Table of Contents

2016 Bar Questions ................................................................................................ 1

2015 Bar Questions ................................................................................................ 8
2014 Bar Questions .............................................................................................. 15
CIVIL LAW REVIEW 2013 Bar Questions .............................................................................................. 25

COMPILATION OF BAR
2012 Bar Questions .............................................................................................. 34
2011 Bar Questions .............................................................................................. 50

QUESTIONS AND ANSWERS 2010 Bar Questions .............................................................................................. 67

2009 Bar Questions .............................................................................................. 78
2008 Bar Questions .............................................................................................. 88
2007 Bar Questions ............................................................................................ 101
TOPICS COVERED:
2006 Bar Questions ............................................................................................ 107
Persons and Family Relations
Property 2005 Bar Questions ............................................................................................ 116
Succession 2004 Bar Questions ............................................................................................ 124
2003 Bar Questions ............................................................................................ 129
YEARS COVERED: 1989-2016
2000 Bar Questions ............................................................................................ 135
2002 Bar Questions ............................................................................................ 146
2001 Bar Questions ............................................................................................ 149
SOURCE: UP BQA (Except for 2016)
1999 Bar Questions ............................................................................................ 153
1998 Bar Questions ............................................................................................ 159
1997 Bar Questions ............................................................................................ 165
1996 Bar Questions ............................................................................................ 175
1995 Bar Questions ............................................................................................ 183
1994 Bar Questions ............................................................................................ 191
1993 Bar Questions ............................................................................................ 200
DE GUZMAN . ESTIOKO . LACAP . LIN . PACA . PARAS . REAGO 1992 Bar Questions ............................................................................................ 206
1990 Bar Questions ............................................................................................ 211
1991 Bar Questions ............................................................................................ 215
1989 Bar Questions ............................................................................................ 220

 2016 BAR QUESTIONS Q03
(Persons and Family Relations; Divorce of Marriage by Naturalized

Citizens)

Romeo and Juliet, both Filipinos, got married. After a few years, Juliet got
Q01
word from her mother that she can go to the United States for
(Persons and Family Relations; Effectivity of Laws)
naturalization. Juliet promised she will be back the moment she becomes
Section 1 of PD No. 755 states: “Section I. Declaration of National Policy. –
an American. After sometime, Romeo learned from a friend that Juliet
It is hereby declared that the policy of the State is to provide readily
already became a US citizen and even divorced him to marry a wealthy
available credit facilities to the coconut farmers at preferential rates; that
American businessman. Romeo filed a petition before the Regional Trial
this policy can be expeditiously and efficiently realized by the
Court praying that an order be issued authorizing him to remarry pursuant
implementation of the Agreement for the Acquisition of a Commercial Bank
to Article 26 of the Family Code. Decided the petition with reasons. (5%)
for the Benefit of the Coconut Farmers’ executed by the Philippine Coconut

Authority, the terms of which ‘Agreement’ are hereby incorporated by
ANSWER:
reference; x x x “
The petition shall be granted. While the Philippines does not have a divorce

law,Philippine courts may, however, recognize a foreign divorce decree under
A copy of the Agreement was not attached to the Presidential Decree.
the second paragraph of Article 26 of the Family Code, to capacitate a Filipino

citizen to remarry when his or her foreign spouse obtained a divorce decree
P.D. No. 755 was published in the Official Gazette but the text of the
abroad. [Fujiki v. Marinay, G.R. No. 196049, June 26, 2013] This is upon the
Agreement described in Section 1 was not published. Can the Agreement in
assumption that Juliet is already a US citizen at the time she obtained an
question be accorded the status of a law? Explain. (5%)
absolute divorce decree. If she was still a Filipino at the time she obtained the

said divorce decree, the petition shall be denied, as their marriage is still
ANSWER:
subsisting. Laws relating to family rights and duties, or to the status, condition
No. The Agreement cannot be accorded the status of a law for the lack of the
and legal capacity of person are binding upon citizens of the Philippines, even
requisite publication. Publication is an indispensable condition for the
though living abroad.[ART. 15, Civil Code]
effectivity of a law as held in Tañada v. Tuvera. The publication must be of the

full text of the law since the purpose of publication is to inform the public of
the contents of the law. Mere referencing the number of the presidential
decree, its title or whereabouts and its supposed date of effectivity would not
satisfy the publication requirement. In this case, while the Agreement was
incorporated by reference, Section 1 of P.D. 755, did not in any way
reproduce the exact terms of the contract in the decree. Neither was a copy
thereof attached to the decree when published. Consequently, the
Agreement shall be treated as an ordinary transaction between agreeing
minds to be governed by contract law under the Civil Code. [Cojuangco v.
Republic, G.R. No. 180705, November 27, 2012]

1
 Q04 Q05
(Persons and Family Relations; Marriage; Annulment) (Persons and Family Relations; Property Relations)
Leo married Lina and they begot a son. After the birth of their child, Lina Bernard and Dorothy lived together as common-law spouses although they
exhibited unusual behaviour and started to neglect her son; she frequently are both capacitated to marry. After one year of cohabitation, Dorothy
went out with her friends and gambled in casinos. Lina later had extra- went abroad to work in Dubai as a hair stylist and regularly sent money to
marital affairs with several men and eventually abandoned Leo and their Bernard. With the money, Bernard bought a lot. For a good price, Bernard
son. Leo was able to talk to the psychiatrist of Lina who told him that Lina sold the lot. Dorothy came to know about the acquisition and sale of the lot
suffers from dementia praecox, a form of psychosis where the afflicted and filed a suit to nullify the sale because she did not give her consent to
person is prone to commit homicidal attacks. Leo was once stabbed by Lina the sale.
but fortunately he only suffered minor injuries. Will a Petition prosper?
Explain. (5%) (a) Will Dorothy’s suit prosper? Decide with reasons. (2.5%)

ANSWER: ANSWER:
The petition for declaration of nullity of marriage will not prosper. Sexual Yes. Dorothy’s suit will prosper. Their property regime is governed
infidelity or perversion, and abandonment do not by themselves constitute under the provisions of Article 147 of the Family Code which states
grounds for declaring a marriage void based on psychological incapacity. The that neither party can encumber or dispose by acts inter vivos of his
psychological disorder also does not appear to have juridical antecedence as or her share in the property acquired during the cohabitation and
it does not seem to be in her system even prior to the solemnization of her owned in common without the consent of the other until after the
marriage with Leo. [Dedel v. CA, G.R. No. 151867, January 29,2004] termination of their cohabitation. Her consent is necessary for the
validity of the sale. Since her consent was not obtained, the sale is
void.

(b) Suppose Dorothy was jobless and did not contribute money to the
acquisition of the lot and her efforts consisted mainly in the care
and maintenance of the family and household, is her consent to the
sale a prerequisite to its validity? Explain (2.5%)

ANSWER:
Yes, under the property regime of special co-ownership governed by
the provisions of Article 147 of the Family Code, a party who did not
participate in the acquisition by the other party of any property shall
be deemed to have contributed jointly in the acquisition thereof if
the former's efforts consisted in the care and maintenance of the
family and of the household. Since Dorothy is considered a co-owner,
her consent to the sale a prerequisite to its validity.

2
 Q06 (b) If Pedro is a builder in bad faith, what are the rights given to Juan
(Property; Builder in Good Faith v. Builder in Bad Faith) under the law? Explain. (2.5%)
Pedro brought a parcel of land described as Cadastral Lot No. 123 and the
title was issued to his name. Juan also bought a lot in the same place, which ANSWER:
is described as Cadastral Lot No. 124. Pedro hired a geodetic engineer to If Pedro is a builder in bad faith, he has the right to be reimbursed for
determine the actual location of Lot No. 123 but for some reason, the necessary expenses only. He has no right to be reimbursed for his
engineer pointed to Lot No. 124 by mistake. Pedro hired a contractor to useful expenses. He also does not have the right of retention in either
construct his house and the latter put up a sign stating the name of the case. In this case, Juan can appropriate the house without indemnity
owner of the project and the construction permit number. It took more than as it is not a necessary expense for the preservation of the land. Juan
a year before the house was constructed. When Pedro was already residing can also order the demolition of the house, or compel Pedro to pay
in his house, Juan told him to remove his house because it was built on his the price of the land in addition to damages that can be collected
(Juan’s) lot from Pedro.

Juan filed a Complaint for Recovery of Possession and prayed that the house
be removed because Pedro is a builder in bad faith. Pedro filed his Answer
with Counterclaim that he is entitled to the payment of the value of the
house plus damages because he is a builder in good faith and that Juan is
guilty of estoppel and laches.

(a) If Pedro is a builder in good faith, what are the rights given to Juan
under the law? Explain. (2.5%)

ANSWER:
If Pedro is a builder in good faith, he has the right to be reimbursed
for the necessary expenses and useful expenses he incurred. He also
has the right of retention over the premises until reimbursement of
these expenses. These rights can be exercised should Juan decide to
appropriate as his own the house constructed by Pedro. Juan, as the
true owner of the land, can also oblige Pedro to pay the price of the
land. However, if the fair market value of the land is considerably
more than that of the house, Juan cannot oblige Pedro to buy the
same. In such a case, Pedro shall pay reasonable rent to Juan if Juan
does not choose to appropriate the house. Juan cannot refuse both
options of appropriating the improvement (house) or obliging Juan
to pay the price of the land. He can only demand for such removal, if,
after he has opted to sell his land to Pedro, the latter has failed to pay
the same. Hence, Pedro cannot be compelled by Juan to remove his
house absent any showing that Juan exercised the option of selling
the land to Pedro and the latter failed to pay the same.

3
 Q07 Q08
(Property; Accretion; Avulsion) (Property; Prescription; Laches)
Benjamin is the owner of a titled lot which is bounded on the north by the Joven and Juliana are the owners of a 30-hectare plantation in Cotabato,
Maragondon River. An alluvial deposit of two (2) hectares was added to the covered by a title. One day, a group of armed men forcibly entered their
registered area. Daniel took possession of the portion formed by accretion house and, at gun point, forced them to sign a Deed of Absolute Sale in
and claims that he has been in open, continuous and undisturbed favour of Romeo. Romeo got the title from them and they were ejected
possession of said portion since 1923 as shown by a tax declaration. In 1958, from the house and threatened not to come back or else they will be killed.
Benjamin filed a Complaint for Quieting of Title and contends that the The spouses went to Manila and resided there for more than 35 years. They
alluvium belongs to him as the riparian owner and that since the alluvium never went back to Cotabato for fear of their lives. Word came to them that
is, by law, part and parcel of the registered property, the same may be peace and order have been restored in their former place of residence and
considered as registered property. Decide the case and explain. (5%) they decided to reclaim their land for the benefit of their grandchildren.
Jove and Juliana filed a suit for reconveyance of their property. This was
ANSWER: opposed by the grandson of Romeo to whom the title was eventually
The alluvial property belongs to Daniel. Benjamin should have registered the transferred, on the ground of laches and prescription. Decide the case and
alluvial property so that his title thereon would be protected. The land never rule on the defences of laches and prescription. Explain your answer. (5%)
became registered property, and hence is not entitled or subject to the
protection of imprescriptibility enjoyed by registered property under the ANSWER:
Torrens system. Consequently, it was subject to acquisition through I will rule in favor of Joven and Juliana. Prescription only runs after the cause
prescription by third persons. Since Daniel was in open, continuous, and of vitiation of consent ceases. In this case, the intimidation or violence, which
undisturbed possession of said alluvial property since 1923 under a claim of constitutes the defect of the consent, only ceased after more than 35 years
ownership up to the filing of the action in 1958, he acquired the property [ART. 1391]. It is only at that point that prescription will begin to run. The
through acquisitive prescription. [Grande v. CA, G.R. No. L-17652, June 30, action for reconveyance has therefore not yet prescribed. The defense of
1962] laches is also untenable. Laches has been defined as the failure or neglect, for
an unreasonable and unexplained length of time, to do that which, by
exercising due diligence could or should have been done earlier. It is
negligence or omission to assert a right within a reasonable time, warranting
the presumption that the party entitled to assert his right has either
abandoned or declined to assert it. In this case, Joven and Juliana filed the
suit for reconveyance of their property as soon as they learned that peace
and order have been restored in their former place of residence. There was
no negligence or omission to assert a right within a reasonable time on their
part. Moreover, the doctrine of laches cannot be invoked to defeat justice or
to perpetrate fraud and injustice. They were made to sign the Deed of
Absolute Sale at gun point. Romeo and his heirs should not benefit from such
injustice.

4
 Q16 illegitimate children as mentioned above. The remedy is to amend this
(Succession; Intestate Succession; Iron Curtain Rule) provision of the law.
Don Ricardo had 2 legitimate children – Tomas and Tristan. Tristan has 3
children. Meanwhile, Tomas had a relationship with Nancy, who was also While the New Civil Code may have granted successional rights to illegitimate
single and had the legal capacity to marry. Nancy became pregnant and children, those articles, however, in conjunction with Article 992, prohibit the
gave birth to Tomas, Jr. After the birth of Tomas, Jr., his father, Tomas, died. right of representation from being exercised where the person to be
Later, Don Ricardo died without a will and Tristan opposed the motion of represented is a legitimate child. Needless to say, the determining factor is
Tomas, Jr. to be declared an heir of the deceased since he is an illegitimate the legitimacy or illegitimacy of the person to be represented. If the person
child. Tomas, Jr. countered that Article 992 of the Civil Code is to be represented is an illegitimate child, then his descendants, whether
unconstitutional for violation of the equal protection of the laws. He legitimate or illegitimate, may represent him; however, if the person to be
explained that an illegitimate child of an illegitimate parent is allowed to represented is legitimate, his illegitimate descendants cannot represent him
inherit under Articles 902, 982 and 990 of the Civil Code while he – an because the law provides that only his legitimate descendants may exercise
illegitimate child of a legitimate father – cannot. Civil Law commentator the right of representation by reason of the barrier imposed Article 992. [Diaz
Arturo Tolentino opined that article 992 created an absurdity and v. IAC, G.R. No. L-66574 February 21, 1990]
committed an injustice because while- the illegitimate descendant of an
illegitimate child can represent, the illegitimate descendant of a legitimate
child cannot. Decide the case and explain. (5%)

ANSWER:
The motion of Tomas, Jr. to be declared an heir should be denied. The Iron
Curtain rule bars the succession ab intestato between Tomas, Jr., an
illegitimate child and Don Ricardo.

Article 992 of the New Civil Code 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 the father or mother of said
illegitimate child. They may have a natural tie of blood, but this is not
recognized by law for the purpose of Article 992. Between the legitimate
family and the illegitimate family there is presumed to be an intervening
antagonism and incompatibility. The illegitimate child is disgracefully looked
down upon by the legitimate family; and the family is in turn, hated by the
illegitimate child; the latter considers the privileged condition of the former,
and the resources of which it is thereby deprived; the former, in turn, sees in
the illegitimate child nothing but the product of sin, palpable evidence of a
blemish broken in life; the law does no more than recognize this truth, by
avoiding further ground of resentment.

Article 992 is not unconstitutional. It does not violate the equal protection of
the laws as there is a substantial distinction between legitimate and

5
 Q19 mind of all concerned, it is expedient that the nullity of the marriage
(Persons and Family Relations; Marriage; Marriage License) should be ascertained and declared by the decree of a court of
Brad and Angelina had a secret marriage before a pastor whose office is competent jurisdiction.
located in Arroceros Street, City of Manila. They paid money to the pastor
who took care of all the documentation. When Angelina wanted to go to Other than for purposes of remarriage, no judicial action is necessary
the US, she found out that there was no marriage license issued to them to declare a marriage an absolute nullity. For other purposes, such as
before their marriage. Since their marriage was solemnized in 1995 after but not limited to determination of heirship, legitimacy or illegitimacy
the effectivity of the Family Code, Angelina filed a petition for judicial of a child, settlement of estate, dissolution of property regime, or a
declaration of nullity on the strength of a certification by the Civil Registrar criminal case for that matter, the court may pass upon the validity of
of Manila that, after a diligent and exhaustive search, the alleged marriage marriage even in a suit not directly instituted to question the same
license indicated in the marriage certificate does not appear in the records so long as it is essential to the determination of the case. The clause
and cannot be found. on the basis of a final judgment declaring such previous marriage void
in Article 40 of the Family Code connotes that such final judgment
(a) Decide the case and explain. (2.5%) need to be obtained only for purpose of remarriage.

ANSWER:
The petition for judicial declaration of nullity should be granted.
Absence of marriage license, a formal requisite of marriage, renders
the marriage void. The certification of "due search and inability to
find" issued by the civil registrar enjoys probative value, he being the
officer charged under the law to keep a record of all data relative to
the issuance of a marriage license. Unaccompanied by any
circumstance of suspicion and pursuant to Section 29, Rule 132 of the
Rules of Court, a certificate of "due search and inability to find"
sufficiently proved that his office did not issue marriage license to the
contracting parties. [Republic v. CA, G.R. No. 103047, September 2,
1994]

(b) In case the marriage was solemnized in 1980 before the effectivity
of the Family Code, is it required that a judicial petition be filed to
declare the marriage null and void? Explain. (2.5%)

ANSWER:
A judicial petition to declare the marriage null and void is not
necessary in this case. Jurisprudence under the Civil Code states that
no judicial decree is necessary in order to establish the nullity of a
marriage. A void marriage does not require a judicial decree to
restore the parties to their original rights or to make the marriage
void but though no sentence of avoidance be absolutely necessary,
yet as well for the sake of good order of society as for the peace of

6
 Q20
(Succession; Intestate Succession)
Princess married Roberto and bore a son, Onofre. Roberto died in a plane
crash. Princess later married Mark and they also had a son – Pepito. Onofre
donated to Pepito, is half-brother, a lot in Makati City worth P3,000,000.00.
Pepito succumbed to an illness and died intestate. The lot given to Pepito
by Onofre was inherited by his father, Mark. Mark also died intestate.
Lonely, Princess followed Mark to the life beyond. The claimants to the
subject lot emerged – Jojo, the father of Princess; Victor, the father of Mar;
and Jerico, the father of Roberto.

