term such as
instrument or document, in view of the
provision of Art804 that every will must be
in writing.
NUNCUPATIVE or oral wills are not
recognized in our Code, unlike the Spanish
Civil Code wherein military wills could be
oral.
2. PERMITTED
Will-making is purely statutory.

3. FORMALITIES PRESCRIBED BY LAW
The requirement of form prescribed

respectively for attested and holographic
wills.
4. CONTROL TO A CERTAIN DEGREE
The testators power of testamentary

disposition is limited by the rules on
legitimes.
5. AFTER HIS DEATH
Testamentary succession, like all other kinds

of succession in our Code, is mortis causa.
10
2nd SEM 2013-2014
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 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.
CHARACTERISTICS OF WILLS
1. PURELY PERSONAL
Articles 784, 785 and 787
2. FREE AND INTELLIGENT
Article 839
The testators 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 this jurisdiction.
7. EXECUTED WITH ANIMUS TESTANDI
This characteristic is implied in Article 783
Rizals 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 testators estate mortis causa as the
purpose of will-making.
11. STATUTORY
The present Civil Code seems to limit the concept of a

will to a disposition of property to take effect upon and
after death.
CASES
Vitug v. CA
- Romarico Vitug and Nenita Alonte were co-administrators
of Dolores Vitugs (deceased) estate. Rowena Corona was
the executrix.
- Romarico, the deceaseds 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
11
was a donation inter vivos, it is a prohibited donation

(donation between spouses).
WON the survivorship agreement was valid.
YES.
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
spouses own properties to the other.
It was an error to include the savings account in the
inventory of the deceaseds 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 nondelegable:
1. The designation of heirs, devisees or
legatees
2nd SEM 2013-2014

2. The duration of efficacy of such designation,
including such things as conditions, terms,

substitutions;
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 WillMaking. 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 3 rd
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
12
expressed in Articles 1041-1057 of the NCC that the

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.
2nd SEM 2013-2014

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.
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 latters death, her share shall
be divided between her two nephews after P1,000 has
been given to Dona Luisas male children.
- Doa Honorata, Don Nicolas wife, left her estate to his
husband. Upon the husbands death, it shall be passed on
to her husbands siblings. However, upon the death of her
sister-in-law, Dona Luisa, same provisions shall apply as
what is stated in her husbands 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 widows house because
such was terminated upon the widows 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 Honoratas 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 Luisas share
is given to him whether or not Dona Luisa dies
before or after Dona Honorata.
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
testators 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 of my estate my first cousin
Jose and the testator has more
than one first cousin named Jose.
13
2nd SEM 2013-2014

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.
b) Latent as to PROPERTY I devise
to my cousin Pacifico my fishpond in

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
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.
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.
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.
14

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.
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 decedents 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?
2nd SEM 2013-2014

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.
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
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.
In the latter case, if the person owning the interest

to be acquired does not wish to part with it, the
15
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.
2nd SEM 2013-2014

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.
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.
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]
10. A devise of legacy shall transmit the whole extent
of the testators interest in the property disposed.

Except when it clearly appears that the
testator intended to convey a less interest.
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
16

testamentary provisions shall be carried out insofar as
they may be 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.
2nd SEM 2013-2014
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
priests 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 taken to carry out the intention of the testator which is
the controlling factor and which may override any defect in
form.
17
Whether or not the provisions of the New Civil Code which

allowed holographic wills may be applied to validate Fr.
Abadias 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 testators 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 testators 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 her widowhood the children of their servants and
the two children of D. Lucas y Eugenio;
2nd SEM 2013-2014

- 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 testators 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 testators 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 propertys
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 Montaa, 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
husbands 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. Montaa 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.
18

- 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
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.
2nd SEM 2013-2014

- 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 Peoples 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 executors 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 decedents 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 foreigners will to the
effect that his properties shall be distributed in accordance
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.
19

- 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 decedents 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
decedents estate would be governed by law other than his
national law if void, being contrary to article 16 of the NCC.
2nd SEM 2013-2014

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;
testamentifaccin 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
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.
2. THOSE OF UNSOUND MIND [ART798]
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 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.
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
2. Not necessary that testators 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.
20

The more one owns, the less accurate
his knowledge of his estate expected to
be.
2. Proper objects of ones bounty; &
Testator should know, under ordinary

circumstances, his relatives in the most
proximate degrees, his knowledge
expectedly decreasing as the degrees
become more remote.
2nd SEM 2013-2014
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.
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
testators 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
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 spouses consent.

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.
- 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
21
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 Tomasas 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. Tomasas 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.
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 Tomasas
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.
2nd SEM 2013-2014

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 courts 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 witnesses presented by oppositor, one of which was
the oppositors 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 Tomass death, the latter
was also subjected to a guardianship proceeding, where
22
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 courts 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, 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
2nd SEM 2013-2014

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
testatrixs 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.
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.
23

- 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
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.
2nd SEM 2013-2014

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 govt.
- 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 Marcelinas 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 Marcelinas savings account. Upon motion of
Marina, an order was issued to eject the occupants of
Marcelinas house. This order alerted Nenita to the
existence of the testamentary proceeding for the
settlement of Marcelinas 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.
- A will written in a language that is not known to the testator
is void.
Abangan v. Abangan
- The CFI admitted to probate Ana Abangans will.
- The said document, duly probated as Ana Abangans 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.
24
2nd SEM 2013-2014
- 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 Abangans 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 testators 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 testators
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.
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 testators
thumbprint a signature within the
contemplation of the article? YES, on
the authority of Payad v. Tolentino and
Matias v. Salud, the testators
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, UNLESS it is the testators 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 testators
presence, and
ii. By the testators express
direction
What the agent must write need not
be alleged in the will itself that agent
25
2nd SEM 2013-2014
wrote the testators name under the

latters express direction
The essential thing, for validity, is that
the agent write the testators name,
nothing more. It would be a good thing,
but not required, for the agent to
indicate the fact of agency or authority.
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.
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.
3. Testator, or his agent, must sign every page,
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 nondispositive
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.
2. Attested and subscribed by at least three
credible witnesses in the presence of the

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
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 testators 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.
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.
26

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
of
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
anothers
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
Par2 Art805 No statement that the testator and
the witnesses must sign every page in one
anothers 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 testators 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
2nd SEM 2013-2014

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 testators mark.
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 decedents 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 testators 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
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 latters express direction.
- The other party however argued that such fact need not be
mentioned because although Atty. Javier wrote the name
27

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
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 testators 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
2nd SEM 2013-2014

- 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 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.
28

- 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
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
2nd SEM 2013-2014
- 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.
- 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.
29

- 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
clauses failure to state the number of pages used in writing
the will.
- Attestation consists in witnessing the testators 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
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
2nd SEM 2013-2014
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 decedents death, her niece Consuelo Precilla,
filed a petition for the probate of the decedents
holographic will and for the latters appointment as the
special administratrix of the decedents 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 decedents being fitted
with aphakic lens, the latters vision remained capable of
viewing 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
decedents will would have required the reading of the will
twice (once by one of the witnesses, and once by the
notary).
30

- 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 testators 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.
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
testators 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
2nd SEM 2013-2014
himself (as when he is illiterate) and enabling him to

object if they do not accord with his wishes.
Rino read the testators 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
testators 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
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 anothers
presence should be considered a FATAL
31
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.
2nd SEM 2013-2014
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 testators
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 testators 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
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 testators 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 courts 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.
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.

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
32
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.
- 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.
2nd SEM 2013-2014

- 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 testators 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. CaponongNoble 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 courts Resolution.
Hence, this appeal.
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, Abadas 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, Alipios testimony sufficiently proves
that Abada speaks the Spanish Language.
Whether the will has an attestation clause.
33
2nd SEM 2013-2014
- 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.
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]. Blacks 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.
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.
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
3. SIGNED BY TESTATOR
Must signature be at the wills 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
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.
34

- 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.
2nd SEM 2013-2014
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.
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 23 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.
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 Melecios 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.
- 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,
CASES
Azaola v. Singson
35

- 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.
- 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 Seo 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 voters affidavit, but failed
2nd SEM 2013-2014
to as the same was already destroyed and no longer

available.
The third, the deceaseds niece, claimed that she had
acquired familiarity with the deceaseds 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 latters 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 Ramonals 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.
- 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 deceaseds 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 voters
affidavit for verification as it was no longer available.
- The deceaseds 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.
36

- 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.
- 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 oppositors
evidence that Felicidad did not and could not have
executed such holographic will.
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
2nd SEM 2013-2014
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 testators 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 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
37

because the best and only evidence is the handwriting of
the testator in said will.
2nd SEM 2013-2014
CASE
Kalaw v. Relova
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.
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 testators 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.
- 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 decedents 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 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
38

in conformity with those which this Code
prescribes.
2nd SEM 2013-2014
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
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.
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
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
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
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.
39
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.
Ajero v CA
- The holographic will of Annie San was submitted for

probate.
- Private respondent opposed the petition on the grounds
that: neither the testaments body nor the signature therein
was in decedents 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 decedents
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
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 testators signature, their presence does not invalidate
the will itself. The lack of authentication will only result in
disallowance of such changes.
2nd SEM 2013-2014

