ATTY.
LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
Wills and
College of Law
Succession
Sept 23 Part 1 – Claros, EJ
IMPOSSIBLE OR ILLEGAL CONDITIONS
What is the effect if the institution is subject to an impossible
condition?
ARTICLE 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.
There are 2 conditions mentioned in Art. 873:
1. Impossible Condition
2. Those contrary to law / illegal conditions
Now, the impossibility here it could be before or after the death of
the testator for as long as it is impossible. It remains to be impossible
of performance. The law says if the institution is subject to
impossible condition, it would be considered as not imposed.
Therefore, just disregard the impossible condition or the illegal
condition and then give effect to the institution.
Example: Impossible Condition
I would give this parcel of land to A, if A will become beautiful.
What if pangit jud sya? Physically impossible. Will A get the
inheritance?
Well, A can invoke Art. 873. That (condition) will be considered as
not imposed.
Example: Illegal Condition
I will give 1M to X, if X will kill Z.
So that is illegal condition.
Now, if you remember in OBLICON, there's also a provision dealing
with impossible conditions.
ARTICLE 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. (1116a)
So, if you remember your OBLICON, when the obligation is subject
to impossible condition, it's not only the condition which annulled it
is also the oblicgation. Therefore, there is no such obligation.
Why is it in OBLICON we don't just disregard the condition just
like in Succession, considered as not written?
In Succession, the consideration for the institution is the
generousity or liberality of the testator. Therefore, we can just
disregard that condition. Because there is something to support the
institution. There is a consideration, which is the liberality of the
testator.
In OBLICON, what is the consideration? Is it gratuitous? or
Onerous? -Onerous
Therefore, if there is an obligation, which is subject to a condition,
you cannot say that we just disregard the condition because the
underlying consideration is the generousity or liberality of the
creditor.
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1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
You cannot say that in OBLICON, in fact, the condition is made part
of the consideration in an obligation. If a consideration is affected
by impossibility or illegality it will affect the very existence of the
obligation. There's nothing else that will support the obligation as a
consideration. That's why in OBLICON, if there's a condition which
is impossible or illegal, the conditional obligation shall be void.
So, that's the distinction.
Discussed by LCYE
MICIANO V. BRIMO
50 PHIL 867 November 1, 1927
FACTS: He made some partition in his estate, and then he made a
provision na: ―the disposition shall be governed by the Philippine
law, not by his national law, he was Turkish; of course, this cannot
be given effect.
Even if the testator says na, ―if my heirs oppose this directive—
that my estate shall be distributed in accordance with Philippine
Law—the heirs will forfeit their inheritance, so ang imohang
institution of the heirs is subject to a condition nga dili nila i-oppose
ang provision sa imohang will,
ISSUE: Now, if an heir opposes that provision, will he forfeit?
RULING: No, because that condition is illegal. Article 16 of the Civil
Code expressly provides that the intrinsic validity of the
testamentary provision shall be governed by the national law of the
decedent. So, that is actually an illegal condition. It will be
considered as not written, and of course, the institution of [heirs/]
the legatee shall be valid .
THE CONDITION NOT TO MARRY
ARTICLE 874. An absolute condition not to contract a first or
subsequent marriage shall be considered as not written unless such
condition has been imposed on the widow or widower by the
deceased spouse, or by the latter‘s ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some
personal prestation may be devised or bequeathed to any person
for the time during which he or she should remain unmarried or in
widowhood. (793a)
What is the rule with respect to a condition not to marry or remarry?
Example: ―I hereby give 10M if you will not marry, or will not
remarry.
Q: Is that valid?
GENERAL RULE: No, as general rule it is illegal.
Why? -Because it encourages people to enter into illicit
relationships. Is it wrong? Is it wrong to engage in illicit relationship?
That's not what the law says. Even if you disagree, our society
symbolizes Marriage as the foundation of the family.
So here, if you will say, I will not marry. No problem! Mag live-in
nalang ko. So that's why it is not allowed. Although here, the law
says: Not to have first or subsequent marriage.
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| Tan N.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
Wills and
College of Law
Succession
How about I will give you 10M if you will not marry X? Is it valid?
Does if fall under the prohibition?