Who among the three (3) ascendants is entitled to the lot? Explain (5%)

ANSWER:
Jojo, the father of Princess, is entitled to the lot. The property is reservable.
It was acquired by gratuitous or lucrative title by the prepositus Pepito from
the origin Onofre through donation. Pepito’s ascendant, Mark, acquired the
same property by operation of law (intestate succession). Mark then became
a reservista, charged with the duty of reserving the property in favor of the
relatives three degrees removed from the prepositus (Pepito). Jojo is two
degrees removed from Pepito and he belongs to the line from which the
property came. Princess is the common ascendant of Onofre and Pepito, their
mother. Reservistas must be within third degree from the prepositus.

7
 2015 BAR QUESTIONS at the time of their demise. Hence, the joint will produces legal effect even
with respect to the properties situated in the Philippines.


I. PERSONS/SUCCESSION (JOINT WILLS)


c) No, because depecage is a process of applying rules of different states
Alden and Stela were both former Filipino citizens. They were
on the basis of the precise issue involved. It is a conflict of laws where
married in the Philippines but they later migrated to the United States where
different issues within a case may be governed by the laws of different states.
they were naturalized as American citizens. In their union they were able to
In the situation in letter (a) no conflict of laws will arise because Alden and
accumulate several real properties both in the US and in the Philippines. Stela are no longer Filipino citizens at the time of the execution of their joint
Unfortunately, they were not blessed with children. In the US, they executed will and the place of execution is not the Philippines.
a joint will instituting as their common heirs to divide their combined estate
in equal shares, the five siblings and of Alden the seven siblings of Stela.
Alden passed away in 2013 and a year later, Stela also died. The siblings of
Alden who were all citizens of the US instituted probate proceedings in a US
court impleading the siblings of Stela who were all in the Philippines.
II. PERSONS (PROPERTY RELATIONS)
a) Was the joint will executed by Alden and Stela who were
both former Filipinos valid? Explain with legal basis. (3%) Marco and Gina were married in 1989. Ten years later, or in 1999,
Gina left Marco and lived with another man, leaving their two children of
b) Can the joint will produce legal effect in the Philippines with school age with Marco. When Marco needed money for their children's
respect to the properties and of Alden Stela found here? If education he sold a parcel of land registered in his name, without Gina's
so, how? (3%) consent, which he purchased before his marriage. Is the sale by Marco valid,
void or voidable? Explain with legal basis. (4%)
c) Is the situation presented in Item I an example of depecage?
(2%) SUGGESTED ANSWER:
The sale made by Marco is considered void. The parties were married in
SUGGESTED ANSWER: 1989 and no mention was made whether they executed a marriage
a) Yes, the joint will of Alden and Stela is considered valid. Being no settlement. In the absence of a marriage settlement, the parties shall be
longer Filipino citizens at the time they executed their joint will, the governed by absolute community of property whereby all the properties
prohibition under our Civil Code on joint wills will no longer apply to Alden owned by the spouses at the time of the celebration of the marriage as well
and Stela. For as long as their will was executed in accordance with the law as whatever they may acquire during the marriage shall form part of the
of the place where they reside, or the law of the country of which they are absolute community. In ACP, neither spouse can sell or encumber property
citizens or even in accordance with the Civil Code, a will executed by an alien belonging to the ACP without the consent of the other. Any sale or
is considered valid in the Philippines. (Article 816) encumbrance made by one spouse without the consent of the other shall be
void although it is considered as a continuing offer on the part of the
consenting spouse upon authority of the court or written consent of the other
b) Yes, the joint will of Alden and Stela can take effect even with respect spouse. (Article 96 FC)
to the properties located in the Philippines because what governs the
distribution of their estate is no longer Philippine law but their national law

8
 III. PERSONS (RECOGNITION/FILIATION) ALTERNATIVE ANSWER: Yes, I would approve the compromise because
it is no longer considered future inheritance. What the law prohibits is a
Julie had a relationship with a married man who had legitimate children. compromise with respect to future legitime. In this case, the father is already
A son was born out of that illicit relationship in 1981. Although the putative dead so the compromise is considered valid.
father did not recognize the child in his certificate of birth, he nevertheless
provided the with child all the support he needed and spent time regularly
with the child and his mother. When the man died in 2000, the child was
already 18 years old so he filed a petition to be recognized as an illegitimate
child of the putative father and sought to be given a share in his putative
father's estate. The legitimate family opposed, saying that under the Family
Code his action cannot prosper because he did not bring the action for
recognition during the lifetime of his putative father.

a) If you were the judge in this case, would how you rule? (4%)

b) Wishing to keep the peace, the child during the pendency of
the case decides to compromise with his putative father's family by
abandoning his petition in exchange for Yi of what he would have
received as inheritance if he were recognized as an illegitimate child.
As the judge, would you approve such a compromise? (2%)

SUGGESTED ANSWER:
a) If I were the judge, I will not allow the action for recognition filed after
the death of the putative father. Under the Family Code, an illegitimate
child who has not been recognized by the father in the record of birth, or
in a private handwritten instrument, or in a public document and may
prove his filiation based on open and continuous possession of the status
of an illegitimate child but pursuant to Article 175, he or she must file the
action for recognition during the lifetime of the putative father. The
provision of Article 285 of the Civil Code allowing the child to file the
action for recognition even after the death of the father will not apply
because in the case presented, the child was no longer a minor at the
time of death of the putative father.

b) No, I will not approve the compromise agreement because filiation is a
matter to be decided by law. It is not for the parties to stipulate whether
a person is a legitimate or illegitimate child of another. (De Jesus v. Estate
of Dizon 366 SCRA 499) In all cases of illegitimate children, their filiation
must be duly proved. (Article 887, Civil Code)
9
 IV. PERSONS/SUCCESSION (ART. 147/SUCCESSIONAL c) No, because joint adoption is allowed between husband and wife. Even
RIGHTS/ADOPTION) if Bert and Joe are cohabiting with each other, they are not vested with
the right to jointly adopt under the Family Code or even under the
Bert and Joe, both male and single, lived together as common law Domestic Adoption Act. (Section 7, R.A. 8552)
spouses and agreed to raise a son of Bert's living brother as their child without
legally adopting him. Bert worked while Joe took care of their home and the
boy. In their 20 years of cohabitation they were able to acquire real estate
assets registered in their names as co-owners. Unfortunately, Bert died of
cardiac arrest, leaving no will. Bert was survived by his biological siblings, Joe,
and the boy.

a) Can Article 147 on co-ownership apply to Bert and Joe, whereby all
properties they acquired will be presumed to have been acquired by their
joint industry and shall be owned by them in equal shares? (2%)

b) What are the successional rights of the boy Bert Joe and
raised as their son? (2%)

c) If Bert and Joe had decided in the early years of their cohabitation
to jointly adopt the boy, would they have been legally allowed to do so?
Explain with legal basis. (3%)


SUGGESTED ANSWER:

a) No, Article 147 cannot apply to Bert and Joe because the law only applies
to a man and a woman who are capacitated to marry each other who live
together as husband and wife without the benefit of marriage or under a
void marriage. In the case of Bert and Joe, they are both men so the law
does not apply.

b) Neither of the two will inherit from Bert. Joe cannot inherit because the
law does not recognize the right of a stranger to inherit from the
decedent in the absence of a will. Their cohabitation will not vest Joe
with the right to inherit from Bert. The child will likewise not inherit
from Bert because of the lack of formal adoption of the child. A mere
ward or “ampon” has no right to inherit from the adopting parents.
(Manuel v. Ferrer, 247 SCRA 476)

10
 V. PERSONS (PRESUMPTIVE DEATH) VI. PERSONS (PSYCHOLOGICAL INCAPACITY)
Mrs. L was married to a ship captain who worked for an international
maritime vessel. For her and her family's support, she would claim monthly Kardo met Glenda as a young lieutenant and after a whirlwind
allotments from her husband's company. One day, while en route from Hong courtship, they were married. In the early part of his military career, Kardo
Kong to Manila, the vessel manned by Captain L encountered a severe was assigned to different places all over the country but Glenda refused to
typhoon at sea. The captain was able to send radio messages of distress to accompany him as she preferred to live in her hometown. They did not live
the head office until all communications were lost. In the weeks that together until the 12th year of their marriage when Kardo had risen up the
followed, the search operations yielded debris of the lost ship but the bodies ranks and was given his own command. They moved to living quarters in Fort
of the crew and the passengers were not recovered. The insurance company Gregorio. One day, while Kardo was away on official business, one of his
thereafter paid out the death benefits to all the heirs of the passengers and military aides caught Glenda having sex with the corporal assigned as Kardo's
crew. Mrs. L filed a complaint demanding that her monthly allotments driver. The aide immediately reported the matter to Kardo who rushed home
continue for the next four years until her husband may be legally presumed to confront his wife. Glenda readily admitted the affair and Kardo
dead because of his absence. If you were the magistrate would how you rule? sentawayher in anger. Kardo would later come to know the true extent of
(3%) Glenda's unfaithfulness from his aides, his household staff, and former
SUGGESTED ANSWER: neighbors who informed him that Glenda has had intimate relations with
I would rule against Mrs. L. There is no merit in her contention that the various men throughout their marriage whenever Kardo was away on
monthly allotments to her should continue despite the presumptive death of assignment.
the husband. In case of disappearance where there is danger of death, the
person shall be presumed to have died at the beginning of the four (4) year Kardo filed a petition for declaration of nullity of marriage under
period although his succession will be opened only at the end of the four year Article 36. Based on interviews from Kardo, his aide, and the housekeeper, a
period. (Article 391, Civil Code) Since the husband of Mrs. L is presumed to psychologist testified that Glenda's habitual infidelity was due to her
have died at about the time of disappearance, he is no longer entitled to affliction with Histrionic Personality Disorder, an illness characterized by
receive his salary from the day the presumption of death arises. excessive emotionalism and uncontrollable attention-seeking behavior
rooted in Glenda's abandonment as a child by her father. Kardo himself, his
aide, and his housekeeper also testified in court. The RTC granted the
petition, relying on the liberality espoused by Te v. Te and Azcueta v.
Republic. However, the OSG filed an appeal, arguing that sexual infidelity was
only a ground for legal separation and that the RTC failed to abide by the
guidelines laid down in the Molina case. How would you decide the appeal?
(5%)

SUGGESTED ANSWER:

I will resolve the appeal in favor of the Republic. In the case of Dedel v.
Dedel, (G.R. No. 151867 January 29, 2004) the Supreme Court refused to
declare the marriage of the parties void on the ground of sexual infidelity of
the wife Sharon. In case mentioned, the wife committed infidelity with
several men up to the extent of siring two illegitimate children with a
foreigner. The court, however, said that it was not shown that the sexual
infidelity was a product of a disordered personality and that it was rooted in

11
the history of the party alleged to be psychologically incapacitated. Also, the VII. PROPERTY (BUILDERS IN GOOD FAITH)
finding of psychological incapacity cannot be based on the interviews
conducted by the clinical psychologist on the husband or his witnesses and Mr. and Mrs. X migrated to the US with all their children. As they had no
the person alleged to be psychologically incapacitated must be personally intention of coming back, they offered their house and lot for sale to their
examined to arrive at such declaration. (Marcos v. Marcos, 343 SCRA 755; neighbors, Mr. and Mrs. A (the buyers) who agreed to buy the property for
Agraviador v. Agraviador, G.R. No. 170729- December 8, 2010) 128 Million. Because Mr. and Mrs. A needed to obtain a loan from a bank
first, and since the sellers were in a hurry to migrate, the latter told the buyers
that they could already occupy the house, renovate it as it was already in a
state of disrepair, and pay only when their loan is approved and released.
While waiting for the loan approval, the buyers spent .Pl Million in repairing
the house. A month later, a person carrying an authenticated special power
of attorney from the sellers demanded that the buyers either immediately
pay for the property in full now or vacate it and pay damages for having made
improvements on the property without a sale having been perfected.

a) What are the buyers' options or legal rights with respect to
the they expenses incurred in improving the property under
circumstances? (3%)

b) Can the buyers be made to immediately vacate on the
ground that the sale was not perfected? Explain briefly. (3%)
SUGGESTED ANSWER:
a) The buyers here may be deemed possessors or builders in good faith because
they were made to believe that they were allowed to make repairs or
renovation by the sellers themselves. As builders in good faith, they have the
right to seek reimbursement for the value of the improvements in case the
owner decides to appropriate them. They cannot be asked to remove the
improvements because that is not one of the options given by law to the
landowner in case the builder is in good faith.

b) No, the buyers cannot be made to vacate on the ground that the sale was not
perfected for the fact of the matter is that a contract of sale is consensual and
is perfected by mere consent. (Article 1315, Civil Code) In this case, there was
an agreement to deliver a determinate thing for a price certain in money.
When the owners made an offer to sell their property to Mr. and Mrs. A and
the latter accepted the offer, there was already a meeting of the minds
between the parties resulting in the perfection of the contract of sale.

12
 VIII. PROPERTY (CO-OWNERSHIP) IX. PROPERTY (VOID DONATIONS)
X, Y, Z are siblings who inherited a IO-storey building from their parents. They Jose, single, donated a house and lot to his only niece, Maria, who was of
agreed in writing to maintain it as a co-owned property for leasing out and legal age and who accepted the donation. The donation and Maria's
to divide the net profits among themselves equally for a period of 20 years. acceptance thereof were evidenced by a Deed of Donation. Maria then lived
On the gth year, X wanted to get out of the co-ownership so he could get his in the house and lot donated to her, religiously paying real estate taxes
1/3 share in the property. Y and Z refused, saying X is bound by their thereon. Twelve years later, when Jose had already passed away, a woman
agreement to keep the co-ownership for 20 years. Are Y and Z correct? claiming to be an illegitimate daughter of Jose filed a complaint against Maria.
Explain. (3%) Claiming rights as an heir, the woman prayed that Maria be ordered to
reconvey the house and lot to Jose's estate. In her complaint she alleged that
SUGGESTED ANSWER: the notary public who notarized the Deed of Donation had an expired notarial
Y and Z are partly correct. The law provides that none of the co-owners commission when the Deed of Donation was executed by Jose. Can Maria be
shall be obliged to remain in the co-ownership and it is the right of a co-owner made to reconvey the property? What can she put up as a defense? (4%)
to ask for partition of the co-ownership anytime. One exception to the rule SUGGESTED ANSWER:
is if the co-owners agree to keep the thing undivided which period shall not No. Maria cannot be compelled to reconvey the property. The Deed of
exceed ten years. In this case, the agreement to keep the thing undivided Donation was void because it was not considered a public document.
shall be valid at the most for ten years. (Article 494, Civil Code) However, a void donation can trigger acquisitive prescription. (Solis v. CA 176
SCRA 678; Doliendo v. Biarnesa 7 Phil. 232) The void donation has a quality of
titulo colorado enough for acquisitive prescription especially since 12 years
had lapsed from the deed of donation.

ALTERNATIVE ANSWER: Yes, Maria can be made to reconvey the
property. The law provides that no person may give or receive by way of
donation more than what he may give or receive by will. On the assumption
that the property donated to Maria is the only property of Jose, the legitime
of his illegitimate child would be impaired if Maria would be allowed to keep
the entire property. After taking into account the value of the property,
Maria can be made to reconvey the property to the extent necessary to
satisfy the legitime of Jose’s illegitimate daughter provided that the woman
claiming to be Jose’s child can prove her filiation to the deceased.

Maria can set up the defense that the action has prescribed. An action
for revocation of the donation on the ground that it impaired the legitime of
a compulsory heir may only be filed within ten (10) years from the time the
cause of action accrues which is at the time of the death of Jose. The facts
are not clear as to when Jose died but on the assumption that he died ten
years prior to the filing of the action, the same has clearly prescribed.

13
 XI. PERSONS/OBLICON/SALES (MINORITY) XX. LAND TITLES (ATTACK ON TITLE)
Jackie, 16, inherited a townhouse. Because she wanted to study in an A. Mr. and Mrs. Roman and Mr. and Mrs. Cruz filed an application for
exclusive school, she sold her townhouse by signing a Deed of Sale and registration of a parcel of land which after due proceedings was granted by
turning over possession of the same to the buyer. When the buyer discovered the RTC acting registration as land court. However, before the decree of
she was still a minor, she promised to execute another Deed of Sale when she registration could be issued, the spouses Roman and the spouses Cruz sold
turns 18. When Jackie turned 25 and was already working, she wanted to the lot to Juan. In the notarized deed of sale, the sellers expressly undertook
annul the sale and return the buyer's money to recover her townhouse. Was to submit the deed of sale to the land registration court so that the title to
the sale contract void, voidable or valid? Can Jackie still recover the property? the property would be directly issued in Juan's name. Is such a stipulation
Explain. (4%) valid? (2%)
SUGGESTED ANSWER: B. Distinguish a direct attack from a collateral attack on a title. (2%)
The contract of sale was voidable on the ground that Jackie is incapable C. If the title in Item XX.A is issued in the names of the original sellers,
of giving consent at the time of the execution of the sale. (Article 1390 and would a motion filed by Juan in the same case to correct or amend the title in
Article 1327) Jackie can no longer recover the townhouse unit because if a order to reflect his name as owner considered be collateral attack?
contract is voidable on the ground of minority, the action to annul it must be (2%)
filed within four (4) years from attainment of the age of majority. Since Jackie SUGGESTED ANSWER:
was already 25 years old, the action has clearly prescribed because she should a) Yes, because when one who is not the owner of the property sells or alienates
have filed it before she reached the age of 22. (Article 1391, Civil Code) it and later the seller or grantor acquires title, such title passes by operation
of law to the buyer or grantee. (Article 1434, Civil Code)
b) A direct attack on a title is one where the action filed is precisely for the
purpose of pointing out the defects in the title with a prayer that it be

declared void. A collateral attack is one where the action is not instituted for

the purpose of attacking the title but the nullity of the title is raised as a

defense in a different action.
c) No, because Juan is not attacking the title but merely invoking his right as
transferee. Hence, it does not involve a collateral attack on the title.