- 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 decedents 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.
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.
40
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
2nd SEM 2013-2014

- 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.
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.
WON the witnesses who attested to Gabriels 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.
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 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 partys 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
41
2nd SEM 2013-2014
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 testators death does not prevent
his creditors from being competent
witnesses to his will.
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.
Because the debt or charge is not a testamentary

disposition.
Subsection 5 Codicils and Incorporation

By Reference
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
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 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
42

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.
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
2nd SEM 2013-2014

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
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 testators presence,
destruction will become unauthorized.
On the other hand, it may be argued
that the testators presence is
43

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.
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 decedents 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 each.
2nd SEM 2013-2014

- 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.
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.
44
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]
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 testators 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.
2nd SEM 2013-2014

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 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
testators 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.
45
2nd SEM 2013-2014

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.
Wills are revocable ad nutum or at the testators

pleasure. The testator does not need to have a reason
to revoke the will.
However, precisely because the law respects the
testators 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
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.
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
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
ART. 836. The execution of a codicil referring to

aRprevious
will
has the R
effect
of republishing
E-CAP OF
FORMAL
EQUIREMENTS
the will as modified by the codicil.
OF A WILL
1.If the
testator wishes to republish
a will that is void as
ATTESTED/ORDINARY
WILL
to form,
thebe
only
way to republish it is to execute a
a. Must
in writing
subsequent
willin aand
reproduce
[copy toout]
the
b. Executed
language
or dialect known
testator
dispositions of the original will. Mere reference to the
c. Subscribed by the testator or his agent in his
prior will in the subsequent will is not enough.
presence and by his express direction at the end

thereof, in the presence of the witnesses
A will is void as to form if it does not comply with the

d. Attested and subscribed by at least 3 credible
requirements
of Arts804-818; 810-814; 818-819.
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
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.
46
b) Blind read to him twice, once by a
subscribing witness and another time by the
notary before whom it is acknowledged.
2nd SEM 2013-2014

1. VOID for a reason other than a formal defect,
or
2. Previously REVOKED
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 testators 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 testators 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.
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.
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 2 nd 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
If the testator wishes to Republish a will that is either:
47

then the possibility of its probate is foreclosed, unless
of course a copy survives.
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 2nd 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 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 oppositors
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.
2nd SEM 2013-2014

- 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 Mamuyacs last will has indeed been cancelled
and revoked and therefore not admissible to probate.
- 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
Gago v. Mamuyac
48
2nd SEM 2013-2014

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 testators death
will refer to the intrinsic validity of the
testamentary dispositions.
- 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.
- 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.
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 wills
extrinsic and formal validity only.
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 testators 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 testators 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
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.
49

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 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
2nd SEM 2013-2014

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
- 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 share in the
conjugal estate to his second wife, Tecla, and, should Tecla
predecease him, as was the case, his share would be
assigned to spouses Gallanosa. Pedro Gallanosa was
Teclas son by her first marriage who grew up under the
care of Florentino. His other properties were bequeathed to
his protg Adolfo Fortajada.
50

- Upon his death, a petition for the probate of his will was
wile. Opposition was registered by Florentinos brother,
nephews and nieces.
- After a hearing, where the oppositors did not present any
evidence, the Judge admitted the will to probate.
- The testators 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.
- 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
2nd SEM 2013-2014

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 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 courts
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;
51

(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
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, 818819 and 829-821
2.
3.
TESTATOR INSANE OR MENTALLY

INCAPABLE AT TIME OF EXECUTION
Articles 798 801 on testamentary capacity
and intent
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.
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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.
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.

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.
52

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.
oA will is a testator speaking after death. All doubts
must be resolved in favor of the testators 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.
- 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.
o
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.
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 Montaa, Sr. moved to
dismiss the probate proceedings on the ground that the will
was void because Leodegaria cannot validly dispose of her
husbands share.
- Said motion was granted by the probate court.
- Petitioner impugned the order of dismissal claiming that
Atty. Montaa 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.
are of dubious legality, the trial court acted correctly in
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passing upon the wills intrinsic validity even before the
formal validity had been established.
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
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
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.
53

- When the testator came back to the Philippines in 1918,
Rosario followed, as her heart did dictate, and kept close
until the testators death in 1919.
- Undue influence is said to have been exerted over the
testators 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
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.
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- 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.
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.
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.
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
54
2nd SEM 2013-2014
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.
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 testators intention.
The basic rule in testamentary succession always
is respect for and compliance with the testators
wishes.
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 ones 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 testators oral declarations.
If it is not possible to resolve the ambiguity, the
testators 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.
55
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 of my estate A, B, C
and D, of which A will get 1/3 and B is to get .
The shares of C and D are unspecified. Are they
to divide equally the remaining portion of the of
the estate, after deducting As and Bs portions
[The remainder is 5/12 of ?]
YES, because the article talks about heirs
instituted without designation of shares. A and B
have been 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.
2nd SEM 2013-2014

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
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.
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.
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
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.
56

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-Meez, Isagani Cruz, Alberto Cruz, and Luz
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,
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.
2nd SEM 2013-2014

- 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.
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.
57
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.
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 testators 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 HEIRS SHARE
.
P TOTAL DISPOSED
DISPOSABLE
P TOTAL ESTATE
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.
Manresas 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.
Castans 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:
2nd SEM 2013-2014

1.
2.
3.
There was a compulsory heir in the

direct line
Such heir was instituted in the will
The testamentary disposition given
to such heir was less than her
legitime
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 heirs 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 recipients 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.
If the heir is not mentioned in the will nor was a
recipient of a donation inter vivos from the
58
2nd SEM 2013-2014

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.
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.
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 childs
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.
Acains logic is that since an adopted
child is given by law the same rights as a
legitimate child, vis--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.
2. Are
ILLEGITIMATE DESCENDANTS OR
ASCENDANTS within the coverage of
compulsory heirs in the direct line?
Manresa YES, Scaevola NO.
Manresas 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
testators 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
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
59
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.
2nd SEM 2013-2014

- Upon Maria Gerardos 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 2 nd 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 Bibianos estate, which was given in
usufruct to Maria, by filing an action for the recovery of
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
fathers 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
Bibianos 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 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.
60

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 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 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, Segundos
children (Constantino and his brothers & sisters) would
2nd SEM 2013-2014

receive Nemesios 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 testators 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 decedents 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
neither instituted as heirs nor are expressly disinherited."
Disinheritance, in turn, "is a testamentary disposition
61
2nd SEM 2013-2014

That would be solving one problem by
creating another.
As correctly stated by Art907, it is
testamentary dispositions that must be
reduced if they impair or diminish the
legitimes of compulsory heirs.
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 HEIRS

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.
To make the compulsory heirs qua
compulsory heirs bear the reduction
would mean reducing their own legitimes
a patent absurdity.
Senator Tolentino comments that article should

be 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.
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
Kind of
Heir
PREDECEASE
TN
R
INCAPACITY
TN
R
RENUNCIATION
TN
R
DISINHERITANCE
TN
R
COMPULSORY
VOLUNTARY
NA
NA
62

LEGAL
NA
NA
TN Transmits nothing
R - Representation

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 latters 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 Jorges 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 testators
descendants.
- Jorge Rabadilla died, and his spouse and children
succeeded him.
- Now, Maria Belleza filed a complaint against Jorges 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 Alejas heirs.
- 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.
2nd SEM 2013-2014

- 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.
- 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 Alicias deceased
husband.
- There was also a deed of extrajudicial settlement where
Rebecca Viado-Non and the late Leah Viado (without
Delia Viados participation) waived their rights and interests
63

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.
2nd SEM 2013-2014
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.
Art. 857. Substitution is the appointment of

another heir so that he may enter into the
inheritance in default of the heir originally
instituted.
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
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.
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.
SECTION 3 SUBSTITUTION OF HEIRS
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
Simple substitution is really a form of conditional
institution.
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.
64

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 heirs predecease is that the substitute
killed him?
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.
2nd SEM 2013-2014
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 and B gets . They are
reciprocally substituted. If A predeceases the
testator, B will substitute and get the share of A
[] in addition to his share, so in total he gets .
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 , B gets 1/3 and C gets 1/6. If a
predeceases the testator, B and C will acquire As
share in the proportion of 2:1 because their
respective testamentary shares are and 1/6.
Should B predecease, A and C will get his portion
in the proportion of 3:1 because their respective
shares are and 1/6. Should C predecease, A
and B will get Cs 1/6 portion in the proportion of
3:2 for the same reason.
65

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
testators 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 fiduciarys
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
testators death, his right thereto VESTS
at that time and merely becomes subject
to a period, and that right passes to his
own heirs should he die before the
fiduciarys 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
2nd SEM 2013-2014

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
fiduciarys discretion, which means the
delivery
should
be
upon
the
FIDUCIARYS 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 testators 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 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 10241034.