A: Here we have acts of prohibition are not to Marry or not to
remarry. So, that's different. Malay mo, dili ganahan si testator kay
X. So it's his property naman. He can impose conditions so long as
the conditions are not prohibited under the law.
EXCEPTION: If such condition has been imposed on the widow by
the widow‘s spouse/ widow or widower by the deceased spouse, or
by the latter‘s ascendants or descendants.
Example: A and B are spouses.
B —wife, A —husband,
A in his will mentioned, ―I hereby give to B a parcel of land [so
devise] subject to the condition that my wife will not re-marry.‖
Condition: If you will re-marry you will forfeit that land.
That is valid.
The same thing if a parent ni A ang naghatag of land kay B.
I will give you a parcel of land provided that you not remarry if
my son, A dies.
-That is a valid condition. Why? For sentimental reasons.
The family is allowed to keep the property within their line.
For example the husband, what's the reason nganong pwede nya i-
prohibit?
-Mamatay sya, syimpre makuha na ni B ang property and if
mamatay na si A, B is allowed to remarry.
If B will remarry, the very same property from the deceased spouse
will now form part of the absolute community or the conjugal
partnership of gains with the new spouse. So swerte kaayo si new
spouse. Gikan sa previous one, by reason of marriage maadto to sa
lain. So, pwede sya. The law says, the decease spouse or the family
of the decease spouse can actually impose a condition not marry or
remarry. Otherwise, the surviving spouse will forfeit the inheritance.
"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."
The law says it can be given, devised or bequethed for the time
during which he/she is unmarried. Meaning that usufruct, that
allowance can already be enjoyed by the spouse, the surviving
spouse. So if he/she remarry then he/she will forfeit the usufruct or
allowance. Actually it's not only the spouse but anyone.
So, I will give you the usufruct over this property but when you
marry, you will forfeit. So that is not considered as prohibited.
Because the person already enjoys the property in the first place.
So he has already benefited from that property. He can just choose
whether to marry or to continue to receive or benefit from the
property.
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Piodos
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1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
DISPOSITION CAPTATORIA
ARTICLE 875. Any disposition made upon the condition that the
heir shall make some provision in his will in favor of the testator or
of any other person shall be void. (794a)
Are you familiar with this provision? We discussed this before. This
is what we call DISPOSITION CAPTATORIA.
So, I will give to A a parcel of land, provided that A will also give to
me a car.
so there is a condition. It's not actually purely out of liberality
because you expect something in return.
It violates the basic or essential requisite of a will that it should be
UNILATERAL.
Here, the disposition becomes bilateral.
Now the bilateral disposition here must appear in the will itself.
Because for example, A made will. In his will he said I give to B 1
hectare agricultural land.
And then B in his will also says, I give to A my house and lot in
Bolton st. Davao City.
What kind of will we have here? It's what we call a reciprocal or twin
will. Are these wills valid? Yes, they are not prohibited. They are not
joint wills and they do not constitute Dispostion Captatoria.
What if in secret nagsabot si A og si B na tagaan tka sa akoang lang
ha basta tagae ko sa imung house and lot. So mao na ilahang sabot.
Would that will be valid? -Yes. Because for it to be considered a
disposition captatoria, the bilateral disposition must appear in the
will itself.
Here we just have a case of a twin will or a reciprocal will.
POTESTATIVE CONDITION
ARTICLE 876. Any purely potestative condition imposed upon an
heir must be fulfilled by him as soon as he learns of the testator‘s
death.
This rule shall not apply when the condition, already complied with,
cannot be fulfilled again. (795a)
What is a potestative condition? -Going back to OBLICON, it is a
condition where it is purely dependent upon the will of either
party. Whether the debtor or the creditor.
Are potestative conditions imposed in obligations, valid? Yes, as
long as it is not potestative and suspensive on the part of the debtor.
Why? Because if it is potestative, suspensive on the part of the
debtor chances are the debtor will not fulfill that condition. Nobody
wants an obligation.
Example: I will pay you 10M if I will decide to cut my hair. Well,
surely, most probably, the debtor will not cut down his har. Bahalag
unsa na na kataas diha basta dili lang sya kabayad og 10M. So it
tends to make the obligation illusory, that's why it also makes the
conditional obligation void.
But any other potestative condition, on the part of the creditor
(potestative resolutory on the part of the debtor) these are valid.
How about in Succession?
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 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