14
 2014 BAR QUESTIONS
In Republic v. Molina (GR 108763, February 13, 1997), the Supreme

Court ruled that while the interpretations given by the National Appellate

Matrimonial Tribunal (NAMT) of the Catholic Church in the Philippines

should be given great respect by our courts, they are not controlling or
Q1
decisive. Its interpretation is not conclusive on the courts. The courts are
(Persons; Marriage; Declaration of Nullity; National Appellate
still required to make their own determination as to the merits of the case,
Matrimonial Tribunal)
and not rely solely on the finding of the NAMT.
Ariz and Paz were officemates at Perlas ng Silangan Bank (PSB). They

fell in love with each other and had a civil and church wedding. Meanwhile,
It has been held that psychological incapacity as a ground for nullifying a
Paz rapidly climbed the corporate ladder of PSB and eventually became its
marriage is confined to the most serious cases of personality disorders
Vice President, while Ariz remained one of its bank supervisors, although he
clearly demonstrative of an utter insensitivity or inability to give meaning
was short of 12 units to finish his Masters of Business Administration (MBA)
and significance to marriage. The three essential requisites in order for
degree.
psychological incapacity to be appreciated are: 1) gravity, 2) juridical

antecedence, and 3) incurability. In the present case, there was no showing
Ariz became envious of the success of his wife. He started to drink
that the psychological incapacity was existing at the time of the celebration
alcohol until he became a drunkard. He preferred to join his "barkadas";
of the marriage.
became a wifebeater; would hurt his children without any reason; and

failed to contribute to the needs of the family. Despite rehabilitation and

consultation with a psychiatrist, his ways did not change.

After 19 years of marriage, Paz, a devout Catholic, decided to have their
marriage annulled by the church. Through the testimony of Paz and a
psychiatrist, it was found that Ariz was a spoiled brat in his youth and was
sometimes involved in brawls. In his teens, he was once referred to a
psychiatrist for treatment due to his violent tendencies. In due time, the
National Appellate Matrimonial Tribunal (NAMT) annulled the union of Ariz
and Paz due to the failure of Ariz to perform and fulfill his duties as a
husband and as a father to their children. The NAMT concluded that it is for
the best interest of Paz, Ariz and their children to have the marriage
annulled.

In view of the NAMT decision, Paz decided to file a Petition for
Declaration of Nullity of Marriage of their civil wedding before the Regional
Trial Court (RTC) of Makati City using the NAMT decision and the same
evidence adduced in the church annulment proceedings as basis.

If you are the judge, will you grant the petition? Explain. (5%)

No, I will not grant the petition for declaration of nullity of marriage.

15
 Q2 and Rene is not for the purpose of givin ghte property to them as their
(Succession; Wills; Validity of Provision) inheritance, but for them to administer the same for the benefit of his
Crispin died testate and was survived by Alex and Josine, his children descendants’ use in pursute of their education. Thus, this provision is a
from his first wife; Rene and Ruby, his children from his second wife; and legacy for education, which lasts as long as the legatee/s come of age or
Allan, Bea, and Cheska, his children from his third wife. until such legatee/s finish their course.

One important provision in his will reads as follows: Another alternative answer
"Ang lupa at bahay sa Lungsod ng Maynila ay ililipat at ilalagay sa The provision is not valid. Art. 870 of the Civil code provides that “the
pangalan nila Alex at Rene hindi bilang pamana ko sa kanila kundi upang dispositions of the testator declaring all or part of the estate inalienable for
pamahalaan at pangalagaan lamang nila at nang ang sinuman sa aking mga more than 20 years are void.” In this case, the provision “habang panahon”
anak, sampu ng aking mga apo at kaapuapuhan ko sa habang panahon, ay clearly provides for inalienability of the house for more than 20 years;
may tutuluyan kung magnanais na mag-aral sa Maynila o sa kalapit na mga hence, it is void.
lungsod."
Second alternative answer
Is the provision valid? (4%) The provision is valid. The institution of heir in this case is a modal
institution under Art. 882 of the Civil code. In this type of institution, which
The provision imposing the indivision of the property “habang panahon” is present in the case at bar, the ownership of the thing is passed on to the
is invalid. In Santiago v. Santiago (GR 179859, August 9, 2010), a similar heir, except that there is a mode or charge imposed upon the heir. In a
provision appears in the will of the testator. In that case, the court ruled modal institution, the testator states: (1) The object of the institution, (2)
that it is clear that the testator intended the house and lot in Manila be The purpose or application of the property left by the testator, or (3) The
transferred in petitioners’ names for administration purposes only, and that charge imposed by the testator upon the heir (Rabadilla v. CA, GR 113725,
the property be owned by the heirs in common. However, the same case June 29, 2000).
ruled that the condition set by the decedent on the property’s indivisibility
is subject to a statutory limitation provided by Art. 1083 of the Civil code,
which states that the period of indivision imposed by a testator shall not
exceed 20 years. Although the Civil Code is silent as to the effect of the
indivision of a property for more than 20 years, it would be contrary to
public policy to sanction co-ownership beyond the period expressly
mandated by the Civil Code. Thus, the provision leaving the administration
of the house and lot in Manila to Alex and Rene is valid, but the provision
imposing the indivision of the property “habang panahon” is invalid as to
the excess beyond 20 years, it being contrary to Art. 1083 limiting the
period of indivision that may be imposed by a testator to 20 years.

Alternative answer
The provision is valid. Art. 944 of the Civil code provides in part that “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.” In this case,
the intention of the testator in transferring the property in the name of Alex

16
 Q3 Q6
(Property; Donations) (Persons; Marriage; Property Regimes; FC 36)
The Roman Catholic Church accepted a donation of a real property Miko and Dinah started to live together as husband and wife without
located in Lipa City. A deed of donation was executed, signed by the donor, the benefit of marriage in 1984. Ten (10) years after, they separated. In
Don Mariano, and the donee, the Church, as represented by Fr. Damian. 1996, they decided to live together again, and in 1998, they got married.
Before the deed could be notarized, Don Mariano died. Is the donation
valid? (4%) On February 17, 2001, Dinah filed a complaint for declaration of nullity
of her marriage with Miko on the ground of psychological incapacity under
The donation is void. Art. 749 of the Civil code provides that a donation Article 36 of the Family Code. The court rendered the following decision:
of an immovable must be made in a public instrument to be valid. In this
case, it is clear that the deed of donation never became a public instrument "1. Declaring the marriage null and void;
because the donor died before it could be notarized. The deed o donation 2. Dissolving the regime of absolute community of property; and
cannot be notarized after the death of the donor since it is now impossible 3. Declaring that a decree of absolute nullity of marriage shall only be
for him to acknowledge before a notary public. The donation was never issued after liquidation, partition and distribution of the parties’ properties
perfected Thus, the donation is void for not complying with the formalities under Article 147 of the Family Code."
required by law.
Dinah filed a motion for partial reconsideration questioning the portion
of the decision on the issuance of a decree of nullity of marriage only after
Q5 the liquidation, partition and distribution of properties under Article 147 of
(Succession; Preterition) the Code.
What is the effect of preterition? (1%)
If you are the judge, how will you decide petitioner’s motion for partial
(A) It annuls the devise and legacy reconsideration? Why? (4%)
(B) It annuls the institution of heir
(C) It reduces the devise and legacy I will grant the motion for partial reconsideration. Sec. 19(1) of the Rule
(D) It partially annuls the institution of heir on Declaration of Absolute Nullity of Null Marriages and Annulment of
Voidable marriages, which require that the decree of nullity of marriage be
(B) It annuls the institution of heir issued only after the liquidation, partition and distribution of properties,
does not apply to declarations of nullity based on Art. 36 of the Family Code.
The said rule only applies if there was a second marriage which is void
because of non-compliance with the requirements of Art. 40 of the Family
Code. In the case of Diño v. Diño (GR 178044, January 19, 2011), the Court
held that Sec. 19(1) only applies to Articles 50 and 51 of the Family Code,
which are, subsequently applicable only to marriages which are declared
void ab initio or annulled by final judgment under Arts. 40 and 45 of the
Family Code. Since there is no previous marriage in this case and the
marriage was nullified under Art. 36 of the Family Code, Sec. 19(1) of the
said Rules does not apply.

17
 Q11 Q13
(Property; Easements) (Succession; Reserva Troncal)
An easement that can be acquired by prescription: (1%) Esteban and Martha had four (4) children: Rolando, Jun, Mark, and
Hector. Rolando had a daughter, Edith, while Mark had a son, Philip. After
(A) Right of way the death of Esteban and Martha, their three (3) parcels of land were
(B) Watering of an animal adjudicated to Jun. After the death of Jun, the properties passed to his
(C) Lateral and subjacent support surviving spouse Anita, and son Cesar. When Anita died, her share went to
(D) Light and view her son Cesar. Ten (10) years after, Cesar died intestate without any issue.
Peachy, Anita’s sister, adjudicated to herself the properties as the only
(D) Light and view surviving heir of Anita and Cesar. Edith and Philip would like to recover the
properties claiming that they should have been reserved by Peachy in their
behalf and must now revert back to them.

Is the contention of Edith and Philip valid? (4%)

No, their contention is not valid as the property is not subject to reserve
troncal. Under Art. 891 of the Civil Code, the ascendant who inherits from
his descendant any property which the latter may have acquired by
gratuitious 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 3rd degree and who belong to the line
from which the said property came. There is no reserve troncal here
because Anita is not an ascendant or a brother or sister of Jun. Jun cannot
qualify as a prepositus, because the property which he inherited from his
ascendant was not inherited by another ascendant by operation of law.

In Mendoza v. Policarpio (GR 176422, March 20, 2013), the Court ruled
that the lineal character of the reservable property is reckoned from the
ascendant from whom the prepositus received the property by gratuitous
title. In this case, the ownership should be reckoned only from Jun, as he is
the ascendant from whom Cesar inherited the properties. Moreover, Art.
891 of the Civil Code provides that the person obliged to reserve the
property should be an ascendant. Peachy is not Cesar’s ascendant but a
mere collateral relative.

18
 Q14 Q15
(Persons; Personality) (Property; Easements)
A pedestrian, who was four (4) months pregnant, was hit by a bus driver Mr. Bong owns several properties in Pasig City. He decided to build a
while crossing the street. Although the pedestrian survived, the fetus inside condominium named Flores de Manila in one of his lots. To fund the project,
her womb was aborted. Can the pedestrian recover damages on account of he obtained a loan from the National Bank (NB) secured by a real estate
the death of the fetus? (1%) mortgage over the adjoining property which he also owned.

(A) Yes, because of Article 2206 of the Civil Code which allows the During construction, he built three (3) pumps on the mortgaged
surviving heirs to demand damages for mental anguish by reason of the property to supply water to the condominium. After one (1) year, the
death of the deceased. project was completed and the condominium was turned over to the
(B) Yes, for as long as the pedestrian can prove that she was not at fault buyers. However, Mr. Bong failed to pay his loan obligation to NB. Thus, NB
and the bus driver was the one negligent. foreclosed the mortgaged property where the pumps were installed. During
(C) No, because a fetus is not a natural person. the sale on public auction of the mortgaged property, Mr. Simon won in the
(D) No, if the fetus did not comply with the requirements under Article bidding. When Mr. Simon attempted to take possession of the property, the
41 of the Civil Code. condominium owners, who in the meantime constituted themselves into
Flores de Manila Inc. (FMI), claimed that they have earlier filed a case for
(B) Yes, for as long as the pedestrian can prove that she was not at fault the declaration of the existence of an easement before the Regional Trial
and the bus driver was the one negligent. Court (RTC) of Pasig City and prayed that the easement be annotated in the
title of the property foreclosed by NB. FMI further claimed that when Mr.
(Note: Letter A may also be considered correct on account of Art. II, Sec. Bong installed the pumps in his adjoining property, a voluntary easement
12 of the 1987 Constitution, which provides, in part, that “The State …. Shall was constituted in favor of FMI.
equally protect the life of the mother and the life of the unborn from
conception …. “ C and D may also be considered correct) Will the action prosper? (4%)

Yes, the action will prosper. Art. 624 of the Civil Code provides that
when an apparent sign of easement exists between 2 estates established or
maintained by the owner of both, it shall be considered as a title to the
easement should the owner of the 2 properties alienate one of them, unless
at the time the ownership between the 2 estates is divided the contrary is
provided in the deed of transfer or the apparent sing of easement is
removed before the execution of the deed (Privatization and Management
Office v. Legaspi towers 300, Inc., GR 147957, July 22, 2009, 593 SCRA 382).
In this case, neither any showing that the apparent sign of the easement
was removed before the sale on public auction, nor that there was an
agreement that the easement will no longer continue; hence, the
entitlement of FMI to the easement subsists.

19
 Q16 Q17
(Property, Hidden Treasure) (Succession; Partition)
A congregation for religious women, by way of commodatum, is using On March 30, 2000, Mariano died intestate and was survived by his
the real property owned and registered in the name of Spouses Manuel as wife, Leonora, and children, Danilo and Carlito. One of the properties he left
a retreat house. was a piece of land in Alabang where he built his residential house.

Maria, a helper of the congregation discovered a chest in the backyard. After his burial, Leonora and Mariano’s children extrajudicially settled
When she opened the chest, it contained several pieces of jewelry and his estate. Thereafter, Leonora and Danilo advised Carlito of their intention
money. (4%) to partition the property. Carlito opposed invoking Article 159 of the Family
Code. Carlito alleged that since his minor child Lucas still resides in the
(A) Can the chest containing the pieces of jewelry and money be premises, the family home continues until that minor beneficiary becomes
considered as hidden treasure? of age.

No, the chest containing the pieces of jewelry and money may not be Is the contention of Carlito tenable? (4%)
considered as hidden treasure. In the case at bar, there is no indication that
the chest was hidden, only that the helper discovered it in the backyard. No, the contention of Carlito is not tenable. In the case of Patricio v.
And since it is clear that the property where the chest was found belongs to Dario (GR 170829, November 20, 2006), it was provided that to be a
the Spouses Manuel, they are presumed the owner of the chest where the beneficiary of a family home, 3 requisites must concur: (1) they must be
jewelry was found. The lawful ownership of the chest is apparent. among the relationships enumerated in Art. 154 of the Family Code; (2) they
live in the family home, and (3) they are dependent for legal support upon
(B) Who has the right to claim ownership of it? the head of the family. In the said case, the partition of a family home is
allowed despite the objection on the ground that a minor grandchild still
Since it does not come within the purview of hidden treasure, the resides in the premises. Although the 1st 2 requisites are present in this case,
Spouses Manuel have the right to claim ownership over the chest as well as the 3rd is lacking because Lucas, the grandchild, is not dependent for legal
its contents. support upon his grandparents which is the head of the family who
constituted the family home in this case. Lucas still has parents who are
legally obliged to support him. Thus, he cannot be deemed as dependent for
legal support upon the head of the family, who is Mariano.

20
 Q18 Q20
(Property; Rights of Owners) (Persons; Waiver; Special Parental Authority)
Spouses Magtanggol managed and operated a gasoline station on a Mabuhay Elementary School organized a field trip for its Grade VI
1,000 sq.m. lot which they leased from Francisco Bigla-awa. The contract students in Fort Santiago, Manila Zoo, and Star City. To be able to join, the
was for a period of three (3) years. When the contract expired, Francisco parents of the students had to sign a piece of paper that reads as follows:
asked the spouses to peacefully vacate the premises. The spouses ignored
the demand and continued with the operation of the gasoline station. "I allow my child (name of student), Grade – Section, to join the school’s
field trip on February 14, 2014.
One month after, Francisco, with the aid of a group of armed men,
caused the closure of the gasoline station by constructing fences around it. I will not file any claim against the school, administrator or teacher in
case something happens to my child during the trip."
Was the act of Francisco and his men lawful? Why? (4%)
Joey, a 7-year-old student of Mabuhay Elementary School was bitten by
No, the act of Francisco is not lawful. Even when one has a right, such as a snake while the group was touring Manila Zoo. The parents of Joey sued
the right to enjoy his property and to exclude anyone else from the the school for damages. The school, as a defense, presented the waiver
enjoyment of such a person cannot take the law unto his own hands and signed by Joey’s parents.
must still file the proper action in court. Even though Francisco had the right
to fence his property as part of his right to enjoy it, Spouses Magtanggol are Was there a valid waiver of right to sue the school? Why? (4%)
covered by Art. 539 which provides that every possessor has a right to be
respected in his possession despite the lapse of their lease. Although there No, there was no valid waiver of the right to sue the school. Art. 6 of the
is no apparent force or intimidation employed, fencing off the property Civil Code provides that “rights may be waived, unless the waiver is contrary
would prevent Spouses Magtanggol from entering and possessing the to law, public order, public policy, morals, or good customs, or prejudicial to
property. The proper recourse of Francisco is to invoke the aid of a a person with a right recognized by law.” As a general rule, patrimonial
competent court and file an action for unlawful detainer. rights may be waived as opposed to rights to personality and family rights
which may not be made the subject of waiver (Valenzuela Hardwood &
Industrial Supply, Inc. v. CA, GR 102316, June 30, 1997). The 2nd paragraph
of the waiver prohibiting the parent to faile any claim against the school,
administrator or teacher in case something happens to the child during the
trip is against public policy because it removes liability from said school,
administrator, or teacher, and thus, removing the responsibility imposed on
them by Art. 218 of the Family Code.

21
 Q21 Q24
(Property; Accession) (Persons; Marriage; Divorce)
A delayed accession is: (1%) Ted, married to Annie, went to Canada to work. Five (5) years later, Ted
became a naturalized Canadian citizen. He returned to the Philippines to
(A) formation of an island convince Annie to settle in Canada. Unfortunately, Ted discovered that
(B) avulsion Annie and his friend Louie were having an affair. Deeply hurt, Ted returned
(C) alluvium to Canada and filed a petition for divorce which was granted. In December
(D) change in the course of the riverbed 2013, Ted decided to marry his childhood friend Corazon in the Philippines.
In preparation for the wedding, Ted went to the Local Civil Registry of
(B) avulsion Quezon City where his marriage contract with Annie was registered. He
asked the Civil Register to annotate the decree of divorce on his marriage
contract with Annie. However, he was advised by the National Statistics
Q23 Office (NSO) to file a petition for judicial recognition of the decree of divorce
(Persons; Marriage; Requisites) in the Philippines.
After undergoing sex reassignment in a foreign country, Jose, who is
now using the name of "Josie," married his partner Ador. Is the marriage Is it necessary for Ted to file a petition for judicial recognition of the
valid? (1%) decree of divorce he obtained in Canada before he can contract a second
marriage in the Philippines? (4%)
(A) Yes, the marriage is valid for as long as it is valid in the place where
it is celebrated following Article 17 of the Civil Code. No, it is not necessary for Ted to file a petition for judicial recognition of
(B) Yes, the marriage is valid if all the essential and formal elements of the decree of divorce he obtained in Canada before he can contract a 2nd
marriage under the Family Code are present. marriage in the Philippines. Ted, who is already a foreigner being a
(C) No, the marriage is not valid because one essential element of naturalized Canadian citizen, will be required to submit a certificate of legal
marriage is absent. capacity to contract marriage issued by the proper diplomatic or consular
(D) No, the marriage is not valid but is voidable because "Josie" officials to obtain a marriage license.
concealed her real identity.