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.
66
2nd SEM 2013-2014
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.
(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. 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. 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 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 testators death, and this applies not only to
the fiduciary but to the second heir as well.
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 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;
Thus, the 2nd heir need not survive the first heir, if the
2nd heir dies before the first heir, the 2 nd heirs 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.
67
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
2nd SEM 2013-2014

in order that he may apply or invest
the same according to secret
instructions communicated to him by
the testator.
2. Perpetual prohibition to alienate, and even a
Damage or Deterioration to Property

If caused by a fortuitous event or ordinary wear
and tear fiduciary is not liable
If caused by fiduciarys fault or negligence
fiduciary is liable.
temporary one, beyond the limit fixed in article

863.
If there is a fideicomisaria, the limit is the
first heirs lifetime.
If there is no fideicomisaria, the limit is
20 years.
ART. 866. The second heir shall acquire a right

to the succession from the time of the
testators death, even though he should die
before the fiduciary. The right of the second
heir shall pass to his heirs.
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.
In connection with Art863 on element of

fideicommissary that both heirs must be living and
disqualified to succeed at the time of the testators
death.
The second heirs right vests upon the testators
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 heirs 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
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.
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.
68
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 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.
2nd SEM 2013-2014
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 coheir 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 testators 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 testators
death.
Fideicommissary substitution should be

expressly provided for in the will

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
submitted an inventory of the estate. (look at the case for
the inventory)
69

- 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 widows 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 1 st 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.
2nd SEM 2013-2014
- 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.
- Vicentes 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.
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.
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."
Araas v. Araas
PCIB v. Escolin
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.
70
- Linnie Jane Hodges died in Iloilo leaving a will wherein she

bequeathed all of her propertied to her husband, Charles
Newton Hodges.
- The will contained a disposition saying at the death of my
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 and sisters, share and share alike.
- Charles was appointed executor, when he died Joe
Hodges and Fernando Mirasol replaced him, which in turn
was replaced by PCIB pursuant to an agreement of all the
heirs of Hodges.
- The Higdons, composed of brothers and sisters of Linnie
now claims their share to her estate.
- PCIB, however, contends that there was no substitution in
this case and that the testamentary disposition in favor of
the brothers and sisters are inoperative and invalid.
Whether there is substitution.
- None. There is no vulgar substitution because there is not
provision in the will for either: 1. predecease of the testator
by the designated heir, 2. refusal or 3. incapacity of the
latter to accept the inheritance as required by art. 859.
- There is neither a fideicommissary substitution because no
obligation is imposed thereby upon Charles to preserve the
estate or any part thereof for anyone else.
2nd SEM 2013-2014

SECTION 4 CONDITIONAL TESTAMENTARY
DISPOSITIONS AND TESTAMENTARY
DISPOSITIONS WITH A TERM
GENERAL PROVISIONS
ART. 871. The institution of an heir may be made
conditionally, or for a certain purpose or
cause.
3 KINDS OF TESTAMENTARY DISPOSITIONS

1. Conditional dispositions
2. Dispositions with a term
3. Dispositions with a mode [modal dispositions]
Inaccuracies in Section heading and wording of this

article
Incomplete Section Heading should include4
modal dispositions
Incomplete wording of Article does not include
dispositions with a term
Definitions
CONDITION defined obliquely in Art1179 par1.
Whether the disposition in favor of the brothers and sisters is

inoperative
- No. The brothers and sisters of Mrs. Hodges are not
substitutes for Charles because, under her will, they are
not to inherit what Hodges cannot, would no or may not
inherit, but would inherit what he would not dispose of from
his inheritance.
- Therefore, they are also heirs instituted simultaneously
with Charles, subject to certain conditions, partially
resolutory insofar as Hodges was concerned and
correspondingly suspensive with reference to his brothers
and sisters-in-law.
- Hence, while Charles could completely and absolutely
dispose of her estate during his lifetime, all his rights to
what may remain upon his death would then go his
brothers and sisters-in-law.
- If no obligation is imposed upon the first heir to preserve
the property and to transmit it to the second heir, then
there is no fideicomisaria.
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.
TERM defined obliquely in Art1173 pars 1 & 3

Art. 1193. Obligations for whose fulfillment a day certain has
been fixed, shall be demandable only when that day
comes.
Obligations with a resolutory period take effect at
once, but terminate upon arrival of the day certain.
A day certain is understood to be that 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 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
71

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 testators will. This article is a
logical consequence of that principle.
This article is echoed by Art904 par2.
2nd SEM 2013-2014

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 latters 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 Caucin Muciana since this condition,

assuming it is validly imposed, is NEGATIVE in
nature, a Caucin 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.
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 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 grantors 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
ART. 875. Any disposition made upon the

condition that the heir shall make some
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 heirs.
72
2nd SEM 2013-2014
What is declared void it is not merely the condition

that is declared void but the testamentary disposition
itself which contains the condition.
b) E
if the condition was already

complied with at the time the heir learns
of the testators death, and the
condition is of such a nature that it
cannot be fulfilled again.
c) Constructive compliance Art883 par2
condition is deemed fulfilled.
ART. 876. Any purely potestative condition

imposed upon an heir must be fulfilled by
him a soon as he learns of the testators
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.
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 testators death
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 testators 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
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.
73

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 testators 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.
2nd paragraph the property shall be in the executors

or administrators custody until the heir furnishes the
caucion muciana.
Procedural
rules
governing
administrator Rules 77-90 RoC.
appointment
of
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.
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.
2nd SEM 2013-2014

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.
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.
74

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 heirs right vests in dispositions with a

term, the heirs right vests upon the testators 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 testators 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
2nd SEM 2013-2014
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
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;
75
o That in case of Jorges 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 Alejas command, Maria shall immediately seize
the lot and turn it over to Alejas 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 Jorges 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.
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 Alejas 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 testatrixs 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 Alejas near descendants.
- In this case, Aleja did not make Jorges 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
Alejas 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:
2nd SEM 2013-2014
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.
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.
76
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 spouses 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.
2nd SEM 2013-2014

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.
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 Josephs 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
Josephs 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 brothers
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 testators 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 testators 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
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.
77
2nd SEM 2013-2014

Death of either spouse during pendency
of a petition for Legal Separation
Dismissal of the Case.
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.
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 represented only by legitimate
descendants. [Art902 and 992]
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 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 decedents 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
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 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.
78
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.
2nd SEM 2013-2014
DIFFERENT COMBINATIONS OF COMPULSORY HEIRS

CODE
LC
COMBINATION
Legitimate
Children Alone
SHARE
of estate divided
equally [Art888]
CODAL PROVISION
NOTES
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.
Adopted Child has the same rights as LC

If there is more than 1 legitimate child, the
of the estate shall be divided equally among
them.
If there are legitimate children and
grandchildren, the nearer descendants
exclude the farther, so as long as there are
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
79
2nd SEM 2013-2014

REPRESENTATION.
But if ALL the legitimate children
RENOUNCE, the grandchildren inherit in their
own right and the 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
Child and
Surviving
Spouse
of the estate to the

legitimate child
of the estate to the
surviving spouse
[taken from the free
disposable portion of
the estate]
[Art892 par1]
Art. 892. If only one legitimate child or

descendant of the deceased survives, the
widow or widower shall be entitled to onefourth 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.
LCSS
Legitimate
Children and
Surviving
Spouse
of estate to
legitimate children
Share equal to that of
1 child for the
surviving spouse
[taken from the free
disposable portion of
the estate]
[Art892par2]
Art. 892. If only one legitimate child or

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.
LCIC
Legitimate
Children and
Illegitimate
Children
of estate to the
legitimate children
of the share of 1
legitimate child to the
illegitimate children
[Art176 FC]
CODE
1LCICSS
COMBINATION
One legitimate
child, illegitimate
children and
surviving
spouse
SHARE
of estate to
legitimate children
Each illegitimate
child will get of the
share of a legitimate
child
of estate to the
surviving spouse,
whose share is
preferred over those
of the illegitimate
children, which shall
be reduced if
necessary [Art895]
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]
Illegitimate child only gets half the share of a
legitimate child. In case total of the shares of
all illegitimate children exceed the amount of
the estate, their shares shall be reduced
equally. The shares of the legitimate children
cannot be reduced.
CODAL PROVISION
NOTES
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,
In case total of the shares of all illegitimate

children exceed the amount of the estate,
their shares shall be reduced equally. The
shares of the legitimate children and the
surviving spouse cannot be reduced.
80
2nd SEM 2013-2014
and that the legitime of the surviving spouse

must first be fully satisfied.
LCICSS
Legitimate
children,
illegitimate
children and
surviving
spouse
of estate to
legitimate children
Each illegitimate
child will get of the
share of one
legitimate child
A share equal to that
of 1 legitimate child
for the surviving
spouse, whose share
is preferred over
those of the
which shall be
reduced if necessary.
[Art895]
Art. 895. The legitime of each of the