Wills and
College of Law
Succession
Well, if you are an heir and if it means that your institution will
become effective if you fulfill that potestative condition then you will
fulfill it. So potestative on the part of the heir, legatee or devisee that
would be valid.
What is the rule under Art. 876?
GENERAL RULE: The law says, ―as soon as the heir learns of the
testator‘s death. [After death na.]
Why? Because it is just purely potestative on his part. It's very easy
to fulfill. And even if he fulfills it but he dies ahead of the testator, he
will not get the enheritance or the testator revokes the will. So even
if there's compliance, it's still useless.
EXCEPTION: This rule shall not apply when the condition already
complied with cannot be fulfilled again.
That‘s the exception. If during the lifetime of the testator nacomply
na diay siya ni heir and it is of such manner or character that he
cannot comply with it again.
Example: Ang condition is that iyang kuluton iyang buhok. So kung
iya nang gi-kulot during the lifetime of the testator can it be fulfilled
again? Depende, kung halimbawa nawala to iyang kulot, so
magpakulot syag usab. Pero kung wala pa then it's already
complied with.
As to the manner of compliance, authority say that mere substantial
compliance is sufficient. Why? Because, by subordinating the
fulfillment of the instituion to a potestative condition which is within
the control of the heir, meaning the testator really has confidence on
the heir so mere substantial compliance would be sufficient.
CASUAL AND MIXED CONDTION
ARTICLE 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. (796)
Casual Condition— depends upon chance. (E.g. if it will rain, if there
will be a typhoon)
Mixed Condition— depends partly upon chance and upon the will of
the heir. (E.g. Winning the lotto)
Chance - Includes acts of 3rd persons.
Example: passing the bar exam,
it is actually a mixed condition. Kay kung mu-ingon ka'g casual lang,
so, ayaw na lang mo pag-study, wala man diay pulos kay depends
upon chance man g’yud. No—partly upon chance and partly upon
will— kay kung dili mo mag-study, dili g’yud mo mupasar 99.9%.
WHEN WILL IT BE FULFILLED?
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1ST EXAM COVERAGE
Class Transcription
III – Manresa 2019
The law says:
[1] Any time before or after the death of the testator.
Why? Unlike potestative conditions it is actually harder to fulfill this
condition. Because it has the element of luck. And it would be
unreasonable to subject the heir to such kind of uncertainty.
So if he has already complied with it, well, anyway the real
consideration is the liberality of the testator and he has already
complied with it before or after the death of the testator. That would
be suffiecient.
[2]For example, the condition is already complied with. It has
already existed at the time of the death of the testator. What is the
rule?
The rule is that: If the testator is unaware of the compliance, it
shall be deemed as complied with. Because the presumption is
had the testator known that it was complied he would not have
imposed that condition.
[3] If the testator knew at the time of making the will, that
fulfillment of the condition, it means that the heir has to comply
with it again. Kay kabalo man sya na nahitabo na na sya pero gusto
gihapon niya na iimpose ang condition.
Example 1: Winning the lotto. The (heir) nakadaog na diay og lotto.
And the testator know that he(heir) already won and he still provided
that (condition) in his will, so meaning gusto pa ni testator na
makadaog jud sya og lotto.It is something that can still be done.
Unless it is substantially made sure that it cannot be complied with
again.
Example 2: Becoming a lawyer. So at the time when the condition
was imposed, the heir was already a lawyer and the testator knew
that he was already a lawyer. Does it mean that the heir has to
become a lawyer again? Can you take the bar exam again?
Well, you can take the bar exams twice, thrice, kung wala pa ka
nakapasar. Pero kung nakapasar naka, I don't think you will be
allowed to take the bar exam again.
SUSPENSIVE TERM
ARTICLE 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. (799a)
Before that, we first discuss the what is a suspensive term.
What is a suspensive term? -the same in OBLICON, it is a future
and certain event which will necessarily come although at times we
may not know when.
Examples:
1. I will give to you 10M, 2 years after my death. - 2 years
after the death of the testator. It will necessarily come.
2. I will give you 10M, upon the death of X. -Is that a term or a
condition? Death of X. Will it happen? Certain. Unless X is
immortal, X will surely die. So that is a period or term. Although
we may not know when.
Going back to a condition.
What is a condition? -It is a future and uncertain event.
| Du | Sioson | Alba | Puerin | Claros | Lape |
| Tan N.
 ATTY. LEILANIE YANGYANG-ESPEJO
ATENEO DE DAVAO UNIVERSITY
Wills and 1ST EXAM COVERAGE
Class Transcription
College of Law
Succession III – Manresa 2019