(C) No, the marriage is not valid because one essential element of
marriage is absent.

22
 Q25 Q27
(Persons; Persumptive Personality; Succession; Wills) (Property; Co-ownership)
Mario executed his last will and testament where he acknowledges the Fe, Esperanza, and Caridad inherited from their parents a 500 sq. m. lot
child being conceived by his live-in partner Josie as his own child; and that which they leased to Maria for three (3) years. One year after, Fe, claiming
his house and lot in Baguio City be given to his unborn conceived child. Are to have the authority to represent her siblings Esperanza and Caridad,
the acknowledgment and the donation mortis causa valid? Why? (4%) offered to sell the leased property to Maria which the latter accepted. The
sale was not reduced into writing, but Maria started to make partial
The acknowledgement of the unborn child is effective because a will payments to Fe, which the latter received and acknowledged. After giving
may still constitute a document which contains an admission of illegitimate the full payment, Maria demanded for the execution of a deed of absolute
filiation. The donation to the conceived child is also valid provided that the sale which Esperanza and Caridad refused to do. Worst, Maria learned that
child is born later on and that it comply with the formalities required of a the siblings sold the same property to Manuel. This compelled Maria to file
will (Art. 728, Civil Code). A fetus has a presumptive personality for all a complaint for the annulment of the sale with specific performance and
purposes favorable to it, provided it be born under the condition specified in damages.
Art. 41. However, there has to be compliance with the formal requisites for
a valid last will and testament. If you are the judge, how will you decide the case? (4%)

I will decide in favor of Maria but only as to the share of Fe, and dismiss
the complaint with respect to Esperanza and Caridad. The property in
question is co-owned by Fe, Esperanza and Caridad, since it has not yet
been divided among them. Art. 493 of the Civil Code provides that each co-
owners shall have full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or mortgage it,
provided that the effect of such alienation or mortgage shall be limited to
the portion which may be allotted to him in the division upon the
termination of the co-ownership. The sale by Fe to Maria would therefore
be binding on her 1/3 interest, but not on the 2/3 interest of Esperanza and
Caridad because their shares were not validly sold to Maria in the absence
of a written authority to Fe to sell their respective portions to Maria as
required by Art. 1874 of the Civil code. Fe can only sell whatever property
right she has, ie: 1/3 ideal portion or undivided interest in the 500 sq. m. lot.

The sale to Manuel is valid as to the 2/3 share of Esperanza and Caridad.

23
 Q28
(Persons; Adoption)
Spouses Esteban and Maria decided to raise their two (2) nieces, Faith
and Hope, both minors, as their own children after the parents of the
minors died in a vehicular accident.

Ten (10) years after, Esteban died. Maria later on married her boss
Daniel, a British national who had been living in the Philippines for two (2)
years.

With the permission of Daniel, Maria filed a petition for the adoption of
Faith and Hope. She did not include Daniel as her co-petitioner because for
Maria, it was her former husband Esteban who raised the kids.

If you are the judge, how will you resolve the petition? (4%)

I will deny the petition for adoption. According to RA 8552 or the
Domestic Adoption Act of 1998, a husband and wife must jointly adopt
except in the following cases: 1) if one spouse seeks to adopt the legitimate
child of the other; 2) if one spouse seeks to adopt his/her own illegitimate
child, provided that the other spouse signified their consent thereto; or 3) if
the spouses are legally separated from each other.

In this case, since Daniel and Maria do not fall under any of the
exceptions enumerated above, they must jointly adopt as required by law.

24
 2013 BAR QUESTIONS (Narcissistic Personality Disorder) existing already before the marriage,
incurable and serious enough to prevent Neil from performing his essential
I. marital obligations.

You are a Family Court judge and before you is a Petition for the Dr. Chan’s report contains mere conclusions. Being a drunkard, a
Declaration of Nullity of Marriage (under Article 36 of the Family Code) filed womanizer, a gambler and Mama’s boy merely shows Neil’s failure to
by Maria against Neil. Maria claims that Neil is psychologically incapacitated perform his marital obligations. In a number of cases, the Supreme Court did
to comply with the essential obligations of marriage because Neil is a not find the existence of Psychological Incapacity in cases where the
drunkard, a womanizer, a gambler, and a mama's boy- traits that she never respondents showed habitual drunkenness (Republic v. Meljar ), blatant
knew or saw when Neil was courting her. Although summoned, Neil did not display of infidelity and irresponsibility (Deldel v. CA, or being hooked to
answer Maria's petition and never appeared in court. gambling and drugs (Republic v. Tanyag- San Jose).

To support her petition, Maria presented three witnesses- herself, Dr. ALTERNATIVE ANSWER:
Elsie Chan, and Ambrosia. Dr. Chan testified on the psychological report on
Neil that she prepared. Since Neil never acknowledged n9r responded to Yes. The petition should be granted. The personal medical or
her invitation for interviews, her report is solely based on her interviews psychological examination of respondent is not a requirement for a
with Maria and the spouses' minor children. Dr. Chan concluded that Neil is declaration of psychological incapacity. It is the totality of the evidence
suffering from Narcissistic Personality Disorder, an ailment that she found presented which shall determine the existence of psychological incapacity
to be already present since Neil's early adulthood and one that is grave and (Marcos v. Marcos). Dr. Chan’s report, corroborated by Maria’s and
incurable. Maria testified on the specific instances when she found Neil Ambrosia’s testimony, therefore, sufficiently proves Neil’s psychological
drunk, with another woman, or squandering the family's resources in a incapacity to assume his marital obligations.
casino. Ambrosia, the spouses' current household help, corroborated
Maria's testimony.

On the basis of the evidence presented, will you grant the petition? (8%)
(Marriage-Psychological Incapacity)

SUGGESTED ANSWER:

No. The petition should be denied. The psychological incapacity

under Art. 36 of the Family Code must be characterized by (a) gravity, (b)
judicial antecedence, and (c) incurability. It is not enough to prove that the
parties failed to meet their responsibilities and duties as married persons; it
is essential that they must be shown to be incapable of doing so, due to some
psychological (not physical) illness (Republic v. CA and Molina, G.R. No.
108763. February 13, 1997)

In this case, the pieces of evidence presented are not sufficient to

conclude that indeed Niel is suffering from a psychological incapacity

25
 IV. lessor refuse to reimburse said amount, the lessee may remove the
improvements, even though the principal thing may suffer damage thereby.
Anselmo is the registered owner of a land and a house that his friend
Boboy occupied for a nominal rental and on the condition that Boboy would (B) Can Boboy be held liable for damages for removing the
vacate the property on demand. With Anselmo's knowledge, Boboy improvements over Anselmo’s objection? (4%)
introduced renovations consisting of an additional bedroom, a covered
veranda, and a concrete block fence, at his own expense. SUGGESTED ANSWER:

Subsequently, Anselmo needed the property as his residence and thus No. Boboy cannot be held liable for damages. The lessor, Anselmo,
asked Boboy to vacate and turn it over to him. Boboy, despite an extension, refused to reimburse one-half of the value of the improvements, so the lessee
failed to vacate the property, forcing Anselmo to send him a written Boboy, may remove the same, even though the principal thing may suffer
demand to vacate. damage thereby. If in removing the useful improvements Boboy caused more
impairment on the property leased than is necessary, he will be liable for
In his own written reply, Boboy signified that he was ready to leave but damages (Art. 1678)
Anselmo must first reimburse him the value of the improvements he
introduced on the property as he is a builder in good faith. Anselmo refused,
insisting that Boboy cannot ask for reimbursement as he is a mere lessee.
Boboy responded by removing the improvements and leaving the building
in its original state. (Property-BPS)

(A) Resolve Boboy's claim that as a builder in good faith, he should

be reimbursed the value of the improvements he introduced.
(4%)

SUGGESTED ANSWER:

Boboy’s claim that he is a builder in good faith has no legal basis. A

builder in good faith is someone who occupies the property in the concept of
an owner. The provisions on builder-planter-sower under the Civil Code cover
cases in which the builder, planter and sower believe themselves to be
owners of the land, or at least, to have a claim of title thereto.

As Boboy is a lessee of the property, even if he was paying nominal

rental, Art. 1678 of the Civil Cod is applicable. Under this provision, if the
lessee males on good faith useful improvements which are suitable to the use
for which the lease is intended, without altering the form or substance of the
property leased, the lessor upon the termination of the lease shall pay the
lessee one-half of the value of the improvements at that time. Should the

26
 V. provisions of the deed of donation which state that the same will only take
effect upon the death of the donor and that there is a prohibition to alienate,
Josefa executed a deed of donation covering a one-hectare rice land in encumber, dispose, or sell the same shoule be harmonized with its express
favor of her daughter, Jennifer. The deed specifically provides that: irrevocability (Austria-Magat v. CA)

"For and in consideration of he love and service Jennifer has ALTERNATIVE ANSWER:
shown and given to me, I hereby freely, voluntarily and irrevocably
donate to her my one-hectare rice land covered by TCT No. 11550, The donation is a donation mortis causa.
located in San Fernando, Pampanga. This donation shall take
effect upon my death." The deed clearly states that the donation shall take effect upon the
death of the donor, Josefa. The donor, moreover, retained ownership of the
The deed also contained Jennifer's signed acceptance, and an attached subject property as it was declared that the property cannot be alienated,
notarized declaration by Josefa and Jennifer that the land will remain in encumbered, sold or disposed of while the donor is still alive.
Josefa's possession and cannot be alienated, encumbered, sold or
disposed of while Josefa is still alive. As the donation is in the nature of a mortis causa disposition, the
formalities of a will should have been complied with under Art. 728,
Advise Jennifer on whether the deed is a donation inter vivos or otherwise, the donation is void and would produce no effect. (The National
mortis causa and explain the reasons supporting your advice. (8%) Treasurer of the Philippines v. Vda. De Meimban)
(Property-Donation)

SUGGESTED ANSWER:

The donation is a donation inter vivos.

When the donor intends that the donation shall take effect during
the lifetime of the donor, though the property shall not be delivered till after
the donor’s death, this shall be a donation inter vivos (Art. 729)

The Civl Code favors inter vivos transmissions. Moreover, mortis

causa donations should follow the formalities of a will (Art. 728). Here, there
is no showing that such formalities were followed. Thus, it is favorable to
Jennifer that the deed is a donation inter vivos.

Furthermore, what is most significant in determining the type of

donation is the absence of stipulation that the donor could revoke the
donation, on the contrary, the deeds expressly declare them to be
“irrevocable” , a quality absolutely incompatible with the idea of mortis causa
conveyance where revocability is of the essence of the act, to the extent that
a testator cannot lawfully waive or restrict his right of revocation. The

27
 VII. from the dominant estate to the public highway may be the shortest
(Art. 650)
In 2005, Andres built a residential house on a lot whose only access to
the national highway was a pathway crossing Brando's property. Andres However, the Supreme Court ha consistently ruled that in case both
and others have been using this pathway (pathway A) since 1980. criteria cannot be complied with, the right of way shall be established at the
point least prejudicial to the servient estate.
In 2006, Brand0 fenced off his property, thereby blocking Andres'
access to the national highway. Andres demanded that part of the fence The first and fourth requisites are not complied with. First, there is
be removed to maintain his old access route to the highway (pathway A), another available outlet to the national highway (Pathway B). Second, the
but Brando refused, claiming that there was another available pathway right of way obtained (Pathway A) is not the least prejudicial to Brabdo’s
(pathway B) for ingress and egress to the highway. Andres countered that property, as evidenced by the reports of the geodetic and civil engineer.
pathway B has defects, is circuitous, and is extremely inconvenient to use.
When there is already an existing adequate outlet from the dominant
To settle their dispute, Andres and Brando hired Damian, a geodetic estate to a public highway, even if the said outlet, for one reason or
and civil engineer, to survey and examine the two pathways and the another, be inconvenient, the need to open up another servitude is entirely
surrounding areas, and to determine the shortest and the least prejudicial unjustified (Costabella Corp. v. CA). The result that the easement of right of
way through the servient estates. After the survey, the engineer way shall be established at the point least prejudicial to the servient estate
concluded that pathway B is the longer route and will need improvements is controlling (Quimen v. CA)
and repairs, but will not significantly affect the use of Brando's property.
On the other hand, pathway A that had long been in place, is the shorter
route but would significantly affect the use of Brando's property.

In light of the engineer's findings and the circumstances of the case,

resolve the parties' right of way dispute. (6%) (Property-Easement)

SUGGESTED ANSWER:

Andress is not entitled to the easement of right of way for Pathway A.

Pathway B must be used.

The owner of a dominant estate may validly obtain a compulsory right

of way only after he has established the existence of four requisites, to wit:

1. The dominant estate is surrounded by other immovable and is

without adequate outlet to a public highway;
2. After payment of the proper indemnity;
3. The isolation was not due to the proprietor’s own acts; and
4. The right of way claimed is at a point least prejudicial to the servient
estate, and insofar as consistent with this rule, where the distance

28
 VIII. However, the builder cannot be obliged to buy the land if its value is
considerably more than that of the building. In such case, he shall pay
Ciriaco Realty Corporation (CRC) sold to the spouses Del a Cruz a500- reasonable rent if the owner of the land does not choose to appropriate the
square meter land (Lot A) in Paranaque. The land now has a fair market building or trees after proper indemnity (Art. 448, Civil Code).
value of Pl,200,000. CRC likewise sold to the spouses Rodriguez, a 700-
square meter land (Lot B) which is adjacent to Lot A. Lot B has a present The house constructed by the spouses Dela Cruz id considered as a
fair market value of P1,500,000. useful expense, since it increased the value of the lot. As such, should the
spouses Rodriguez decide to appropriate the house, the spouses Dela Cruz
The spouses Dela Cruz constructed a house on Lot B, relying on there are entitled to the right of retention pending reimbursement of the
presentation of the CRC sales agent that it is the property they purchased. expenses they incurred or the increase in value which the thing may have
Only upon the completion of their house did the spouses Dela Cruz acquired by reason of the improvement (Art. 546, Civil Code). Thus, the
discover that they had built on Lot B owned by the spouses Rodriguez, not spouses Dela Cruz may demand P1,000,000 as payment of the expenses in
on Lot A that they purchased. They spent P 1 000,000 for the house. building the house or increase in value of the land because of the house as a
useful improvement, as may be determined by the court from the evidence
As their lawyer, advise the spouses Dela Cruz on their rights and presented during the trial (Depra v. Dumlao. G.R. No. L-57348, May 16,
obligations under the given circumstances, and the recourses and options 1995, 136 SCRA 475); Technogas Phils. v. CA, G.R. No. 108894, February 10,
open to them to protect their interests. (8%) 1997, 268 SCRA 5).

SUGGESTED ANSWER:

Based on the facts stated, the spouses Dela Cruz as builders and the
spouses Rodriguez as land owners, are both in good faith. The spoused Dela
Cruz are builders in good faith because before constructing the house, they
exercised due diligence by asking the agent of CRC the location of Lot A, and
they relied on the information given by the agent who is presumed to know
the identity of the lot purchased by Dela Cruz Spouses (Pleasantville v. CA
G.R. No. 79688, Feb. 1, 1996 253 SCRA 10). On the other hand, there is no
showing that the landowners, spouses Rodriguez, acted in bad faith. The
facts do not show that the building was done with their knowledge and
without opposition on their part. (Art. 453, Civil Code). Good faith is always
presumed (Art. 527, Civil Code).

The owner of the land in which anything has been built, sown or
planted in good faith shall have the right:

1. To appropriate as his own the works after payment of the

indemnity provided for in Art. 546 and 548, or
2. To oblige the one who built to pay the price of the land.

29
 IX. MULTIPLE CHOICE QUESTIONS

Rica petitioned for the annulment of her ten-year old marriage to I. Armand died intestate. His full-blood brothers, Bobby and Conrad,
Richard. Richard hired Atty. Cruz to represent him in the proceedings. In and half-blood brothers, Danny, Edward and Floro, all predeceased him.
payment for Atty. Cruz's acceptance and legal fees, Richard conveyed to The following are the surviving relatives:
Atty. Cruz a parcel of land in Taguig that he recently purchased with his
lotto winnings. The transfer documents were duly signed and Atty. Cruz 1. Benny and Bonnie, legitimate children of Bobby;
immediately took possession by fencing off the property's entire 2. Cesar, legitimate child of Conrad;
perimeter. 3. Dante, illegitimate child of Danny;
4. Ernie, adopted child of Edward; and
Desperately needing money to pay for his mounting legal fees and his 5. Felix, grandson of Floro.
other needs and despite the transfer to Atty. Cruz, Richard offered the
same parcel of land for sale to the spouses Garcia. After inspection of the The net value of Armand's estate is Pl,200,000.
land, the spouses considered it a good investment and purchased it from
Richard. Immediately after the sale, the spouses Garcia commenced the I. (1) How much do Benny and Bonnie stand to inherit by right of
construction of a three-story building over the land, but they were representation? (1%)
prevented from doing this by Atty. Cruz who claimed he has a better right
in light of the prior conveyance in his favor. (A) P200,000

Is Atty. Cruz's claim correct? (8%) (B) P300,000

SUGGESTED ANSWER: (C) P400,000

No, Atty. Cruz is not correct. At first glance, it may appear that Atty. (D) P150,000
Cruz is the one who has a better right because he took possession of the
property. However, a lawyer is prohibited under Art. 1491 of the Civil Code (E) None of the above.
from acquiring the property and rights which may be the object of any
litigation in which they may take part by virtue of their profession. While the SUGGESTED ANSWER: NONE OF THE ABOVE. If all the brothers or
suit is for annulment of marriage and it may be argued that the land itself is sisters are disqualified to inherit, the nephews or nieces inherit in their own
not the object of the litigation, the annulment of marriage, if granted will right and not by right of representation. (Art. 975)
carry with it the liquidation of the absolute community or conjugal
partnership of the spouses as the case may be (Art. 50 in relation to Art. 43 I. (2) How much is Dante's share in the net estate? (1%)
of the Family Code). Richard purchased the land with his lotto winnings
during the pendency of the suit for annulment and on the assumption that (A) P150,000.
the parties are governed by the regime of absolute community or conjugal
partnership, winnings from gambling or betting will form part thereof. Also, (B) P200,000.
since the land is part of the absolute community or conjugal partnership of
Richard and Rica, it may not be sold or alienated without the consent of the (C) P300,000.
latter and any disposition or encumbrance of the property of the other
spouse is void. (Art. 96 and Art. 124, Family Code)
30
 (D) P400,000. (A) P400,000.