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
In case total of the shares of all illegitimate

children exceed the amount of the estate,
their shares shall be reduced equally. The
shares of the legitimate children and the
surviving spouse cannot be reduced.
LP
Legitimate
parents alone
of estate [Art889]
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
There is NO RIGHT OF REPRESENTATION

in the Ascending Line.
If the one of the legitimate parents
PREDECEASE or is INCAPACITATED to
inherit, his/her share accrues to the other
parent [tama ba?]
LPIC
Legitimate
parents and
illegitimate
children
of estate to
legitimate parents
of estate to
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.
For the illegitimate children or descendants,

the sharing shall depend on whether death
occurred before or during the effectivity of the
Family Code.
LPSS
Legitimate
parents and
surviving
spouse
of estate to
legitimate parents
of estate to
surviving spouse
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.
CODE
LPICSS
SS
COMBINATION
Legitimate
parents
illegitimate
children and
surviving
spouse
Surviving
spouse alone
SHARE
of estate to the
legitimate parents
of estate to the
illegitimate
children
1/8 of estate to the
surviving spouse
of the estate
or 1/3 if the
marriage,
being in
articulo mortis,
falls under
Art900 par 2
CODAL PROVISION
NOTES
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 oneeighth of the estate.
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

Family Code.
81

[Art900par1]
SSIC
Surviving
spouse and
illegitimate
children
1/3 of estate to
surviving
spouse
1/3 of estate to
illegitimate
children
of estate to
surviving
spouse
of estate to
illegitimate
parents
[Art903]
SSIP
Surviving
spouse and
illegitimate
parents
IC
Illegitimate
children alone
of estate
[Art901]
IP
Illegitimate
parents alone
of estate
[Art903]
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 onethird 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.
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.
Art. 903. The legitime of the parents who have
an illegitimate child, when such child leaves
neither legitimate descendants, nor a 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.
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.
Art. 903. The legitime of the parents who have
neither legitimate descendants, nor a 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.
2nd SEM 2013-2014

Family Code.

Family Code.
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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 Nacarios 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 each to the deceased husband,
two daughters and grandchild.
- Petitioner daughter-in-law now seeks reconsideration.
1ST SEM 2006- 2007

- 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 widows 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.
W/N a widow is an intestate heir of a mother-in-law.
Jen Laygo 3D
Digests 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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Whether or Not Paraguya is entitled to the lot subject to a
right of repurchase
- SC held that Paraguya is entitled to the 2 nd 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 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
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]
The latter may freely dispose of the

remaining half, subject to the rights of
illegitimate children and of the surviving
2. Division by line.
Equal sharing the legitimate children share the 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
the tine, great grandchildren cannot inherit unless all
the children and grandchildren renounce.
Jen Laygo 3D
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.
Note also, there is no right of representation in the

ascending line.
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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 estate is divided
equally between the maternal and paternal lines,
but the 2 maternal grandparents must share the
portion of the maternal line [they get 1/8 each]
while the sole paternal grandparent gets the whole
portion of the paternal line.
ART. 892. If only one legitimate child or

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.
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.
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 for the legitimate child and 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.
Termination of Marriage by REAPPEARANCE of prior

Spouse / Decree of ANNULMENT or ABSOLUTE
NULLITY of marriage
Jen Laygo 3D
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
LEGITIMATE CHILDREN / SURVIVING SPOUSE

The sharing is for the children collectively and for the
spouse, equivalent to that of each of the legitimate
children or descendants.
Determination of surviving spouses 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
childs share.
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
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1ST SEM 2006- 2007
SUCCESSION REVIEWER
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 spouses share still be computed on the
basis of the childrens share had they
accepted? If so, then when will the word or
descendants in the second paragraph of this
article ever be operative?
ART. 895. The legitime of each of the

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.
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
This fourth shall be taken from the free

portion of the estate.
LEGITIMATE ASCENDANTS / SURVIVING SPOUSE

- the sharing is for the ascendants collectively and
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.
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.
Jen Laygo 3D
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
for the illegitimate child, for the surviving spouse, and
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 for the
legitimate children collectively, a share equal to that of
one legitimate child for the surviving spouse, and 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 the share of one legitimate child. Example 5 legitimate children and total estate is
1M. of estate [500,000] divided by 5 so
1 Legit child 100,000
Natural child 50,000
Spurious child 40,000
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
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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.
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 onefourth 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.
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 for the legitimate parents collectively
and 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.
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 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
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.
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.
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
Jen Laygo 3D
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 onehalf of the hereditary estate of the deceased
spouse, and the testator may freely dispose
of the other half.
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.
LEGITIMATE PARENTS / ILLEGITIMATE CHILDREN /

SURVIVING SPOUSE the sharing is for the
legitimate parents collectively, for the illegitimate
children collectively and 1/8 for the surviving spouse.
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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 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.
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.
ILLEGITIMATE PARENTS ALONE they get of the

estate. Note that in the illegitimate ascending line, the
right DOES NOT go beyond the parents.
ILLEGITIMATE PARENTS / SURVIVING SPOUSE

the sharing is for the parents collectively and 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. 903. The legitime of the parents who have

neither legitimate descendants, nor a
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.
Jen Laygo 3D
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RESERVA TRONCAL
Art. 891. The ascendant who inherits from his

descendant any property which the latter may
have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to
reserve such property as he may have
acquired by operation of law for the benefit of
relatives who are within the third degree and
who belong to the line from which said
property came.
PROCESS 3 Transmissions Involved

1. First Transfer by gratuitous title, from a person to
his descendant, brother or sister.
2. Second Transfer by operation of law, from the
transferee in the first transfer [prepositus] to
another ascendant [reservista]. It is this second
transfer that creates the reserva.
3. Third Transfer from the transferee in the second
transfer [reservista] to the relatives within the 3rd
degree of the Prepositus, coming from the line of
the Origin.
If there are only two transmissions, there is no

reserva [Gonzales v CFI]
The Reserva Troncal

Origin
Reservista
By Gratuitous
Title
Reservatarios
(Relative w/in
3rd degree of
Prepositus)
By Operation
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
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 familys patrimony might pass
gratuitously to outsiders through the accident of
marriage and untimely death.
Jen Laygo 3D
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a)
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 descendant

without an issue.
[prepositus]
died
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 3 rd degree

belonging to the line from which said
property came [reservatarios].
o These relatives, called the reservatarios or
reservees, are those that are within the 3rd
degree of the line of the Origin.
2 BASIC RULES
I. No inquiry is to be made beyond the Origin/
Mediate Source. It does not matter who the
owner of the property was before it was
acquired by the Origin.
II. All the relationships among the parties must
be legitimate. The provisions of Art891 only
apply to legitimate relatives.
4 PARTIES TO THE RESERVA TRONCAL
1. ORIGIN OR THE MEDIATE SOURCE
o He is either the ascendant or a brother or sister
of the Prepositus.
o Ascendant from any degree of ascent.
o Brother/Sister 2 Schools of Thought
Jen Laygo 3D
b)
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.
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.
2. 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]
o He is an ascendant of the Prepositus, of
whatever degree. The Reservista must be an
ascendant other than the Origin/ Mediate
Source [if the latter is also an ascendant].
o The law is clear - it refers to the Origin/ Mediate
Source as another ascendant. If these two
parties are the same person, there would be no
reserva troncal.
o Should the Origin/Mediate Source and the
Reservista belong to Different Lines?
- Example: A receives by donation a parcel
of land from his paternal grandfather X.
Upon As death, the parcel passes by
intestacy to his father Y [Xs son]. The
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
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SUCCESSION REVIEWER
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, Manresas 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 reservaristas death,
he qualifies as such, even if he was
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
Jen Laygo 3D
1ST SEM 2006- 2007

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 3 rd 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
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.
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1ST SEM 2006- 2007
SUCCESSION REVIEWER
- 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 reservistas 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 reservistas
death.
C. The right of ownership is alienable, but
subject to the same resolutory condition.
D. The reservistas right of ownership is
registerable.
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.
Jen Laygo 3D
- 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 3 rd
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.
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 reservistas 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.
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1ST SEM 2006- 2007
SUCCESSION REVIEWER
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

Reservistas 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
reservable property from the reservista. This is
not true. The reservatario is not the reservistas
successor mortis causa nor is the reservable
property part of the reservistas 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 reservistas 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 reservistas estate,
it is not taken into account in determining
Jen Laygo 3D
the legitimes of the reservistas 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
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 reservistas
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 is extinguished by:
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1ST SEM 2006- 2007
SUCCESSION REVIEWER
1.
2.
3.
4.
5.
6.
Death of the Reservista

Death of ALL the Reservatarios
Renunciation by ALL the Reservatarios,
provided that no other reservatario is born
subsequently
Total fortuitous loss of the reserved property
Confusion or merger of rights, as when the
reservatarios acquire the reservistas right by
a contract inter vivos
Prescription or adverse possession
CASES
Gonzales v. CFI
- 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 onethird 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 mothers 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 Legardas
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
reservable properties which Mrs. Legarda could not
bequeath in her will. This was dismissed.
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.
Jen Laygo 3D
- 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 2 nd 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
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.
Legardas 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 Estebans parents died while he was still young, Salustia
and her sister, Celedonia brought up Esteban, Jr. Salustia,
Estebans 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;
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SUCCESSION REVIEWER
- 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
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 Concordiaa 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
Jen Laygo 3D
1ST SEM 2006- 2007