When an institution is subject to a suspensive condition, the

condition has to be fulfilled first, before the inheritance becomes
effective. Before the institution be given effect.

So what if before fulfilling the condition, the heir died?

I will give to you my house and lot in Mintal, Davao City if you pass
the bar exam. And then before that happens, the heir died. What are
the rights of that heir?

Can he transmit his rights to his own heirs? -No

Because the effectivity itself of the institution is made subordinate to
the fulfillment of the condition. Without that condition having been
fulfilled. The inheritance or the institution will not be given effect.

How about in a suspensive term?

The testator said: I will give to A 10M, 2 years after my death. So si

A ang Legatee. A will get 10M 2 years after the death of the testator.
That is a suspensive term. He will have to wait for 2 years before
he can get the legacy.

what of the dies, 6 months after the death of the testator? Will he
have rights? -Yes!

That is provided under Art. 878. It says, it does not prevent the
instituted heir from acquiring his rights and transmitting them to his
heirs even before the arrival of the term.

So meaning, in that case, maghulat lang gihapon ta og 2 years

because that is the term provided for in the will of the testator. After
2 years, because A already died, who will get the inheretance? -It
will be the heirs of A.

Another Example:
Year 2000 - Death of the testator
Will - 2M shall be given to A 2 years after the death of the testator -
- This is a period, the 2 years.

What if 6 months after the death of the testator, A died. What are
the rights of A? Because A already died, after 2 years (the period
provided for) his heirs will get the 2M.

Unlike in Suspensive condition, if heir dies before fulfilling the

condition wala jud syat makuha. Ultimo iyahang heirs walay makuha
because in the first place the institution never became effective.
Becaus the condition was not fulfilled.
Here in a period or term, there's already a right of the instituted heir,
legatee or deivsee but it is just he demandability of the inheritance,
legacy or devise which is being differed because of the period.
Sa condition dili lang ang demandability, kung dli and effectivity
mismo.

Are we not in conflict with what we discussed before that insofar at

the free portion is concerned, there is no right of representation? Are
the heirs of A here representing him? Is this an exercise of the right
of representation?

-This is different because the heir did not predecease the testator.
He survived the testator, although he died before the expiration of
the term. So naa najud syay right. Which was vested from the
moment of the death of the testator and when the he (heir) died that
right pass on to his own heirs. So it is not the right of representation.

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