(E) None of the above. (B) P150,000.

SUGGESTED ANSWER: NONE OF THE ABOVE. There is no showing that (C) P300,000.
Danny is an illegitimate half-blood brother of Armand. In the absence of
proof to the contrary, the law presumes that the relationship is legitimate. (D) P0.
Thus, Dante, an illegitimate child of Danny, is barred from inheriting from
Armand pursuant to the “iron curtain rule” which disqualifies an illegitimate (E) None of the above.
child from inheriting ab intestato from the legitimate children and relatives
of his father or mother, and vice versa (Art. 992) SUGGESTED ANSWER: NONE OF THE ABOVE. In the collateral line,
representation is granted only to children of brothers or sisters, Felix is a
grandson of a predeceased brother.

[Note: “E None of the above” is the answer because Felix has no share at
all in the net estate]
I. (3) How much is Ernie's share in the net estate . (1%)

(A) P 0.

(B) P400,000.

(C) P150,000.

(D) P200,000.

(E) None of the above.

SUGGESTED ANSWER: NONE OF THE ABOVE. The legal relationship

created by adoption is strictly between the adopter and the adopted. It does
not extend to the relatives of either party (Sayson v. CA)

[Note: “E None of the above” is the answer because Ernie has no share
at all in the estate. There is a difference when a person has the right to share
but his share turned out to be nothing]

I. (4) How much is Felix's share in the net estate? (1%)

31
 VII. SUGGESTED ANSWER: The marriage subsists because the marital bond
has not been terminated by death.
Lito was a commercial pilot who flew for Pacific-Micronesian Air. In
1998, he was the co-pilot of the airline's Flight MA916 that mysteriously Art. 390 and 391 of the New Civil Code were not repealed by the
disappeared two hours after take-off from Agana, Guam, presumably over Family Code. Article 41 of the Family Code merely allows the spouse present
the Pacific Ocean. No trace of the plane and its 105 passengers and crew to contract a subsequent marriage before the 10-year period has lapsed
was ever found despite diligent search; Lito himself was never heard of under Art. 390 provided a court declaration of the absentee spouse’s
again. Lito left behind his wife, Lita, and their two children. presumptive death is obtained. After 10 years of absence under Art. 390,
the absentee spouse is presumed dead for all purposes including marriage
In 2008, Lita met and and married Jaime. They now have a child of and the law does not require any court declaration for the purpose. The
their own. reappearance of the absentee spouse rules the subsequent marriage
voidable under Art. 83 of the NCC, which is believed to apply but the first
While on a tour with her former high school classmates in a remote marriage remains.
province of China in 2010, Lita was surprised to see Lito or somebody who
looked exactly like him, but she was sure it was Lito because of the VII. (2) If Lito is alive, what is the status of Lita's marriage to
extreme surprise that registered in his face when he also saw her. Jaime? (1%)
Shocked, she immediately fled to her hotel and post haste returned to the
country the next day. Lita now comes to you for legal advice. She asks you (A) The marriage is valid because Lita's marriage to Lito
the following questions: was terminated upon Lito's disappearance for more than
seven years.
VII. (l) If Lito is alive, what is the status of his marriage to Lita?
(1%) (B) The marriage is valid. After an absence of more than
10 years, Lito is already presumed dead for all purposes.
(A) The marriage subsists because the marital bond has
not been terminated by death. (C) The marriage is void. Lito's mere absence, however
lengthy, is insufficient to authorize Lita to contract a
(B) The marriage was terminated when Lita married subsequent marriage.
Jaime.
(D) The marriage is void. If Lito is indeed alive, his
(C) The marriage subsists because Lita's marriage to marriage to Lita was never dissolved and they can resume
Jaime is void. their marital relations at any time.

(D) The marriage is terminated because Lito is SUGGESTED ANSWER: ANY ANSWER IS CORRECT Under Art. 390 of the
presumed dead after his plane has been missing for more Civil Code, after an absence of seven years, it being unknown whether or
than 4 years. not the absentee still lives, he shall be presumed dead for all purposes,
except for those of succession. This provision was not repealed by the
(E) The marriage can be formally declared terminated if present Family Code. Applying this to the problem, (A) may be correct. (B)
Lito would not resurface. may also be correct (C) and (D) may also be correct under Art. 41 of the
Family Code.

32
 IX. SUGGESTED ANSWER: (A) I will rule in favor of Betty. My ruling is based
on the Civil Code provision that one who has lost any movable or has been
Betty entrusted to her agent, Aida, several pieces of jewelry to be sold unlawfully deprived thereof may recover it from the person in possession of
on commission with the express obligation to turn over to Betty the the same. Tam bunting's claim of good faith is inconsequential.
proceeds of the sale, or to return the jewelries if not sold in a month's
time. Instead of selling the jewelries, Aida pawned them with the The possession of immovable property acquired in good faith is
Tambunting Pawnshop, and used the money for herself. Aida failed to equivalent to a title. Nevertheless, one who has lost any movable or has
redeem the pawned jewelries and after a month, Betty discovered what been unlawfully deprived thereof may recover it from the person in
Aida had done. Betty brought criminal charges which resulted in Aida's possession of the same. Betty has been deprived unlawfully of her jewelries
conviction for estafa. by the estafa committed by Aida. The pledge of said jewelries by Aida to
Tambunting Pawnshop is void because the pledger is not the owner (Art.
Betty thereafter filed an action against Tambunting Pawnshop for the 2058 (2), Civil Code). Tambunting’s claim of good faith is inconsequential,
recovery of the jewelries. Tambunting raised the defense of ownership, because, aside from good faith, Tambunting must prove also that it acquired
additionally arguing that it is duly licensed to engage in the pawnshop and the jewelries at a public sale in order to be able to retain the jewelries until
lending business, and that it accepted the mortgage of the jewelry in good reimbursed by Betty the amount of the loan including interest.
faith and in the regular course of its business.
If the possessor of a movable which was lost or which the owner has
If you were the judge, how will you decide the case? (1%) been unlawfully deprived, has acquired it in good faith at a public sale, the
owner cannot obtain its return without reimbursing the price paid thereof
(A) I will rule in favor of Betty. My ruling is based on the Civil (Art. 559, Civil Code). The only exception the law allows is when there is
Code provision that one who has lost any movable or has been acquisition in good faith of the possessor at a public sale, in which case the
unlawfully deprived thereof may recover it from the person in owner cannot obtain its return without reimbursing the price (Dizon v.
possession of the same. Tam bunting's claim of good faith is Suntay G.R. No. L-30817, September 29, 1974, 47 SCRA 160).
inconsequential.

(B) I will rule in favor of Betty. Tambunting's claim of good

faith pales into insignificance in light of the unlawful deprivation
of the jewelries. However, equity dictates that Tambunting must
be reimbursed for the pawn value of the jewelries.

(C) I will rule in favor of Tambunting. Its good faith takes

precedence over the right of Betty to recover the jewelries.

(D) I will rule in favor of Tambunting. Good faith is always

presumed. Tambunting's lawful acquisition in the ordinary course
of business coupled with good faith gives it legal right over the
jewelries.

33
 2012 BAR QUESTIONS b) Foreign element

1. Which of the following is NOT included in the attributes of juridical c) Jurisdiction

capacity?
d) Forum non conveniens
a) Juridical capacity is inherent in every natural person, and
therefore it is not acquired. SUGGESTED ANSWER: b) Foreign element

b) Juridical capacity is lost only through death.

c) Juridical capacity is the fitness to be the subject of legal 4. The capacity of an heir to succeed shall be governed by the:
relations.
a) national law of the decedent’s heirs
d) Juridical capacity cannot exist without capacity to act.
b) law of the country where the decedent was a resident at the
SUGGESTED ANSWER: d) Juridical capacity cannot exist without time of his death
capacity to act.
c) national law of the person who died
2. Which of the following is NOT a restriction on one’s capacity to act?
d) law of the country where the properties of the decedent are
a) Minority located.

b) Marriage SUGGESTED ANSWER: c) national law of the person who died

c) Deaf-mute Spain. The attestation clause of the said will does not contain Buko’s
signature. It is valid under Spanish law. At its probate in Manila, it is being
d) Civil Interdiction opposed on the ground that the attestation clause does not contain BUKO’s
signature. Is the opposition correct? Choose the best answer.
SUGGESTED ANSWER: This question should be disregarded. NOTE:
There is no correct answer among the choices given. All the choices are a) Yes, because it is a fatal defect.
restriction on one’s capacity to act. While marriage is the only one not
mentioned in Art. 38 and 39 of the NCC as a restriction on capacity to act, it b) Yes, the will is not valid under Philippine law.
restricts the capacity of a married person in cases of adoption.
c) No, attestation clause is not an act of the testator.
3. This attribute or incident of a case determine whether it is a conflict-
of-laws case or one covered by domestic law. d) No, the governing law is Spanish law.

a) Cause of action SUGGESTED ANSWER: c) No, attestation clause is not an act of

the testator. OR d) No, the governing law is Spanish law.

34
 [NOTE: The facts do not state the Law observed by the Testator in c) when the foreign law or judgment is penal in nature;
executing his will. He could have observed Spanish Law or Philippine Law
(see comment of Tolentino in Art. 815). If he observed Spansih Law, the d) when the foreign law is procedural in nature.
opposition is not correct because the will is valid under Spanish Law, hence,
choice (d) is the correct answer. If he observed Philippine Law, the SUGGESTED ANSWER: b) when the property subject of the case is
opposition is still not correct because Philippine law does not require the located outside of the Philippines AND c) when the foreign law or
Testaor to sign the attestation clause of his will, said clause not being his judgment is penal in nature;
act. In such case, choice C is the correct answer. ]

6. Ramon, a Filipino, executed a will in Manila, where he left his house
and located in BP Homes Parañaque in favor of his Filipino son, Ramgen. 8. If a will is executed by a testator who was born a Filipino citizen but
Ramon’s other children RJ and Ramona, both Turkish nationals, are became naturalized Japanese citizen at the time of his death, what law will
disputing the bequest to Ramgen. They plotted to kill Ramgen. Ramon govern its testamentary provisions if the will is executed in China and the
learned of the plot, so he tore his will in two pieces out of anger. Which property being disposed is located in Indonesia?
statement is most accurate?
a) Chinese law
a) The mere act of Ramon Sr. is immaterial because the will is
still readable. b) Philippine law

b) The mere act of tearing the will amounts to revocation. c) Indonesia law

c) The tearing of the will may amount to revocation if coupled d) Japanese law
with intent of revoking it.
SUGGESTED ANSWER: d) Japanese law
d) The act of tearing the will is material.
9. A Japanese national and a Filipino national entered into a contract for
SUGGESTED ANSWER: c) The tearing of the will may amount to services in Thailand. The services will be rendered in Singapore. In case of
revocation if coupled with intent of revoking it. breach, what law will govern?

7. Even if the applicable law is a foreign law, a count in the Philippines a) Thailand law
may be constrained to apply Philippine law under any of the following
instances, except: b) Philippine law

a) when the foreign law, judgment or contract is contrary to a c) Singapore law

sound and important public policy of the forum;
d) Japanese law
b) when the property subject of the case is located outside of
the Philippines; SUGGESTED ANSWER: c) Singapore law

35
 10. Pedro (Filipino) and his wife Jane (American) executed a joint will in d) Law of the place where they were married.
Canada, where such joint will is valid. In case the joint will is probated in
Japan, what law will govern the formalities of the joint will? SUGGESTED ANSWER: a) Philippines laws

a) American law 13. The will of a Filipino executed in a foreign country ---

b) Philippine law a) cannot be probated in the Philippines;

c) Canadian law b) may be probated in the Philippines provided that properties

in the estate are located in the Philippines;
d) Japanese law
c) cannot be probated before the death of the testator;
SUGGESTED ANSWER: c) Canadian law
d) may be probated in the Philippines provided it was executed
11. A French national revokes his will in Japan where he is domiciled. He in accordance with the laws of the place where the will was
then changed his domicile to the Philippines where he died. The revocation executed.
of his will in Japan is valid under Japanese law but invalid under Philippine
law. The affected heir is a Malaysian national residing in the Philippines. SUGGESTED ANSWER: d) may be probated in the Philippines provided
What law will apply? it was executed in accordance with the laws of the place where the will
was executed.
a) Japanese law
14. Pedro (Filipino and Bill (American) entered into a contract in
b) Philippine law Australia, whereby it was agreed that Pedro will build a commercial building
for Bill in the Philippines, and in payment for the construction, Bill will
c) French law transfer and convey his cattle ranch located in Japan in favor of Pedro. In
case Pedro performs his obligation, but Bill fails or refuses to pay, what law
d) Malaysian law will govern?

SUGGESTED ANSWER: a) Japanese law a) American law

12. In the absence of contrary stipulation in a marriage settlement, b) Philippine law

property relations of Filipino spouses shall be governed by ---
c) Australian law
a) Philippines laws
d) Japanese law
b) Law of the place where the spouses reside
SUGGESTED ANSWER: d) Japanese law
c) Law of the place where the properties are situated
(Facts for item numbers 15-18)

36
 In 1989, Charice (Filipina) and Justine (American), were married a) Valid
in the Philippines. In 1990, they separated and Justine went to Las
Vegas where he obtained a divorce in the same year. He then b) Void
married another Filipina, Lea, in Canada on January 1, 1992. They
had two (2) sons, James and John (who were both born in 1992). In c) Voidable
1993, after failing to hear from Justine, Charice married Bugoy (a
Filipino), by whom she had a daughter, Regine. In 2009, Regine d) Unenforceable
married James (son of Justine with Lea) in California, where such
marriage is valid. SUGGESTED ANSWER: a) Valid

15. What is the current status of the marriage of Charice and Justine 18. What is the status of the marriage between Regine and James under
under Philippine laws? Philippine laws?

a) Valid a) Valid

b) Void b) Void

c) Voidable c) Voidable

d) Dissolved d) Unenforceable

SUGGESTED ANSWER: d) Dissolved SUGGESTED ANSWER: a) Valid

16. What is the status of the marriage between Charice and Bugoy 19. Ricky and Princess were sweethearts. Princess became pregnant.
under Philippine laws? Knowing that Ricky is preparing for the examinations, Marforth, a lawyer
and cousin of Princess, threatened Ricky with the filing of a complaint for
a) Valid immorality in the Supreme Court, thus preventing him from taking
examinations unless he marries Princess. As a consequence of the threat,
b) Void Ricky married Princess. Can the marriage be annulled on the ground of
intimidation under Article 45 of the Family Code? Choose the best answer.
c) Voidable
a) Yes, because without the threat, Ricky would not have
d) Unenforceable married Princess.

SUGGESTED ANSWER: a) Valid b) Yes, because the threat to enforce the claim of Princess
vitiates the consent of Ricky in contracting the marriage.
17. What is the status of the marriage between Charice and Bugoy
under Philippine laws? c) No, because the threat made by Marforth is just and legal.

37
 d) No, because Marforth is not a party to the contract of b) The donation is void but Ernesto cannot get the mobile
marriage between Princess and Ricky. phone back.

SUGGESTED ANSWER: c) No, because the threat made by Marforth is c) The donation is voidable and may be anulled.
just and legal.
d) The donation is valid.
20. Audrey, single, bought a parcel of land in Malolos City from Franco
for P 1Million. A contract was executed between them which already vested SUGGESTED ANSWER: b) The donation is void but Ernesto cannot get
upon Audrey full ownership of the property, although payable in monthly the mobile phone back.
installments for a period of four (4) years. One (1) year after the execution
of the contract, Audrey got married to Arnel. They executed a marriage 22. Agay, a Filipino citizen and Topacio, an Australian citizen, got
settlement whereby they agreed that their properties shall be governed by married in the consular office of the Philippines in Australia. According to
the regime of conjugal partnership of gains. Thereafter, subsequent the laws of Australia, a marriage solemnized by a consular official is valid,
installments were paid from the conjugal partnership funds. Is the land provided that such marriage is celebrated in accordance with the laws of
conjugal or paraphernal? such consular official. Under Philippine law, what is the status of the
marriage of Agay and Topacio? Choose the best answer.
a) The land is conjugal because the installments were paid from
the conjugal partnership funds. a) Void, because the consular official only has authority to
solemnize marriages between Filipinos.
b) The land is paraphernal because ownership thereof was
acquired before the marriage. b) Valid, because according to the laws of Australia, such
consular official has authority to celebrate the marriage.
c) The land is both conjugal and paraphernal funds of
installments were paid from both the personal funds of Audrey and c) Voidable, because there is an irregularity in the authority of
the conjugal partnership funds. the consular official to solemnize marriages.

d) The land is paraphernal because it was Audrey who d) Valid, because such marriage is recognized as valid in the
purchased the same. place where it was celebrated.

SUGGESTED ANSWER: b) The land is paraphernal because ownership SUGGESTED ANSWER: a) Void, because the consular official only has
thereof was acquired before the marriage. authority to solemnize marriages between Filipinos.