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 Julianas marriage to
Francisco. Segunda was treated and publicly exhibited as
Julianas 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.
- 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. Wih his second wife, Benita, he had two
children named Fortunator and Candelaria.
- Upon his death, the properties were left amoung 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 Banita (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 of the same
be adjudicated to them, and the other half to the appellees,
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SUCCESSION REVIEWER
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.
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 fathers death.
- The father left a will instituting all his children from both
marriages and Severina as the universal heirs.
Jen Laygo 3D
1ST SEM 2006- 2007

- Apolonio III died ahead of his mother and the latter
succeeded to all the sons 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
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.
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Edroso v. Sablan
Sienes v. Esparcia
-
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 Franciscos 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 latters 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 Gutangs 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.
Jen Laygo 3D
- The reservatorios have a right of expectancy over the

property. The expectancy ripens into ownership if the
reservatorios survive the reservists.
- 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 reservistas 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.
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- 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.
- 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 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 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.
WON, all relatives of the praepositus within the 3 rd 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 defendantsappellees 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 3 rd 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.
Jen Laygo 3D
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
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 onehalf (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
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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
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 2 nd property to Villa Honorio which
later transferred and assigned the same to Laguna AgroIndustrial.
- 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.
Jen Laygo 3D
- NO. The fact remains that the affidavit of self-adjudication

executed by Consuelo stating the source of the properties
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 Joses
death, he named his wife Marcelina as his only heir.
- When Joses 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.
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 testators 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 testators 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 Arts915923, 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.
Art.
904. The testator cannot deprive his

compulsory heirs of their legitime, except in
cases expressly specified by law.
Jen Laygo 3D
The Reserva Troncal
Art. 905. Every renunciation or compromise as

regards a future legitime between the person
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SUCCESSION REVIEWER
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 predecessors death, the heirs 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
Jen Laygo 3D
1ST SEM 2006- 2007

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 decedents 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.
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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
decedents 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 decedents 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 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
Jen Laygo 3D
something in advance on account of his share in the

estate, and that the predecessors 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.
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.
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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 testators gratuitous dispositions,
thus
A. First, reduce pro rata the non-preferred legacies
and devises [Art911 (2)], and the testamentary
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]
Jen Laygo 3D
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 onehalf 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
RULES
1.
2.
If the extent of reduction is LESS THAN of

the value of the thing it should be given to
the devisee.
If the extent of reduction is 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.
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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
decedents 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.
- 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 deceaseds 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.
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 Epifanios death, he donated
some three parcels of land in favor of Tupas Foundation,
Inc.
- 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
inofficious insofar as it prejudiced her legitime, therefore
reducible by such proportion as might be deemed justified
and the resulting deduction delivered to her.
- The lower court contended that a) Article 900 relied upon by
plaintiff is not applicable because the properties which were
disposed of by way of donation were no longer part of his
hereditary estate at the time of his death b) the donated
properties were Epifanio's capital or separate estate; and
(3) Tupas Foundation, Inc. being a stranger and not a
compulsory heir, the donation inter vivos made in its favor
was not subject to collation under Art. 106 1.
Whether or not the lower court decided correctly.
- SC held in the negative.
- First, although the court recognized the right of individuals
to donate, the same 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
Jen Laygo 3D
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.
REQUISITES OF A VALID DISINHERITANCE

1.
It must be made in a Will

- Must be formally valid and admitted to probate
2.
It must be for a Cause specified by law under

Articles 916 in relation to Articles 919-921
- For Descendants [Article 919]
a) Guilty of an Attempt Against the Life of the
Testator or the latters spouse, descendants
or ascendants
b) Accused Testator of Crime punishable by 6
years or more, and the accusation is found to
be Groundless
c) Convicted of Adultery or Concubinage with
Spouse of the Testator
d) By Fraud, Violence, Intimidation or Undue
Influence causes Testator to Make Will or
Change 1 already made.
e) Refusal without justifiable cause to support
the parent or ascendant who disinherits
f)
Maltreatment of testator by word/deed
g) Leads dishonorable or disgraceful life
h) Conviction of a crime carrying civil interdiction
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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
is ineffective disinheritance under article 918.
- All the disinherited heir need do is deny the
cause and the burden is thrown upon those
who would uphold the disinheritance.
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.
Jen Laygo 3D
1ST SEM 2006- 2007
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 1 st 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 on whether the
testator gave away the free portion through
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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.
o
o
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]
1.
Has been found Guilty of an Attempt Against

the Life of the Testator or the latters spouse,
descendants or ascendants
o The word attempt here is used nontechnically and should not be construed to
Jen Laygo 3D
o
o
2.
limit the provision to the attempted stage of

the felony.
All stages of commission are included
whether
attempted,
frustrated,
or
consummated.
The felony, obviously, must be an intentional
one.
FINAL CONVICTION is required.
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 [?]
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?
4.
By Fraud, Violence, Intimidation or Undue

Influence causes the Testator to Make a Will or
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
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SUCCESSION REVIEWER
receive the same needs it for maintenance, but it shall
not be paid except from the date of judicial or extrajudicial 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 latters spouse,
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].
Jen Laygo 3D
1ST SEM 2006- 2007

o Same question must the disinheritance be
subsequent to the conviction?

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,
(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.
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 276277 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
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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
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
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.
Jen Laygo 3D
Paragraphs 2, 3, 4, 5 and 7 are the same grounds for

disinheritance of a descendant or child.

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.
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.
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d)
e)
f)
g)
h)
i)
j)
Final judgment sentencing the

respondent to imprisonment of more than
6 years, even if pardoned.
Drug addiction or habitual alcoholism of
the respondent
Lesbianism or homosexuality of the
respondent
Contracting by the respondent of a
subsequent bigamous marriage, whether
in the Philippines or abroad
Sexual infidelity or perversion
Attempt by the respondent against the
life of the petitioner
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
heir which reveals the testators 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.
Jen Laygo 3D
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.
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
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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.
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.
Jen Laygo 3D
1ST SEM 2006- 2007
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.
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
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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.
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.
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 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.
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.
Jen Laygo 3D
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 persons 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:
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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 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

testators 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.
Jen Laygo 3D
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]

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.
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The choice is irrevocable.
Provisions suppletorily governing Articles 1199-1205,
on alternative obligations.
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 testators 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 testators 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
Jen Laygo 3D
and other circumstances shall be taken into

consideration.
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 legatees 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 testators 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 decedents 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
Demandability
Pure and
Determinate
Pure and
Generic
Upon
Testators
death
Upon
Testators
death
Jen Laygo 3D
When
Ownership
Vests
Upon Testators
death
a. if from
testators estate
upon testators
death
b. if acquired
Fruits
Upon the
testators death
[under Art948]
Upon determination, unless
testator provides
otherwise
[Art949]
With a
Suspensive
Term
Upon the
arrival of the
term
With a
Suspensive
Condition
Upon the
happening of
the condition
from a 3rd
person upon
acquisition
Upon arrival of
the term, but the
right to it vests
upon the
testators death
[under Art878]
Upon the
testators death,
if the condition is
fulfilled [under
Art1187]
Upon the arrival

of the term
[implied from
Art885]
Upon the
happening of the
condition, unless
testator provides
otherwise
[Art884 in rel. to
Art1187]
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. 948. If the legacy or device is of a specific

and determinate thing pertaining to the
testator, the legatee or devisee acquires the
ownership thereof upon the death of the
testator, as well as any growing fruits, or
unborn offspring of animals, or uncollected
income; but not the income which was due
and unpaid before the latter's death.
From the moment of the testator's death,
the thing bequeathed shall be at the risk of
the legatee or devisee, who shall, therefore,
bear its loss or deterioration, and shall be
benefited by its increase or improvement,
without prejudice to the responsibility of the
executor or administrator.
Art. 949. If the bequest should not be of a specific
and determinate thing, but is generic or of
quantity, its fruits and interests from the time
of the death of the testator shall pertain to the
legatee or devisee if the testator has
expressly so ordered.
Art. 950. If the estate should not be sufficient to
cover all the legacies or devises, their
payment shall be made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the
testator to be preferential;
(3) Legacies for support;
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(4) Legacies for education;
(5) Legacies or devises of a specific,
determinate thing which forms a part of
the estate;
(6) All others pro rata.
Order of Preference among Legacies and Devises in
case the Estate is Not Sufficient for All of them
1. Remuneratory legacies or devises
2. Legacies or devises declared by the testator to be
preferential
3. Legacies for support
4. Legacies for education
5. Legacies or devises of a specific, determinate
thing which forms a part of the estate
6. All others, pro rata
Article 950 and Article 911
Article 911 also contains a rule for reduction of

legacies and devises and the order of preference
there is different: it simply provides that all the nonpreferred legacies/devises will be reduced pro rata,
and the preferred legacies/devises are reduced last.
It is a rule different from that set forth in Art950.
Possible reconciliation between the 2 articles each

article can be given its own area of applicability.
o Article 911 will apply if reductions have to be
made because the LEGITIMES have been
impaired, i.e. if the legacies/devises have
exceeded the disposable portion
o Article 950 will apply if the reason for the
reduction is not the impairment of legitimes,
i.e. there are no legitimes because there are
no compulsory heirs or the legitimes have
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 testators 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
Jen Laygo 3D
1ST SEM 2006- 2007

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.
Although the efficacy of a legacy or devise vests upon
the testators 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.
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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
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]
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
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 grantors 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 testators death.
o Fortuitous loss after the testators death will
not constitute revocation because legally,
the disposition takes effect upon death.
o Therefore, fortuitous loss after the testators
death will simply be an instance of res
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 testators 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
Jen Laygo 3D
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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
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 persons 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.
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.
Belen v. BPI
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.
Jen Laygo 3D
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,
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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
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
Jen Laygo 3D
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
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 greatgrandparent.
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.
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DESCENDING
iii.
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]
i. Descending Unites the head of the family
with those who descend from him [Article
965 par2]
ii. Ascending binds a person with those
from whom he descends [Article 965 par3]
b)
Collateral Degrees among persons who are not

ascendants or descendants but come from a
common ancestor [Article 964 par3]
i. Direct and Collateral importance of
distinction: the direct is preferred over the
collateral.
ii. Descending direct and Ascending direct
importance of distinction the descending
is preferred over the ascending.
DIRECT LINE
DEGREE
COLLATERAL LINE
COMPUTATION OF DEGREES
A. Direct Line there is no legal limit to the number
of degrees for entitlement to intestate succession.
The practical limit is of course, human mortality.
o Mode of Counting Degrees in Direct Line
- One generation = one degree
- Parent to child = 1 degree
- Grandparent to Grandchild = 2 degrees
- Great-Grandparent to Great-Grandchild
= 3 degrees
B.
Collateral Line computation of degree is

important in the collateral line because intestate
succession extends only to the FIFTH [5th]
DEGREE of Collateral relationship (Art1010)
o Mode of Counting Degrees in the Collateral
Line [Art966 par3]
i. From the reference point, ascend to
nearest common ancestor [if there
are more than 1 nearest common
ancestor, choose any one.]
Jen Laygo 3D
ii.
Then descend to the other reference

point
Number of generations constituting
the ascent and the descent is the
degree of the collateral relationship.
o Collaterals by Degrees
- First degree none
- Second degree brothers / sisters
- Third degree
i. Uncles / Aunts
ii. Nephews / Nieces
- Fourth degree
i. First Cousins
ii. Brothers/Sisters of a grandparent [grand-uncles / grandaunts]
iii. Grandchildren of a brother/sister
[grand-nephews/grand-nieces]
- Fifth degree
i. Children of a first cousin
ii. First cousins of a parent
iii. Brothers/sisters of a greatgrandparent
iv. Great grandchildren of a
brother/sister
Art. 967. Full blood relationship is that existing

between persons who have the same father
and the same mother.
Half blood relationship is that existing
between persons who have the same father,
but not the same mother, or the same mother,
but not the same father.
Importance of distinction between full-blood and halfblood relationship with reference to brothers and
sisters and nephews and nieces, there is a ratio of 2:1 for
full-blood and half-blood relationship, respectively.
[Arts1006 and 1008]
With respect to collateral relatives, the full-blood and
half-blood relationship is NOT MATERIAL.
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.
ACCRETION IN INTESTACY
There is accretion in intestacy among heirs of the

same degree, in case of PREDECEASE,
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INCAPACITY or RENUNCIATION of any one of
them. [Art1015]
1) In case of predecease or incapacity,
representation, if proper, will PREVENT
accretion from occurring.
2) Relatives must be in the same kind of
relationship for accretion to take place the
heirs involved must be in the same kind of
relationship to the decedent. This is because
of the principle of the preference of lines in
intestate succession. Thus, there can be no
accretion among a grandchild, a grandparent
and a brother of the decedent [even if they
are all related to him in the 2 nd 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
Jen Laygo 3D
1ST SEM 2006- 2007

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.
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
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person inheriting in anothers 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
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.
B.
C.
Predecease
Incapacity or Unworthiness, and
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]
Representation OF and BY and adopted child an

adopted child can NEITHER represent nor be
represented.
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 2 nd
sentence of Art971, stating that the
representative does not succeed the person
represented but the one whom the person
represented would have succeeded.
B.
The representative need not be qualified to

succeed the person represented [Art971]
C.
The person represented need not be qualified

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.
Thus
X
Legitimate
Illegitimate
A
Legit.
A1
B
Illegit.
A2
Legit.
Illegit.
B1
B2
Should A and B both predecease X, only A1 can

represent A but both B1 and B2 can represent B
Jen Laygo 3D
REPRESENTATION BY GRANDCHILDREN AND

REPRESENTATION BY NEPHEWS/NIECES:
Difference in Rule
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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?
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
Note, Im not sure about the answers, please re-check
Bagamon v Piedad
X has 5 legit kids, 3 of whom have their own kids.
Teotico v. Del Val
X
A
C
C1
D
C2 D1
E
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 Xs 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 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 of the P300,000, or
P150,000 each.
Supposing X dies INTESTATE, all the other facts

being the same, how is Xs estate to be
apportioned?
o A, B, C, D and E are supposed to get 60,000
each [the free portion is of the whole estate
so the free portion is P300,000 divided by 5 kids
= 60,000 each].
o However, since E renounced his share, his
P60k portion will, by ACCRETION, be divided
equally among the rest of the kids of X.
SECTION 2. ORDER OF INTESTATE SUCCESSION
INTESTACY RULES OF EXCLUSION AND CONCURRENCE
1.
HEIRS
EXCLUDE
Legitimate
Children
Parents, Collaterals and

the State
Jen Laygo 3D
CONCUR
The surviving spouse and
ARE EXCLUDED BY
No one
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2.
3.
4.
5.
6.
7.
8.
Illegitimate
Children
Legitimate
Parents
Illegitimate
Parents
Surviving
Spouse
Illegitimate parents,
collaterals and the state
Collaterals and the state
Collaterals and the state
Brothers,
sisters,
nephews and
nieces
Other
Collaterals
The State
Surviving spouse, legitimate

children and the legitimate parents
Illegitimate children and the
surviving spouse
Surviving spouse
No one
Legitimate children
Legitimate and
No one
Collaterals, EXCEPT
brothers, sisters,
nephews and nieces,
and the State
All other collateral
relatives up to 5th degree
and the state
Legitimate children, illegitimate

children, legitimate parents,
illegitimate parents and brothers,
sisters, nephews and nieces.
Surviving spouse
Collaterals remoter in
degree, and the state
No one
Collaterals in the same degree
All others
No one
Everyone
Legitimate & illegitimate

children, and legitimate
& illegitimate parents
COMBINATIONS IN INTESTATE SUCCESSION

HEIR
SHARE
PROVISION
1.
Legitimate
children
Whole estate, equally divided
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.
2.
Legitimate
children and
Illegitimate
children
Whole estate with share of 1

legit child for EACH illegitimate
child
Art. 983. If illegitimate children survive with legitimate children, the shares
of the former shall be in the proportions prescribed by Article 895.
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
children and
surviving spouse
Whole estate, divided equally,

including the surviving spouse
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.
4.
Legitimate
children,
surviving spouse
and illegitimate
children
Whole estate, the spouse getting

the share of 1 legitimate child
and the illegitimate child getting
the share of 1 legitimate child.
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. 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.
5.
Legitimate
parents alone
Whole estate, equally
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.
6.
Legitimate
ascendants
Whole estate, division equally by

line
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
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division shall be made per capita.
Legitimate parents get of the

estate divided equally between
them and the illegitimate children
get of the estate divided also
equally
Legit parents get of the estate
and the surviving spouse gets
the other half
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.
Legit parents get , the surviving

spouse gets and the
illegitimate children get .
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.
10. Illegitimate
children
The whole estate, divided equally
Art. 988. In the absence of legitimate descendants or ascendants, the

illegitimate children shall succeed to the entire estate of the
deceased.
11. Illegitimate
children and
surviving spouse
The illegitimate children get

and the surviving spouse gets
the other
Art. 998. If a widow or widower survives with illegitimate children, such

widow or widower shall 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 spouse
The whole estate
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.
7.
Legitimate
parents and
illegitimate
children
8.
Legitimate
parents and
surviving spouse
9.
Legitimate
parents,
surviving spouse
and illegitimate
children
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. 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.

and illegitimate
parents
Spouse gets of estate,

illegitimate parents get the other
No provision, but by analogy to Art997.