21. Ernesto donated a mobile phone worth P 32,000 to Hubert orally [NOTE: The issue in the problem is whether or not the fact that one of
and delivered the unit to Hubert who accepted. Which statement is most the parties to the marriage was an alien constituted absence of authority or
accurate? mere irregularity of authority. The problem gives only the choice, letter (a),
in the case it is interpreted as absence of authority. The problem does not
a) The donation is void and Ernesto may get mobile phone back. give a choice in case it is interpreted as an irregularity thereby making all
the other answers wrong]

38
 23. Separation of property between spouses during the marriage may SUGGESTED ANSWER: d) none of the above
take place only:
26. In legal separation, which is not correct?
a) by agreement of the spouses.
a) The aggrieved spouse may file the action within five (5) years
b) If one of the spouses has given ground for legal separation. from the time of the occurrence of the cause.

c) Upon order of the court. b) No trial shall be held without the 6-month cooling off period
being observed.
d) If one spouse has abandoned the other.
c) The spouses will be entitled to live separately upon the start
SUGGESTED ANSWER: c) Upon order of the court. of the trial.

24. The husband may impugn the legitimacy of his child but not on the d) The prosecuting attorney has to conduct his own
ground that: investigation.

a) the wife is suspected of infidelity. SUGGESTED ANSWER: d) The prosecuting attorney has to conduct his
own investigation.
b) the husband had a serious illness that prevented him from
engaging in sexual intercourse. 27. A husband by chance discovered hidden treasure on the
paraphernal property of his wife. Who owns the discovered treasure?
c) they were living apart.
a) The half pertaining to the husband (finder) belongs to the
d) he is physically incapable of sexual intercourse. conjugal partnership.

SUGGESTED ANSWER: a) the wife is suspected of infidelity. b) The half pertaining to the wife (as owner) belongs to the
conjugal partnership.
25. A marriage is void if:
c) One half shall belong to the husband as finder and the other
a) solemnized with a marriage license issued without complying half shall belong to the wife as owner of the property.
with the required 10-day posting.
d) a and b
b) solemnized by a minister whom the parties believe to have
the authority. SUGGESTED ANSWER: d) a and b

c) between parties both 23 years of age but without parental 28. Which of the following marriages is void for reasons of public policy?
advice.
a) Between brothers and sisters, whether of the full or half
d) none of the above blood.

39
 b) Between step-parents and step children. SUGGESTED ANSWER: b) The donation shall be automatically revoked
in case of non-celebration of the marriage.
c) Between parents-in-law and children-in-law.

d) b and c
31. Who are illegitimate children?
SUGGESTED ANSWER: d) b and c
a) Children conceived or born outside a valid marriage.
29. The following constitute the different circumstances or case of fraud
which will serves as ground for the annulment of a marriage, except? b) Children born under a valid marriage, which was later
declared void because of the psychological incapacity of either or
a) Non-disclosure of the previous conviction by final judgment both of the spouses.
of the other party of a crime involving moral turpitude.
c) Children conceived and born outside a valid marriage.
b) Concealment of a sexually-transmissible disease, regardless
of its nature, existing at the time of the marriage. d) Children born under a valid marriage, but the parents later
obtained a legal separation.
c) Concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism existing at the time of marriage. SUGGESTED ANSWER: c) Children conceived and born outside a valid
marriage.
d) Concealment by the wife or the husband of the fact of sexual
relations prior to the marriage. 32. An illegitimate child may use the surname of his father when his
filiation is established in any of the following instances, except:
SUGGESTED ANSWER: d) Concealment by the wife or the husband of
the fact of sexual relations prior to the marriage. a) Filiation has been recognized by the father through the
record of birth appearing in the civil register
30. Which of the following is not a requisite for a valid donation propter
nuptias? b) Admission of filiation by the father in a public document.

a) The donation must be made before the celebration of the c) Private handwritten instrument is made by the father
marriage. acknowledging his filiation.

b) The donation shall be automatically revoked in case of non- d) Affidavit by the mother stating the name of his true father.
celebration of the marriage.
SUGGESTED ANSWER: d) Affidavit by the mother stating the name of
c) The donation must be made in consideration of the marriage. his true father.

d) The donation must be made in favor of one or both of the

future spouses.

40
 33. Under RA 8043, an adopter is required to be at least ____ years old SUGGESTED ANSWER: d) Conviction of the parents of a crime which
and ____ years older than the child to be adopted at the time of the carries with it the penalty of civil interdiction.
application unless the adopter is the parent by nature of the child.
36. The court, in an action filed for the purpose, may suspend parental
a) 30 and 15 authority if the parent or the person exercising parental authority commits
any of the following acts, except:
b) 27 and 16
a) Treats the child with excessive harshness or cruelty.
c) 50 and 10
b) Gives the child corrupting orders, counsel or example.
d) 18 and 15
c) Compels the child to take up a course in college against
SUGGESTED ANSWER: b) 27 and 16 his/her will.

34. Under RA 8043, a child qualified to be adopted is any person below d) Subjects the child or allows him to be subjected to acts of
_____ years old. lasciviousness.

a) 18 SUGGESTED ANSWER: c) Compels the child to take up a course in

college against his/her will.
b) 21
37. Which of the following statements is wrong?
c) 15
a) The possessor in bad faith shall reimburse the fruits received
d) 16 and those which the legitimate possessor could have received.

SUGGESTED ANSWER: c) 15 b) The possessor in bad faith has right of reimbursement for
necessary expenses and those for the production, gathering and
35. Which of the following DOES NOT result in permanent termination preservation of the fruits.
of parental authority?
c) The possessor in bad faith is not entitled to a refund of
a) Death of the parents. ornamental expenses.

b) Death of the child. d) The possessor in bad faith is entitled to a refund of useful
expenses.
c) Emancipation of the child.
SUGGESTED ANSWER: d) The possessor in bad faith is entitled to a
d) Conviction of the parents of a crime which carries with it the refund of useful expenses.
penalty of civil interdiction.

41
 38. Which phrase most accurately completes the statement – The allegation of proof of title. This action can only be brought after the
expenses incurred in improvements for the luxury or mere pleasure shall expiration of one (1) year. What action is being referred to?
not be refunded to thew possessor in bad faith:
a) Accion publiciana
a) but he may remove the objects for which such expenses have
been incurred, provided that the thing suffers no injury thereby, and b) Accion reinvindicatoria
that the lawful possessor does not prefer to retain them.
c) Accion interdictal
b) and he may not remove the objects for which such expenses
have been incurred. d) Quieting of Title

c) and he may not remove the objects for which such expenses SUGGESTED ANSWER: a) Accion publiciana
have been incurred, unless he pays the value they may have at the
time he entered into possession. 41. Action to recover real property based on ownership. Here, the
object is the recovery of the dominion over the property as owner. What
d) but he may remove the objects for which such expenses have action is being referred to?
been incurred.
a) Accion publiciana
SUGGESTED ANSWER: a) but he may remove the objects for which
such expenses have been incurred, provided that the thing suffers no b) Accion reinvindicatoria
injury thereby, and that the lawful possessor does not prefer to retain
them. c) Accion interdictal

39. The following are the limitations on the right of ownership imposed d) Quieting of Title
by the owner himself, except:
SUGGESTED ANSWER: b) Accion reinvindicatoria
a) Will/Succession
42. A summary action to recover physical or material possession only
b) Mortgage and must be brought within one (1) year from the time the cause of action
arises. What action is being referred to?
c) Pledge
a) Accion publiciana
d) Lease
b) Accion reinvindicatoria
SUGGESTED ANSWER: a) Will/Succession
c) Accion interdictal
40. A plenary action for the recovery of the possession of real estate,
upon mere allegation and proof of a better right thereto, and without d) Quieting of Title

42
 SUGGESTED ANSWER: a) Accion publiciana SUGGESTED ANSWER: a) patrimonial property of the state, when no
longer intended for public use or for public service, shall become property
43. The following things are property of public dominion, except: of public dominion.

a) ports and bridges constructed by the State. 45. The following cannot ask for the reduction of inofficious
donation, except:
b) vehicles and weapons of the Armed Forces of the Philippines.
a) Creditors of the deceased
c) rivers.
b) Devisees or legatees
d) lands reclaimed by the state from the sea.
c) Compulsory heirs of the donor
SUGGESTED ANSWER: This question should be disregarded because
there is no correct answer in the choices given. d) The surviving spouse of the donee.

[NOTE: At first glance, one gets the impression that vehicles and weapons SUGGESTED ANSWER: c) Compulsory heirs of the donor
of the AFP are not property of public dominion. But they are actually property
of public dominion under the second paragraph of Art. 420 of the NCC. 46. Donation is perfected from the moment ---
Property of the State which are not for public use but are intended for some
public service are properties of public dominion. While the vehicles and a) the donee accepts the donation.
weapons of the AFP are not for public use, they are being used for the defense
of the State which is a public service.] b) the donor executes the deed of donation.

c) the donor knows of the donee’s acceptance even if the latter

has not received the copy of the deed of donation.
44. Which of the following statements is wrong?
d) the donee confirms that the donor has learned the former’s
a) patrimonial property of the state, when no longer intended acceptance.
for public use or for public service, shall become property of public
dominion. SUGGESTED ANSWER: c) the donor knows of the donee’s acceptance
even if the latter has not received the copy of the deed of donation.
b) all property of the State, which is not of public dominion, is
patrimonial property. 90. The requisites of succession are as follows, except:

c) The property of provinces, cities and municipalities is divided a) Death of decedent

into property for public use and patrimonial property.
b) Transmissible estate
d) Property is either of public dominion or of private ownership.

43
 c) Existence and capacity of successor, designated by decedent c) notary public;
or law
d) the instrumental witnesses witnessed and signed the will and
d) Payment of Taxes all the pages thereof in the presence of the testator and one
another.
SUGGESTED ANSWER: d) Payment of Taxes
SUGGESTED ANSWER: c) notary public
91. The characteristics of succession are as follows, except:
94. The following are the formalities required in the execution of
a) It is a legal contract. holographic will, except:

b) Only property, rights and obligations to the extent of the a) Entirely written;
value of the inheritance are transmitted.
b) Dated;
c) The transmission takes place only at the time of death.
c) Signed by testator himself
d) The transmission takes place either by will or by operation of
law. d) Notarized by a notary public.

SUGGESTED ANSWER: a) It is a legal contract. SUGGESTED ANSWER: d) Notarized by a notary public.

92. The following rights are extinguished by death, except: 95. The following are the grounds for disallowance of wills, except:

a) Legal support a) The formalities required by law have not been complied with.

b) Parental authority b) The testator was insane or mentally incapable of making will.

c) Right to inherit c) The will was executed through force or under duress, or
influence of fear or threats.
d) Agency
d) The will contains an attestation clause.
SUGGESTED ANSWER: c) Right to inherit
SUGGESTED ANSWER: d) The will contains an attestation clause.
93. The attestation clause contains the following, except:
96. It is the omission in the testator’s will of one, some or all of the
a) the number of pages used; compulsory heirs in direct line, whether living at the time of execution of
the will or born after the death of the testator. What principle is being
b) that the testator signed or caused another to sign the will and referred to?
every page thereof in the presence of the instrumental witnesses;

44
 a) reserva troncal ESSAY TYPE QUESTIONS

b) preterition II

c) fideicommissary

d) disposicion captatoria b) The petitioner filed a petition for declaration of nullity of marriage
based allegedly on the psychological incapacity of the respondent, but the
SUGGESTED ANSWER: b) preterition psychologist was not able to personally examine the respondent and the
psychological report was based only on the narration of petitioner. Should
97. Any disposition made upon the condition that the heir shall make the annulment be granted? Explain. (5%) (Marriage-Annulment )
some provision in his will in favor of the testator or of any other person shall
be void. Here, both the condition and the disposition are void. What SUGGESTED ANSWER:
principle is being referred to?
The annulment cannot be granted solely on the basis of the
a) reserva troncal psychological report. For the report to prove the psychological incapacity of
the respondent, it is required that the psychologist should personally
b) preterition examine the respondent and the psychological report should be based on
the psychologist’s independent assessment of the facts as to whether or not
c) fideicommissary the respondent is psychologically incapacitated.

d) disposicion captatoria

SUGGESTED ANSWER: d) disposicion captatoria

45
 III IV

a) Maria, wife of Pedro, withdrew P 5 Million from their conjugal a) After they got married, Nikki discovered that Christian was having
funds. With this money, she constructed a building on a lot which she an affair with another woman. But Nikki decided to give it a try and lived
inherited from her father. Is the building conjugal or paraphernal? with him for two (2) years. After two (2) years, Nikki filed an action for
Reasons. (5%) (Marriage-Reverse Accession) legal separation on the ground of Christian’s sexual infidelity. Will the
action prosper? Explain. (5%) (Marriage-Legal Separation)
SUGGESTED ANSWER: It depends. If the value of the building is more
than the value of the land, the building is conjugal and the land becomes SUGGESTED ANSWER: Although the action for legal separation has not
conjugal property under Article 120 of the Family Code. This is a case of yet prescribed, the prescriptive period being five years, if Christian’s affair
reverse accession, where the building is considered as the principal and the with another woman was ended when Nikki decided to live with him again,
land, the accessory. If, on the other hand, the value of the land is more than Nikki’s action will not prosper on account of condonation. However, if such
the value of the building, then the ordinary rule of accession applies where affair is still continuing, Nikki’s action would prosper because the action will
the land is the principal and the building, the accessory. In such case, the surely be within fibe (5) years from the commission of the latest act of
land remains paraphernal property and the building becomes paraphernal sexual infidelity. Every act of sexual liaison is a ground for legal separation.
property.
b) Honorato filed a petition to adopt his minor illegitimate child
b) Cipriano and Lady Miros married each other. Lady Miros then left Stephanie, alleging that Stephanie’s mother is Gemma Astorga Garcia; that
for the US and there, she obtained American citizenship. Cipriano later Stephanie has been using her mother’s middle name and surname; and
learned all about this including the fact that Lady Miros has divorced him that he is now a widower and qualified to be her adopting parent. He
in America and that she had remarried there. He then filed a petition for prayed that Stephanie’s middle name be changed from "Astorga" to
authority to remarry, invoking Par. 2, Art. 26 of the Family Code. Is "Garcia," which is her mother’s surname and that her surname "Garcia" be
Cipriano capacitated to re-marry by virtue of the divorce decree obtained changed to "Catindig," which is his surname. This the trial court denied.
by his Filipino spouse who was later naturalized as an American citizen? Was the trial court correct in denying Hororato’s request for Stephanie’s
Explain. (5%) (Marriage- Art. 26) use of her mother’s surname as her middle name? Explain. (5%) (Adoption)

SUGGESTED ANSWER: Yes, he is capacitated to re-marry. While the SUGGESTED ANSWER: No, the trial court was not correct. There is no
second paragraph of Art. 26 of the Family Code is applicable only to a law prohibiting an illegitimate child adopted by his natural father to use as
Filipino who married a foreigner at the time of the marriage, the Supreme middle name his mother’s surname. The law is silent as to what middle
Court ruled in the case of Republic v. Orbecido that the said provision name an adoptee may use. In the case of In re: Adoption of Stephanie Nathy
equally applies to a Filipino who married to another Filipino, at the time of Astorga Garcia, the Supreme Court ruled that the adopted child may use the
the marriage, but who was already a foreigner when the divorce was surname of the natural mother as his middle name because there is no
obtained. prohibition in the law against it. Moreover, it will also be for the benefit of
the adopted child who shall preserve his lineage on his mother’s side and
reinforce his right to inherit from his mother and her family. Lastly, it will
make the adopted child conform with the time-honored Filipino tradition of
carrying the mother’s surname as the person’s middle name.

46
 V for his boat from Borromeo. To pay for his debt, he sold his rights and
interests in the Agro-Macro properties to Borromeo.
a) Spouses Primo and Monina Lim, childless, were entrusted with the
custody of two (2) minor children, the parents of whom were unknown. Borromeo discovered that titles to the three (3) lots have been
Eager of having children of their own, the spouses made it appear that transfereed in the name of Descallar. Who is the rightful owner of the
they were the children’s parents by naming them Michelle P. Lim and properties? Explain. (5%) (Marriage- Arts. 147 &148)
Michael Jude Lim. Subsequently, Monina married Angel Olario after
Primo’s death. SUGGESTED ANSWER: It depends. On the assumption that the Family
Code is the applicable law, the ownership of the properties depends on
She decided to adopt the children by availing the amnesty given under whether or not Jambrich and Descallar are capacitated to marry each other
R.A. 8552 to those individuals who simulated the birth of a child. She filed during their cohabitation, and whether or not both having contributed funds
separate petitions for the adoption of Michelle, then 25 years old and for the acquisition of the properties.
Michael, 18. Both Michelle and Michael gave consent to the adoption.
If both of them were capacitated to marry each other, Art. 147 on
The trial court dismissed the petition and ruled that Monina should co-ownership will apply to their property relations and the properties in
have filed the petition jointly with her new husband. Monina, in a Motion question are owned by them in equal shares even though all the funds used
for Reconsideration argues that mere consent of her husband would in acquiring the properties came only from the salaries and wages, or the
suffice and that joint adoption is not needed, for the adoptees are already income of Jambrich from his business or profession. In such a case, while
emancipated. Jambrich is disqualified to own any part of the properties, his subsequent
transfer of all his interest therein to Borromeo, a Filipino, was valid as it
Is the trial court correct in dismissing the petitions for adoption? removed the disqualification. In such case, the properties owned by
Explain. (5%) (Adoption) Borromeo and Descallar in equal shares.