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.

and legitimate
brothers, sisters,
nephews and
nieces
and illegitimate
brother, sisters,
nephews and
nieces
Spouse gets and the

legitimate BSNN get , with the
nephews and nieces inheriting by
representation in proper cases
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.
Spouse gets while illegitimate

BSNN get , with representation
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
16. Illegitimate
parents
The whole estate
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.
17. Illegitimate
parents and any
children
Illegitimate parents are excluded

by the children
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.
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18. Legitimate
brothers and
sisters
Whole estate, half blood gets

of full bloods share [2:1]
Art. 1004. Should the only survivors be brothers and sisters of the full
blood, they shall inherit in equal 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
brothers &
sisters, nephews
& nieces
Whole estate, 2:1 for half blood,

with representation for nephews
and nieces
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. 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

nieces with
uncles and aunts
Uncles and aunts are excluded.

The nephews and nieces get the
whole estate
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.
And the case of Bacayo v Borromeo
21. Illegitimate
brothers and
sisters
22. Illegitimate
brothers &
sisters, nephews
& nieces
23. Nephews and
nieces
Whole estate, 2:1 full and half

blood
No article governing
Whole estate
No article governing
Whole, PER CAPITA, 2:1 ratio
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. 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.
b)
AS TO THE STATE
Assignment and disposition of decedents asses

a) If decedent was a resident of the Philippines
at ANY Time
i. Personal Property to municipality
of last residence
ii. Real Property where situated
Jen Laygo 3D
If decedent was NEVER a resident of the

Philippines where property is situated,
whether real or personal property.
How property is to be used

a) For the benefit of public educational and
charitable institutions in the respective
municipalities/cities
b) Alternatively, at the instance of an interested
party, or motu proprio, court may order
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creation of a permanent trust for the benefit of
the institutions concerned.
SECTION 2.
ORDER OF INTESTATE SUCCESSION
SUBSECTION 1. - Descending Direct Line
Art. 978. Succession pertains, in the first place, to
the descending direct line.
WHO ARE THE INTESTATE HEIRS [not in order]
A. Legitimate Children/Descendants
B. Illegitimate Children/Descendants
C. Legitimate Parents/Ascendants
D. Illegitimate Parents
E. Surviving Spouse
F. Brothers, Sisters, Nephews, Nieces
G. Other Collaterals up to the 5th degree
H. The State
Art.
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.
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
Jen Laygo 3D
1ST SEM 2006- 2007

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
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.
It is 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.
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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, onehalf 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

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,

illegitimate
children
shall
divide
inheritance with them, taking one-half of
estate, whatever be the number of
ascendants or of the illegitimate children.
the
the
the
the
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!
Jen Laygo 3D
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
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:
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- 1. He was an illegitimate child of grandson. He was born
outside of wedlock and while his fathers 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
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.
Jen Laygo 3D
1ST SEM 2006- 2007
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
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
decedents illegitimate daughter, a product of her extramarital 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.
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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.
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
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.
Jen Laygo 3D

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
shall be entitled to one-half of the inheritance,
and the illegitimate children or their
descendants,
whether
legitimate
or
illegitimate, to the other half.
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
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SUCCESSION REVIEWER
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 onefourth of the hereditary estate. . . .'As she gets one-fourth,
therefore, I get 3/4, says Claro.
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 onehalf of the estate of the deceased spouse under Article 996
of the Civil Code.
Pascual v. Pascual Bautista
1ST SEM 2006- 2007
- 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
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
Teodoros 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
Landayan v. Bacani
Jen Laygo 3D
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SUBSECTION 5. - Collateral Relatives
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 laws 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 .
The legitimes of the compulsory heirs are

o A and B as legitimate parents of estate =
P300,000
o Y as surviving spouse of estate = P150,000
In total intestacy, the sharings would have been

[according to Art997]
o A and B to of the estate = P300,000
o Y to of the estate = P300,000
The intended recipient of the undisposed portion is Y

since she is the one to whom the entire free portion
went in total intestacy [since A and B simply got their
legitimes.
Jen Laygo 3D
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 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
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
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1ST SEM 2006- 2007
SUCCESSION REVIEWER
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.
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 IN

TESTAMENTARY SUCCESSION
1) 2 or more persons are called to the same
inheritance, or to the same portion thereof,
pro indiviso
In case of partial intestacy
o Meaning of pro indiviso:
Either the co-heirs are instituted
without individual designation of
shares, ex. I institute A and B to
Abellana v. Ferraris
of my estate. Or
Tioco de Papa v. Camacho
The co-heirs are instituted with the
specification that they share equally
Bicomong v. Almanza
[in equal shares] or that they have
the same fractional sharing for each
[Art1017]. Examples: I institute A, B
and C to of my estate in equal
shares, or I institute A, B and C to
of my estate, each of them to take
1/3 of such .
Will accretion occur if the fractional
sharings of the co-heirs are
CHAPTER 4
unequal? YES. All that the law
PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS
requires is that the institution be pro
indiviso, which means as undivided
or in common. The term does not
import equality of shares. Thus,
accretion will occur even if the
SECTION 1.
sharings are unequal, as long as the
RIGHT OF ACCRETION
result is co-ownership.
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
Jen Laygo 3D
2)
One of the persons thus called die before

the testator, or renounce the inheritance or
be incapacitated to receive it.
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SUCCESSION REVIEWER
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 coheirs 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.
EXCEPTIONS to general rule that accretion should be
proportional
a)
b)
In testamentary succession, if the testator

provides otherwise,
If the obligation is purely persona, and hence
intransmissible.
1ST SEM 2006- 2007

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 testators 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
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
Jen Laygo 3D
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SUCCESSION REVIEWER
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 decedents
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

o The requirement of being alive applies only
at the moment of the decedents 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
Jen Laygo 3D
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. Bs
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.
Art.
For institutions subject to suspensive conditions or

terms, the rules outlined in the previous article apply.
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,
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1ST SEM 2006- 2007
SUCCESSION REVIEWER
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.
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.
Priests 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.
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
latters final illness. Taking Care means
medical attendance with some regularity or
continuity that the possibility of duress or
influence exists.
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.
PERSONS INCAPACITATED TO SUCCEED

1. Priest or minister of the gospel
o Requisites:
a) The will must have been executed
during the testators 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
Jen Laygo 3D
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SUCCESSION REVIEWER
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;
(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.

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,
Jen Laygo 3D
1ST SEM 2006- 2007

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
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
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SUCCESSION REVIEWER
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
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
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1ST SEM 2006- 2007

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 testators 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
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 testators 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.
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SUCCESSION REVIEWER
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,
(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
2) Inducement of a daughter to lead a

corrupt or immoral life
3) Attempt against a daughters 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
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 nonoperative a legal obligation to make an
accusation. There is no such obligation under
the present law.
o However, the Requisites of this paragraph are
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
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.
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 latters will
8.
Person who falsifies or forges a supposed will

of the decedent
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
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EFFECT OF UNWORTHINESS
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SUCCESSION REVIEWER
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.
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?
o Balane says that the better opinion is that it is
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?
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.
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 decedents death
o Because that is when successional rights
vest.
B.
If institution is subject to suspensive condition

1.
Time of the decedents
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.
Balane says this seems unacceptable

because that would make the rules on
unworthiness [which is by operation of law
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SUCCESSION REVIEWER
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 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 transferors title.
Thus, a donee cannot claim the benefit of this

provision, since he did not acquire for value.
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1ST SEM 2006- 2007
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.
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.
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SUCCESSION REVIEWER
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.
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 decedents death. This rule
Jen Laygo 3D
B.
C.
has consequences with respect to acquisitive

prescription, capacity to succeed, representation,
etc.
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 decedents
death.
Conditional Institutions the principle of
retroactivity is not overridden even if the institution
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
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1ST SEM 2006- 2007
SUCCESSION REVIEWER
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:
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. 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.
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. 1046. Public official establishments can

neither accept nor repudiate an inheritance
without the approval of the government.
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.
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.
KINDS OF ACCEPTANCE
A. Express
1. Public Documents or
2. Private Writing
B. Tacit
C. Implied [Art1057]
Art. 1047. A married woman of age may repudiate

an inheritance without the consent of her
husband.
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.
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.
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 wifes 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 spouses 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:
Jen Laygo 3D
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
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SUCCESSION REVIEWER
A.
B.
Par1 Onerous or gratuitous conveyance in favor

of one, some or all of his co-heirs or to a stranger.
This is an act of ownership, which necessarily
implies that the heir has accepted the inheritance.
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 coheirs 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 coheirs 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 coheirs 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 coheirs 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
Jen Laygo 3D
1ST SEM 2006- 2007

amount of their credits. The excess, should
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
heirs 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 heirs heir] accepts his own predecessors
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
decedent whose inheritance the predecessor of the heirs
was unable to accept or renounce?
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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 decedents wishes. Thus, the
term ab intestate in this article refers solely to
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.
Jen Laygo 3D
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.