SUGGESTED ANSWER: Yes, the trial court was correct. At the time the If, on the other hand, Janmbrich and Descallar were not capacitated
petitions for adoptions were filed, petitioner had already remarried. Under to marry each other, Art. 148 on co-ownership governs their property
the law, husband and wife shall adopt jointly, except in the cases relations. Under this regime, Jambrich and Descallar are co-owners of the
enumerated in the law. The adoption cases of Michelle and James do no fall properties but only if both of them contributed in their acquisition. If all the
in any of the exceptions provided in the law where a spouse is permitted to funds used in acquiring the properties in question came from Jambrich, the
adopt alone. Hence, Monina should adopt jointly with her husband Angel entire property is his even though he is disqualified from owning it. His
(Adoption of Michelle P. Lim GR No. 168992-93, May 21, 2009) subsequent transfer to Borromeo, however, is valid as it removed the
disqualification. In such case, all the properties are owned by Borromeo. If,
b) Jambrich, an Austrian, fell in-love and lived together with Descallar on the other hand, Descallar contributed to their, acquisition, the properties
and bought their houses and lots at Agro-Macro Subdivision. In the are co-owned by Descallar and Borromeo in proportion to the respective
Contracts to Sell, Jambrich and Descallar were referred to as the buyers. contributions of Descallar and Jambrich.
When the Deed of Absolute Sale was presented for registration before the
Register of Deeds, it was refused because Jambrich was an alien and could
not acquire alienable lands of the public domain. After Jambrich and
Descallar separated, Jambrich purchased an engine and some accessories

47
 VII 1) Should the will be admitted to probate? Explain. (2%) (Wills-
Probate)
a) Natividad’s holographic will, which had only one (1) substantial
provision, as first written, named Rosa as her sole heir. However, when SUGGESTED ANSWER:
Gregorio presented it for probate, it already contained an alteration,
naming Gregorio, instead of Rosa, as sole heir, but without authentication No, the will should not be admitted to probate. Since the couple are
by Natividad’s signature. Rosa opposes the probate alleging such lack of both Filipino Citizens, Articles 818 and 819 of the NCC shall apply. Said
proper authentication. She claims that the unaltered form of the will Articles prohibit the execution of joint wills and make them void, even
should be given effect. Whose claim should be granted? Explain. (5%) though authorized by the laws of the country where they were executed.
(Wills)
2) Are the testamentary dispositions valid? Explain. (2%) (Wills-
SUGGESTED ANSWER: It depends. If the cancellation of Rosa’s name in Preterition)
the will was done by the testator himself, Rosa’s claim that the holographic
will in its original tenor should be given effect must be denied. The said SUGGESTED ANSWER:
cancellation has revoked the entire will as nothing remains of the will after
the name of Rosa was cancelled. Such cancellation is valid revocation of the Since the joint will is void, all the testamentary dispositions written
will and does not require authentication by the full signature of the testator therein are also void. However, if the will is valid, the institutions of heirs
to be effective. However, if the cancellation of Rosa’s name was not done by shall be annulled because Joshura was preterited. He was preterited
the testator himself, such cancellation shall bot be effective and the will in because he will receive nothing from the will, will receive nothing by
its original tenor shall remain valid. The efficacy of a holographic will cannot intestacy, and the facts do not show that he received anything as an
be left to the mercy of unscrupulous third parties. advance on his inheritance. He was totally excluded from the inheritance of
his parents.
The writing of Gregorio’s name as sole heir was ineffective, even
though written by the testator himself, because such is an alteration that 3) Is the testamentary prohibition against the division of the London
requires the authentication by the full signature of the testator to be valid estate valid? Explain. (1%)
and effective. Not having been authenticated, the designation of Gregorio
as an heir was ineffective (Kalaw v. Relova G.R. No. L-40207 Sept. 28, 1984) SUGGESTED ANSWER:

b) John Sagun and Maria Carla Camua, British citizens at birth, Assuming the will of John and Maria is valid, the testamentary
acquired Philippine citizenship by naturalization after their marriage. prohibition on the division of the London estate shall be valid but only for 20
During their marriage, the couple acquired substantial landholdings in years. Under Art. 1083 and 494 of the NCC, a testamentary disposition of
London and in Makati. Maria begot three (3) children, Jorge, Luisito, and the testator cannot forbid the partition of all or part of his estate for a
Joshur. In one of their trips to London, the couple executed a joint will period longer than twenty (20) years.
appointing each other as their heirs and providing that upon the death of
the survivor between them, the entire estate would go to Jorge and Luisito
only but the two (2) could not dispose of nor divide the London estate as
long as they live. John and Maria died tragically in the London subway
terrorist attack in 2005. Jorge and Luisito filed a petition for probate of
their parents’ will before a Makati Regional Trial Court. Joshur vehemently
objected because he was preterited.
48
 VIII b) A petition for declaration of nullity of a void marriage can only be
filed by either the husband or the wife? Do you agree? Explain your
a) Ricky and Arlene are married. They begot Franco during their answer. (5%)
marriage. Franco had an illicit relationship with Audrey and out of which,
they begot Arnel. Frnaco predeceased Ricky, Arlene and Arnel. Before SUGGESTED ANSWER: Yes, I agree. Under the Rules promulgated by the
Ricky died, he executed a will which when submitted to probate was Supreme Court, a direct action for declaration of nullity may only be filed by
opposed by Arnel on the ground that he should be given the share of his any of the spouses.
father, Franco. Is the opposition of Arnel correct? Why? (5%) (Succession-
Representation) ALTERNATIVE ANSWER: No, I do not agree. There are others who may
file a petition for declaration of nullity such as the other spouse in a
SUGGESTED ANSWER: bigamous marriages.

No, his opposition is not correct. Arnel cannot inherit from Ricky in
representation of his father Franco. In representation, the representative
must not only be a legal heir of the person he is representing, he must also
be a legal heir of the decedent he seeks to inherit from.

While Arnel is a legal heir of Franco, he is not a legal heir of Ricky

because under Art. 992 of the NCC, an illegitimate child has no right o
inherit ab intestato from the legitimate children and relatives of his father
or mother. Arnel is disqualified to inherit from Ricky because Arnel is an
illegitimate child of Franco and Ricky is a legitimate relative of Franco.

b) How can RJP distribute his estate by will, if his heirs are JCP, his
wife; HBR and RVC, his parents; and an illegitimate child, SGO? (Wills-
Legitimes, DFP)

SUGGESTED ANSWER: A testator may dispose of by will the free portion

of his estate. Since the legitime of JCP is 1/8 of the estate, that of SGO is ¼
of the estate, and that of HBR & RVC is ½ of the hereditary estate under Art.
889 of the NCC, the remaining 1/8 of the estate is the free portion which the
testator may dispose by will.

IX

49
 2011 BAR QUESTIONS (D) Yes, but on the condition that the amount of the inheritance
can only be ascertained after the obligations of the estate have
(1) When does a declaration of absence of a missing person take effect? been paid.

(A) Immediately from the issuance of the declaration of SUGGESTED ANSWER: (C) No, since the seller owns no inheritance
absence. while his predecessor lives.

(B) 3 months after the publication of the declaration of absence. (6) Which of the following is an indispensable requirement in an action
for "quieting of title" involving real property? The plaintiff must
(C) 6 months after the publication of the declaration of absence.
(A) be in actual possession of the property.
(D) 15 days from the issuance of the declaration of absence.
(B) be the registered owner of the property.
SUGGESTED ANSWER: (C) 6 months after the publication of the
declaration of absence. (C) have legal or equitable title to the property.

(2) The authority that school administrators exercise over school (D) be the beneficial owner of the property.
children under their supervision, instruction, or custody is called
SUGGESTED ANSWER: (C) have legal or equitable title to the property.
(A) legal parental authority.
(7) X and Y were to marry in 3 months. Meantime, to express his
(B) substitute parental authority. affection, X donated a house and lot to Y, which donation X wrote in a letter
to Y. Y wrote back, accepting the donation and took possession of the
(C) ordinary parental authority. property. Before the wedding, however, Y suddenly died of heart attack.
Can Y’s heirs get the property?
(D) special parental authority.
(A) No, since the marriage did not take place.
SUGGESTED ANSWER: (D) special parental authority.
(B) Yes, since all the requisites of a donation of an immovable
(3) Can future inheritance be the subject of a contract of sale? are present.

(A) No, since it will put the predecessor at the risk of harm from (C) No, since the donation and its acceptance are not in a public
a tempted buyer, contrary to public policy. instrument.

(B) Yes, since the death of the decedent is certain to occur. (D) Yes, since X freely donated the property to Y who became its
owner.
(C) No, since the seller owns no inheritance while his
predecessor lives. SUGGESTED ANSWER: (C) No, since the donation and its acceptance
are not in a public instrument.

50
 (8) Rene and Lily got married after a brief courtship. After one month, SUGGESTED ANSWER: (D) No, A’s share goes to his heirs since the
Lily discovered that while Rene presented himself as a macho man he was donation did not provide for reversion to donor.
actually gay. He would not go to bed with her. He kept obscene magazines
of nude men and always sought the company of handsome boys. What legal (12) Which of the following is NOT a basis for rendering a disinheritance
remedy does Lily have? defective or imperfect?

(A) She can file an action for annulment of marriage on ground (A) Its cause comes from the guilt of a spouse in a legal
of fraud. separation case, the innocent-spouse having died.

(B) She can seek a declaration of nullity of the marriage based (B) The truth of its cause is denied and not sufficiently proved by
on Rene’s psychological incapacity. evidence.

(C) She can go abroad and file for divorce in a country that can (C) Its cause is not authorized by the law.
grant it.
(D) Its cause is not specified.
(D) She has none since she had the opportunity to examine the
goods and freely entered into the marriage. SUGGESTED ANSWER: (A) Its cause comes from the guilt of a spouse in
a legal separation case, the innocent-spouse having died.
SUGGESTED ANSWER: (A) She can file an action for annulment of
marriage on ground of fraud. (13) Manuel came to Manila and married Marianne. Unknown to
Marianne, Manuel had been previously convicted in Palawan of theft and
(9) Lucio executed a simple deed of donation of P50 million on time served time for it. After Marianne learned of his previous conviction, she
deposit with a bank in favor of A, B, C, D, and E, without indicating the share stopped living with him. Can Marianne seek the annulment of the marriage
of each donee. All the donees accepted the donation in writing. A, one of based on Manuel’s nondisclosure of his previous crime?
the donees, died. Will B, C, D, and E get A’s share in the money?
(A) No, since the assumption is that marriage forgives all past
(A) Yes, accretion will automatically apply to the joint-donees in wrongs.
equal shares.
(B) Yes, since the non-disclosure of that crime is the equivalent
(B) Yes, since the donor’s intention is to give the whole of P50 of fraud, which is a ground for annulment.
million to the jointdonees in equal shares.
(C) No, in case of doubt, the law must be construed to preserve
(C) No, A"s share will revert to the donor because accretion the institution of marriage.
applies only if the joint-donees are spouses.
(D) No, since Manuel already served the penalty for his crime.
(D) No, A’s share goes to his heirs since the donation did not
provide for reversion to donor. SUGGESTED ANSWER: (B) Yes, since the non-disclosure of that crime is
the equivalent of fraud, which is a ground for annulment.

51
 (14) Arthur and Helen, both Filipinos, got married and had 2 children. (17) When can a missing person who left someone to administer his
Arthur later worked in Rome where he acquired Italian citizenship. He got a property be declared an absentee by the court? When he has been missing
divorce from Helen in Rome but, on returning to the Philippines, he realized for
his mistake, asked forgiveness of his wife, and resumed living with her. They
had 2 more children. What is the status of their 4 children? (A) 2 years from the receipt of the last news about him.

(A) The children born before the divorce are legitimate but (B) 7 years from the receipt of the last news about him.
those born after it are not since Arthur got the divorce when he had
ceased to be a Filipino. (C) 10 years from the receipt of the last news about him.

(B) The divorce rendered illegitimate the children born before it (D) 5 years from the receipt of the last news about him.
since the marriage that begot them had been nullified.
SUGGESTED ANSWER: (D) 5 years from the receipt of the last news
(C) The children born before and after the divorce are all about him.
legitimate since Philippine law does not recognize divorce.
(21) Spouses A and B leased a piece of land belonging to B's parents for
(D) All the children are legitimate since they were born of the 25 years. The spouses built their house on it worth P300,000.00.
same father and mother. Subsequently, in a case that C filed against A and B, the court found the
latter liable to C for P200,000.00. When the sheriff was attaching their
SUGGESTED ANSWER: (A) The children born before the divorce are house for the satisfaction of the judgment, A and B claimed that it was
legitimate but those born after it are not since Arthur got the divorce exempt from execution, being a family home. Is this claim correct?
when he had ceased to be a Filipino.
(A) Yes, because while B’s parents own the land, they agreed to
(15) Who can make a donation? have their daughter build her family home on it.

(A) All persons who can enter into contracts and dispose of their (B) No, because there is no judicial declaration that it is a family
property. home.

(B) All persons who are of legal age and suffer from no civil (C) No, since the land does not belong to A and B, it cannot
interdiction. qualify as a family home.

(C) All persons who can make a last will and testament. (D) Yes, because the A and B’s family actually lives in that house.

(D) All persons, whether natural or artificial, who own property. SUGGESTED ANSWER: (C) No, since the land does not belong to A and
B, it cannot qualify as a family home.
SUGGESTED ANSWER: (A) All persons who can enter into contracts and
dispose of their property. (23) X and Y, although not suffering from any impediment, cohabited as
husband and wife without the benefit of marriage. Following the birth of
their child, the couple got married. A year after, however, the court

52
annulled the marriage and issued a decree of annulment. What is the (A) No, because a marriage settlement to be valid should be in
present status of the child? writing.

(A) Legitimated. (B) Yes, since ante-nuptial agreements need not be in writing.

(B) Illegitimate. (C) No, because a marriage settlement cannot include an

agreement on the paternity of an illegitimate child.
(C) Natural child.
(D) Yes, since even if it is not a valid marriage settlement, it is a
(D) Legitimate. valid verbal contract.

SUGGESTED ANSWER: (A) Legitimated. SUGGESTED ANSWER: (A) No, because a marriage settlement to be
valid should be in writing.
(24) When A and B married, they chose conjugal partnership of gains to
govern their property relations. After 3 years, B succeeded in getting her (26) Spouses X and Y have a minor daughter, Z, who needs support for
marriage to A annulled on ground of the latter’s psychological incapacity. her education. Both X and Y, who are financially distressed, could not give
What liquidation procedure will they follow in disposing of their assets? the needed support to Z. As it happens, Z’s other relatives are financially
capable of giving that support. From whom may Z first rightfully demand
(A) They will follow the rule governing the liquidation of a support? From her
conjugal partnership of gains where the party who acted in bad faith
forfeits his share in the net profits. (A) grandfather.

(B) Since the marriage has been declared void, the rule for (B) brother.
liquidation of absolute community of property shall be followed.
(C) uncle.
(C) The liquidation of a co-ownership applies since the
annulment brought their property relation under the chapter on (D) first cousin.
property regimes without marriage.
SUGGESTED ANSWER: (A) grandfather.
(D) The law on liquidation of partnerships applies.
(27) Fidel, a Filipino with fair complexion, married Gloria. Before the
SUGGESTED ANSWER: (C) The liquidation of a co-ownership applies marriage, Gloria confessed to Fidel that she was two-month pregnant with
since the annulment brought their property relation under the chapter on the child of a black African who had left the country for good. When the
property regimes without marriage. child was born, Fidel could not accept it being too black in complexion.
What is the status of the child?
(25) X and Y agreed verbally before their marriage (a) on the paternity of
the illegitimate child of Y and (b) on the economic regime that will govern X (A) Illegitimate, because Gloria confessed that the child is not
and Y’s property relations. Is the verbal agreement valid? Fidel’s.

53
 (B) Illegitimate, because by the color of its skin, the child could (30) X insured himself for P5 million, designating Y, his wife, as his sole
not possibly be that of Fidel. beneficiary. The designation was irrevocable. A few years later, X had their
marriage annulled in court on the ground that Y had an existing prior
(C) Legitimate, because the child was born within a valid marriage. X subsequently died, Is Y entitled to the insurance benefits?
marriage.
(A) Yes, since the insurance was not dependent on the marriage.
(D) Legitimate, because Fidel agreed to treat the child as his
own after Gloria told him who the father was. (B) Yes, since her designation as beneficiary was irrevocable.

SUGGESTED ANSWER: (C) Legitimate, because the child was born (C) No, X’s designation of Y is revoked by operation of law upon
within a valid marriage. the annulment of their marriage based on Y’s fault.

(28) The husband’s acts of forcibly ejecting his wife without just cause (D) Yes, since without judicial revocation, X’s designation of Y
from the conjugal dwelling and refusing to take her back constitutes remains valid and binding.

(A) desertion. SUGGESTED ANSWER: (C) No, X’s designation of Y is revoked by

operation of law upon the annulment of their marriage based on Y’s fault.
(B) recrimination.
(31) May a spouse freely donate communal or conjugal property
(C) constructive abandonment. without the consent of the other?

(D) de facto separation. (A) Absolutely not, since the spouses co-own such property.

SUGGESTED ANSWER: (C) constructive abandonment. (B) Yes, for properties that the family may spare, regardless of
value.
(29) In his will, the testator designated X as a legatee to receive P2
million for the purpose of buying an ambulance that the residents of his (C) Yes, provided the donation is moderate and intended for
Barangay can use. What kind of institution is this? charity or family rejoicing.

(A) a fideicomissary institution. (D) Yes, in a donation mortis causa that the donor may still
revoke in his lifetime.
(B) a modal institution.
SUGGESTED ANSWER: (C) Yes, provided the donation is moderate and
(C) a conditional institution. intended for charity or family rejoicing.

(D) a collective institution. (32) The decedent died intestate leaving an estate of P10 million. He left
the following heirs: a) Marlon, a legitimate child and b) Cecilia, the legal
SUGGESTED ANSWER: (B) a modal institution. spouse. Divide the estate.

54
 (A) Marlon gets 1/4 and Cecilia gets 3/4. (B) No, since Y still has the right to use the land and the
materials left on it.
(B) Marlon gets 2/3 and Cecilia 1/3.
(C) Yes, since Y cannot use the land without the building.
(C) Marlon gets 1/2 and Cecilia gets 1/2.
(D) Yes, since the destruction of the building without the X’s
(D) Marlon gets 3/4 and Cecilia 1/4. fault terminated the usufruct.

SUGGESTED ANSWER: (C) Marlon gets 1/2 and Cecilia gets 1/2. SUGGESTED ANSWER: (B) No, since Y still has the right to use the land
and the materials left on it.
(38) Fernando executed a will, prohibiting his wife Marina from
remarrying after his death, at the pain of the legacy of P100 Million in her (40) In gratitude, the groom’s parents made a donation of a property in
favor becoming a nullity. But a year after Fernando’s death, Marina was so writing to the bride’s parents shortly before their children’s wedding. The
overwhelmed with love that she married another man. Is she entitled to the donation was accepted. What is the nature of the donation?
legacy, the amount of which is well within the capacity of the disposable
free portion of Fernando’s estate? (A) It is an ordinary donation since it was not given to the bride
or groom.
(A) Yes, since the prohibition against remarrying is absolute, it is
deemed not written. (B) It is donation propter nuptias since it was given with the
marriage in mind.
(B) Yes, because the prohibition is inhuman and oppressive and
violates Marina’s rights as a free woman. (C) It is an indirect donation propter nuptias since the bride
would eventually inherit the property from her parents.
(C) No, because the nullity of the prohibition also nullifies the
legacy. (D) It is a remunatory donation.