Avelino v. CA
- The petitioner Maria Socorro is a daughter of Antonio
Avelino, Sr. and Angelina Avelino.
- The private respondents are Angelina, Marias 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.
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SUCCESSION REVIEWER
- 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 Jrs 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
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.
Jen Laygo 3D
1ST SEM 2006- 2007

- 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.
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]
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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
o
2.
3.
Collation as IMPUTATION [subtract]

o This is the process by which donations
inter vivos made by the decedent are
correspondingly charged either to the
donees legitime or against the disposable
portion.
o Articles 909 and 910
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
decedents 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
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

donees 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.
Jen Laygo 3D
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 heirs legitime.
RULES ON IMPUTATION OF
DONATIONS INTER VIVOS:
A. Donations inter vivos to compulsory heirs
o GR: Should be imputed to the heirs 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 donees legitime? The
donation will be imputed to the donees
legitime to the extent of the lefitimes value
and the excess, to the free portion.
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 heirs
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.
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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 coheirs is not prejudiced.
This article applies to 2 instances:
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
Jen Laygo 3D
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.
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 donors child [the donees spouse]. The
donation is one made to a stranger.
B. If the donation is made to the spouse JOINTLY,
one-half belongs to the donors child and should
be treated in accordance with Art1062 and the
other half is the property of the donors 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 division between
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.
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Collation in the sense of COMPUTATION [add].
The expenses mentioned should not even be included in
the computation of the decedents 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 recipients
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
lived in the house and company of his
parents shall be deducted therefrom.
This article states that as a general rule:
o The expenses incurred by the parents for the childs
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
recipients 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.
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
Jen Laygo 3D
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 individuals 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 donors 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.
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 recipients 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 donors estate.
o Similarly, only the things 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 donees 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
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1ST SEM 2006- 2007
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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.
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.
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
Jen Laygo 3D
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
decedents death, because it is from that time the
compulsory heirs right to the inheritance becomes
absolute. From that time therefore the compulsory
heir is entitled to the fruits.
Extent of Right to Fruits
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
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1ST SEM 2006- 2007
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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 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 estates value
or the imputation of the heirs shares.
The distribution can proceed on the items that are not
controverted.
Jen Laygo 3D

Zaragoza v. CA
- Flavio Zaragoza died intestate leaving four children: Gloria,
Zacariaz, Florentino and Alberta.
- 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.
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THE ESTATE
Adan v. Casili
- Felix Adan brought an action for the judicial partition against
his sister Victoria and the latters 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 Felixs 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 mothers 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
Jen Laygo 3D
SUBSECTION 1. - Partition
The immediate effect of the decedents 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 decedents 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 decedents 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 decedents 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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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 causantes lifetime; that would
be a donation inter vivos, not succession.
2. How causante may make the Partition
a. By WILL, or
b.
i.
Jen Laygo 3D
By Act Inter Vivos

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 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 causantes 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.
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
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other children. Under no circumstances should the
legitimes be impaired.
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 coownership. Each co-owner may demand at any time the partition of
the thing owned in common, insofar as his share is concerned.
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.
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.
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
compelling reasons that division should be
ordered, upon petition of one of the co-heirs.
Partition Generally a Matter of Right
Jen Laygo 3D
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
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;
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(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 dissolution equitable.
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 equality in nature, kind
and quality, so that if A gets 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.
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.
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
Jen Laygo 3D
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
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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 decedents 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.
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
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.
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 decedents 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
Jen Laygo 3D
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 ones 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.
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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.
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 coowners.
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 coheirs bound to make good the warranty be insolvent, his
portion shall be borne proportionally by all, including the
one entitled to the warranty: Example -
Jen Laygo 3D
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 total of P45k, having
borne his own share of P3k from As insolvency.
EXCEPTION to right to reimbursement from insolvent

obligor: insolvency that is judicially declared, under the
Insolvency Law, since judicially declared insolvency
extinguishes all obligations.
Art. 1094. An action to enforce the warranty

among heirs must be brought within ten years
from the date the right of action accrues.
Art. 1095. If a credit should be assigned as
collectible, the co-heirs shall not be liable for
the subsequent insolvency of the debtor of
the estate, but only for his insolvency at the
time the partition is made.
The warranty of the solvency of the
debtor can only be enforced during the five
years following the partition.
Co-heirs do not warrant bad debts, if so
known to, and accepted by, the distributee.
But if such debts are not assigned to a coheir, and should be collected, in whole or in
part, the amount collected shall be distributed
proportionately among the heirs.
Credit Assigned to Co-Heir in Partition
The warranty covers only insolvency of the

decedents debtor at the time of partition, not
subsequent insolvency, for which the co-heir takes
the risk.
Foolhardy is the co-heir who will accept a collectible

as part of his share in the partition. A credit, even
under the best of circumstances, is aleatory.
The warranty has a special prescriptive period of FIVE
(5) YEARS.
Bad Debt Assigned to a Co-Heir
A co-heir who accepts a known bad debt as his

share is either a fool or a masochist.
Art. 1096. The obligation of warranty among coheirs shall cease in the following cases:
(1) When the testator himself has made the
partition, unless it appears, or it may be
reasonably presumed, that his intention
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was otherwise, but the legitime shall
always remain unimpaired;
(2) When it has been so expressly stipulated
in the agreement of partition, unless
there has been bad faith;
(3) When the eviction is due to a cause
subsequent to the partition, or has been
caused by the fault of the distributee of
the property.
This article enumerates the instances when there is
NO MUTUAL WARRANTY. It is not accurate to refer to it
as a cessation, since there was none to begin with.
These are
1. Partition by the testator himself save where the
legitime is impaired.
2. Agreement among the co-heirs to suppress the
warranty.
3. Supervening events causing the loss or the
diminution in value.
4. Fault of the co-heir
5. Waiver
(2)
Those agreed upon in representation of

absentees, if the latter suffer the lesion stated in
the preceding number;
(3) Those undertaken in fraud of creditors when the
latter cannot in any other manner collect the
claims due them;
(4) Those which refer to things under litigation if they
have been entered into by the defendant
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.
SUBSECTION 3. - Rescission and Nullity

of Partition
Art. 1097. A partition may be rescinded or
annulled for the same causes as contracts.
CAUSES FOR ANNULMENT
Art. 1390. The following contracts are voidable or
annullable, even though there may have been no
damage to the contracting parties:
(1) Those where one of the parties is incapable
of giving consent to a contract;
(2) Those where the consent is vitiated by
mistake, violence, intimidation, undue
influence or fraud.
These contracts are binding, unless they are
annulled by a proper action in court. They are
susceptible of ratification.
CAUSES FOR RESCISSION
Art. 1381. The following contracts are rescissible:
(1) Those which are entered into by guardians
whenever the wards whom they represent suffer
lesion by more than one-fourth of the value of
the things which are the object thereof;
Jen Laygo 3D
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 . 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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1ST SEM 2006- 2007
SUCCESSION REVIEWER
persons interested; but the latter shall be

proportionately obliged to pay to the person
omitted the share which belongs to him.
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.
OBLIGORS 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

of the compulsory
rescinded, unless it be
bad faith or fraud on
Jen Laygo 3D
with preterition of any

heirs shall not be
proved that there was
the part of the other
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.

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 Sabinas
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
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
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SUCCESSION REVIEWER
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
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.
Jen Laygo 3D
1ST SEM 2006- 2007

- 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 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 coheirs 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
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.
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1ST SEM 2006- 2007
SUCCESSION REVIEWER
- 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.
not assigned shall be paid in cash. The article is not

applicable when such property is devised to all the children.
- Art 1080
Alejandro v. CA
Balanay Jr. v. Martinez
Garcia v. Calaiman
- 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.
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 Montaa, 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 husbands 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.

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.
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
prohibition lasting for the husbands 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
Jen Laygo 3D
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 Macarias 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
Treasurers 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 lots
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-inlaw, apparently she is not one. Socorro derived the right
from her husband, part of whose estate is a share in the
mothers 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.
END OF FINALS REVIEWER
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SUCCESSION REVIEWER
COMPARISON OF RULES ON TESTATE

AND INTESTATE SUCCESSION
RULE
RIGHT OF
ACCRETION
TESTATE
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.
INTESTATE
Art. 1018. In legal succession the
share of the person who
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.
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
SUCCEED
Jen Laygo 3D
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
NOTES
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 coheirs, co-devisees, or colegatees.
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 coheirs shall succeed to it in their
own right, and not by the right of
accretion.
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
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.
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1ST SEM 2006- 2007
SUCCESSION REVIEWER
prescribed in article 41.
ACCEPTANCE
OR
REPUDIATION
OF
INHERITANCE
HALF BLOOD
AND FULL
BLOOD
BROTHERS
AND SISTERS
REPRESENTAT
ION
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
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. 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
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. 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.
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.
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. 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.
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.
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.
Jen Laygo 3D
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Jen Laygo 3D
163

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2nd SEM 2013-2014

Based on Jottings and Jurisprudence on the Law on

ART. 774. Succession is a mode of acquisition

The Code has simplified the concept of succession

7 MODES OF ACQUIRING OWNERSHIP

Overlap of Codal Definition with Art776

For clarity and better correlation, Prof. Balane

And the inheritance which is transmitted through

What are Transmitted by Succession?

Rule Regarding Pecuniary Obligations

pass to the heirs, to the extent that they inherit

In our system therefore, money debts are,

Justice JBL Reyes observed that Philippine rules of

Heir directly and immediately steps into the

Acquisition of estate by universal title but