(D) No, since such prohibition is authorized by law and is not SUGGESTED ANSWER: (A) It is an ordinary donation since it was not
repressive; she could remarry but must give up the money. given to the bride or groom

SUGGESTED ANSWER: (D) No, since such prohibition is authorized by (41) X and Y, both Filipinos, were married and resided in Spain although
law and is not repressive; she could remarry but must give up the money. they intend to return to the Philippines at some future time. They have not
executed any marriage settlements. What law governs their property
(39) X, the owner, constituted a 10-year usufruct on his land as well as relations?
on the building standing on it in Y’s favor. After flood totally destroyed the
building 5 years later, X told Y that an act of God terminated the usufruct (A) They may choose between Spanish law and Philippine law.
and that he should vacate the land. Is X, the owner of the land, correct?
(B) Philippine law since they are both Filipinos.
(A) No, since the building was destroyed through no fault of Y.
(C) No regime of property relations will apply to them.

55
 (D) Spanish law since they live in Spain. (44) Illegitimate brothers and sisters, whether of full or half-blood, are
bound to support each other, EXCEPT when
SUGGESTED ANSWER: (B) Philippine law since they are both Filipinos.
(A) the brother or sister who needs support lives in another
(42) Birth determines personality. Death extinguishes it. Under what place.
circumstances may the personality of a deceased person continue to exist?
(B) such brothers and sisters are not recognized by their father.
(A) In case of re-appearance of a missing person presumed
dead. (C) the brother or sister in need stops schooling without valid
reason.
(B) In protecting the works of a deceased under intellectual
property laws. (D) the need for support of a brother or sister, already of age, is
due to the latter's fault.
(C) In case of declaration of presumptive death of a missing
spouse. SUGGESTED ANSWER: (D) the need for support of a brother or sister,
already of age, is due to the latter's fault.
(D) In the settlement of the estate of a deceased person.
(47) Rex, a philanthropist, donated a valuable lot to the municipality on
SUGGESTED ANSWER: (D) In the settlement of the estate of a the condition that it will build a public school on such lot within 2 years from
deceased person. its acceptance of the donation. The municipality properly accepted the
donation but did not yet build the public school after 2 years. Can Rex
(43) Six tenants sued X, the landowner, for willfully denying them water revoke the donation?
for their farms, which water happened to flow from land under X’s control,
his intention being to force them to leave his properties. Is X liable for his (A) Yes, since the donation is subject to a resolutory condition
act and why? which was not fulfilled.

(A) No, because the tenants must be content with waiting for (B) No, but Rex is entitled to recover the value of the land from
rainfall for their farms. the municipality.

(B) No, since X owns both the land and the water. (C) No, the transfer of ownership has been completed.

(C) Yes, because the tenants’ farms have the natural right of (D) Yes, the donation is not deemed made until the suspensive
access to water wherever it is located. condition has been fulfilled.

(D) Yes, since X willfully caused injury to his tenants contrary to SUGGESTED ANSWER: (A) Yes, since the donation is subject to a
morals, good customs or public policy. resolutory condition which was not fulfilled.

SUGGESTED ANSWER: (D) Yes, since X willfully caused injury to his (48) Illegitimate children, those not recognized by their biological
tenants contrary to morals, good customs or public policy. fathers, shall use the surname of their

56
 (A) biological father subject to no condition. (C) Those that married under the New Civil Code but did not
choose any of its regimes shall now be governed by the regime of
(B) mother or biological father, at the mother’s discretion. absolute community of property.

(C) mother. (D) They are superseded by the Family Code which has
retroactive effect.
(D) biological father unless he judicially opposes it.
SUGGESTED ANSWER: (A) The original property regimes are immutable
SUGGESTED ANSWER: (B) mother or biological father, at the mother’s and remain effective.
discretion.
(53) The testator executed a will following the formalities required by
(50) Congress passed a law imposing taxes on income earned out of a the law on succession without designating any heir. The only testamentary
particular activity that was not previously taxed. The law, however, taxed disposition in the will is the recognition of the testator's illegitimate child
incomes already earned within the fiscal year when the law took effect. Is with a popular actress. Is the will valid?
the law valid?
(A) Yes, since in recognizing his illegitimate child, the testator
(A) No, because laws are intended to be prospective, not has made him his heir.
retroactive.
(B) No, because the non-designation of heirs defeats the
(B) No, the law is arbitrary in that it taxes income that has purpose of a will.
already been spent.
(C) No, the will comes to life only when the proper heirs are
(C) Yes, since tax laws are the lifeblood of the nation. instituted.

(D) Yes, tax laws are an exception; they can be given retroactive (D) Yes, the recognition of an illegitimate heir is an ample
effect. reason for a will.

SUGGESTED ANSWER:(D) Yes, tax laws are an exception; they SUGGESTED ANSWER: D) Yes, the recognition of an illegitimate heir is
can be given retroactive effect. an ample reason for a will.

(52) What happens to the property regimes that were subsisting under (54) A left B, his wife, in the Philippines to work in Egypt but died in that
the New Civil Code when the Family Code took effect? country after a year’s continuous stay. Two months after A’s death, B gave
birth to a child, claiming it is A’s child. Who can assail the legitimacy of the
(A) The original property regimes are immutable and remain child?
effective.
(A) A’s other heirs apart from B.
(B) Those enjoying specific regimes under the New Civil Code
may adopt the regime of absolute community of property under the (B) The State which has interest in the welfare of overseas
Family Code. contract workers.

57
 (C) Any one who is outraged by B’s claim. (C) Yes since he married Z without first securing a judicial
declaration of nullity of his marriage to Y.
(D) No one since A died.
(D) Yes since his first marriage to Y in Los Angeles is valid.
SUGGESTED ANSWER: (A) A’s other heirs apart from B.
SUGGESTED ANSWER: (C) Yes since he married Z without first securing
(55) QR and TS who had a marriage license requested a newly appointed a judicial declaration of nullity of his marriage to Y.
Judge in Manila to marry them on the beach of Boracay. Since the Judge
maintained Boracay as his residence, he agreed. The sponsors were all (59) The wife filed a case of legal separation against her husband on the
public officials. What is the status of the marriage. ground of sexual infidelity without previously exerting earnest efforts to
come to a compromise with him. The judge dismissed the case for having
(A) Valid, since the improper venue is merely an irregularity; all been filed without complying with a condition precedent. Is the dismissal
the elements of a valid marriage are present. proper?

(B) Void, because the couple did not get local permit for a beach (A) No, efforts at a compromise will only deepen the wife’s
wedding. anguish.

(C) Voidable, because the Judge acted beyond his territorial (B) No, since legal separation like validity of marriage is not
jurisdiction and is administratively liable for the same. subject to compromise agreement for purposes of filing.

(D) Void, because the Judge did not solemnize the marriage (C) Yes, to avoid a family feud that is hurtful to everyone.
within the premises of his court.
(D) Yes, since the dispute could have been settled with the
SUGGESTED ANSWER: (A) Valid, since the improper venue is merely an parties agreeing to legal separation.
irregularity; all the elements of a valid marriage are present.
SUGGESTED ANSWER: (B) No, since legal separation like validity of
(56) X and Y, Filipinos, got married in Los Angeles, USA, using a marriage marriage is not subject to compromise agreement for purposes of filing.
license issued by the Philippine consul in Los Angeles, acting as Civil
Registrar. X and Y did not know that they were first cousins because their (60) An Australian living in the Philippines acquired shares of stock
mothers, who were sisters, were separated when they were quite young. worth P10 million in food manufacturing companies. He died in Manila,
Since X did not want to continue with the relation when he heard of it, he leaving a legal wife and a child in Australia and a live-in partner with whom
left Y, came to the Philippines and married Z. Can X be held liable for he had two children in Manila. He also left a will, done according to
bigamy? Philippine laws, leaving all his properties to his live-in partner and their
children. What law will govern the validity of the disposition in the will?
(A) No since X’s marriage to Y is void ab initio or did not exist.
(A) Australia law since his legal wife and legitimate child are
(B) No since X acted in good faith, conscious that public policy Australians and domiciled in Australia.
did not approve of marriage between first cousins.

58
 (B) Australian law since the intrinsic validity of the provisions of (A) Yes, the action for annulment is imprescriptible.
a will is governed by the decedent’s national law.
(B) No, since the marriage was merely voidable and Judy ratified
(C) Philippine law since the decedent died in Manila and he it by freely cohabiting with Baldo after the force and intimidation
executed his will according to such law. had ceased.

(D) Philippine law since the decedent’s properties are in the (C) No, since the action prescribed 5 years from the date of the
Philippines celebration of the marriage.

SUGGESTED ANSWER: (B) Australian law since the intrinsic validity of (D) Yes, because the marriage was celebrated without Judy's
the provisions of a will is governed by the decedent’s national law. consent freely given.

(62) A court declared Ricardo, an old bachelor, an absentee and SUGGESTED ANSWER: (B) No, since the marriage was merely voidable
appointed Cicero administrator of his property. After a year, it was and Judy ratified it by freely cohabiting with Baldo after the force and
discovered that Ricardo had died abroad. What is the effect of the fact of his intimidation had ceased.
death on the administration of his property?
(64) Is the wife who leaves her husband without just cause entitled to
(A) With Ricardo no longer an absentee but a deceased person, support?
Cicero will cease to be administrator of his properties.
(A) No, because the wife must always be submissive and
(B) The administration shall be given by the court having respectful to the husband.
jurisdiction over the intestate proceedings to a new administrator
whom it will appoint. (B) Yes. The marriage not having been dissolved, the husband
continues to have an obligation to support his wife.
(C) Cicero automatically becomes administrator of Ricardo’s
estate until judicially relieved. (C) No, because in leaving the conjugal home without just cause,
she forfeits her right to support.
(D) Cicero’s alienations of Ricardo's property will be set aside.
(D) Yes, since the right to receive support is not subject to any
SUGGESTED ANSWER: (B) The administration shall be given by the condition.
court having jurisdiction over the intestate proceedings to a new
administrator whom it will appoint. SUGGESTED ANSWER: (C) No, because in leaving the conjugal home
without just cause, she forfeits her right to support.
(63) Baldo, a rejected suitor, intimidated Judy into marrying him. While
she wanted to question the validity of their marriage two years after the (65) In the order of intestate succession where the decedent is
intimidation ceased, Judy decided in the meantime to freely cohabit with legitimate, who is the last intestate heirs or heir who will inherit if all heirs in
Baldo. After more than 5 years following their wedding, Judy wants to file a the higher level are disqualified or unable to inherit?
case for annulment of marriage against Baldo on ground of lack of consent.
Will her action prosper? (A) Nephews and nieces.

59
 (B) Brothers and sisters. (C) Yes, since they executed their joint will out of mutual love
and care, values that the generally accepted principles of
(C) State. international law accepts.

(D) Other collateral relatives up to the 5th degree of (D) Yes, since it is valid in the country where it was executed,
consanguinity. applying the principle of "lex loci celebrationis."

SUGGESTED ANSWER: (C) State. SUGGESTED ANSWER: (B) No, since Philippine law prohibits the
execution of joint wills and such law is binding on Ric and Josie even
(67) Joanne married James, a person with no known relatives. Through abroad.
James' hard work, he and his wife Joane prospered. When James died, his
estate alone amounted to P100 million. If, in his will, James designates (71) ML inherited from his father P5 million in legitime but he waived it
Joanne as his only heir, what will be the free portion of his estate. in a public instrument in favor of his sister QY who accepted the waiver in
writing. But as it happened, ML borrowed P6 million from PF before the
(A) Joanne gets all; estate has no free portion left. waiver. PF objected to the waiver and filed an action for its rescission on the
ground that he had the right to ML’s P5 million legitime as partial
(B) Joanne gets 1/2; the other half is free portion. settlement of what ML owed him since ML has proved to be insolvent. Does
PF, as creditor, have the right to rescind the waiver?
(C) Joanne gets 1/3; the remaining 2/3 is free portion.
(A) No, because the waiver in favor of his sister QY amounts to a
(D) Joanne gets 1/4; the remaining 3/4 is free portion. donation and she already accepted it.

SUGGESTED ANSWER: (B) Joanne gets 1/2; the other half is free (B) Yes, because the waiver is prejudicial to the interest of a
portion. third person whose interest is recognized by law.

(70) Ric and Josie, Filipinos, have been sweethearts for 5 years. While (C) No, PF must wait for ML to become solvent and, thereafter,
working in a European country where the execution of joint wills are sue him for the unpaid loan.
allowed, the two of them executed a joint holographic will where they
named each other as sole heir of the other in case either of them dies. (D) Yes, because a legitime cannot be waived in favor of a
Unfortunately, Ric died a year later. Can Josie have the joint will successfully specific heir; it must be divided among all the other heirs.
probated in the Philippines?
SUGGESTED ANSWER: (B) Yes, because the waiver is prejudicial to the
(A) Yes, in the highest interest of comity of nations and to honor interest of a third person whose interest is recognized by law.
the wishes of the deceased.
(72) While engaged to be married, Arnold and Josephine agreed in a
(B) No, since Philippine law prohibits the execution of joint wills public instrument to adopt out the economic regime of absolute community
and such law is binding on Ric and Josie even abroad. of property. Arnold acknowledged in the same instrument that Josephine’s
daughter Mary, is his illegitimate child. But Josephine died before the

60
marriage could take place. Does the marriage settlement have any SUGGESTED ANSWER: (A) Void, because he did not cause the judicial
significance? issuance of declaration of the nullity of his first marriage to Jenny before
marrying Leonora.
(A) None, since the instrument containing the marriage
settlement is essentially void for containing an unrelated matter. (74) T died intestate, leaving an estate of P9,000,000. He left as heirs
three legitimate children, namely, A, B, and C. A has two children, D and E.
(B) Yes, insofar as Arnold acknowledged Mary as his illegitimate Before he died, A irrevocably repudiated his inheritance from T in a public
child. instrument filed with the court. How much, if any, will D and E, as A’s
children, get from T’s estate?
(C) None, since the marriage did not take place.
(A) Each of D and E will get P1,500,000 by right of
(D) Yes, if they acquired properties while living together as representation since their father repudiated his inheritance.
husband and wife.
(B) Each of D and E will get P2,225,000 because they will inherit
SUGGESTED ANSWER: (B) Yes, insofar as Arnold acknowledged Mary from the estate equally with B and C.
as his illegitimate child.
(C) D and E will get none because of the repudiation; "B" and
(73) Joseph, a 17-year old Filipino, married Jenny, a 21-year old "C" will get A’s share by right of accretion.
American in Illinois, USA, where the marriage was valid. Their parents gave
full consent to the marriage of their children. After three years, Joseph filed (D) Each of D and E will get P2,000,000 because the law gives
a petition in the USA to promptly divorce Jenny and this was granted. When them some advantage due to the demise of "A".
Joseph turned 25 years, he returned to the Philippines and married Leonora.
What is the status of this second marriage? SUGGESTED ANSWER: (C) D and E will get none because of the
repudiation; "B" and "C" will get A’s share by right of accretion.
(A) Void, because he did not cause the judicial issuance of
declaration of the nullity of his first marriage to Jenny before (75) No decree of legal separation can be issued
marrying Leonora.
(A) unless the children’s welfare is attended to first.
(B) Valid, because Joseph's marriage to Jenny is void, he being
only 17 years of age when he married her. (B) without prior efforts at reconciliation shown to be futile.

(C) Valid, because his marriage to Leonora has all the elements (C) unless the court first directs mediation of the parties.
of a valid marriage.
(D) without prior investigation conducted by a public
(D) Void, because Joseph is still considered married to Jenny prosecutor.
since the Philippines does not recognize divorce.
SUGGESTED ANSWER: (B) without prior efforts at reconciliation shown
to be futile.

61
 (78) A natural obligation under the New Civil Code of the Philippines is (80) When the donor gives donations without reserving sufficient funds
one which for his support or for the support of his dependents, his donations are

(A) the obligor has a moral obligation to do, otherwise entitling (A) Rescissible, since it results in economic lesion of more than
the obligee to damages. 25% of the value of his properties.

(B) refers to an obligation in writing to do or not to do. (B) Voidable, since his consent to the donation is vitiated by
mindless kindness.
(C) the obligee may enforce through the court if violated by the
obligor. (C) Void, since it amounts to wanton expenditure beyond his
means.
(D) cannot be judicially enforced but authorizes the obligee to
retain the obligor’s payment or performance. (D) Reducible to the extent that the donations impaired the
support due to himself and his dependents.
SUGGESTED ANSWER: (D) cannot be judicially enforced but authorizes
the obligee to retain the obligor’s payment or performance. SUGGESTED ANSWER: (D) Reducible to the extent that the donations
impaired the support due to himself and his dependents.
(79) The husband assumed sole administration of the family’s mango
plantation since his wife worked abroad. Subsequently, without his wife’s (82) The residents of a subdivision have been using an open strip of land
knowledge, the husband entered into an antichretic transaction with a as passage to the highway for over 30 years. The owner of that land
company, giving it possession and management of the plantation with decided, however, to close it in preparation for building his house on it. The
power to harvest and sell the fruits and to apply the proceeds to the residents protested, claiming that they became owners of the land through
payment of a loan he got. What is the standing of the contract? acquisitive prescription, having been in possession of the same in the
concept of owners, publicly, peacefully, and continuously for more than 30
(A) It is void in the absence of the wife’s consent. years. Is this claim correct?

(B) It is void absent an authorization from the court. (A) No, the residents have not been in continuous possession of
the land since they merely passed through it in going to the
(C) The transaction is void and can neither be ratified by the highway.
wife nor authorized by the court.
(B) No, the owner did not abandon his right to the property; he
(D) It is considered a continuing offer by the parties, perfected merely tolerated his neighbors’ use of it for passage.
only upon the wife’s acceptance or the court’s authorization.
(C) Yes, residents of the subdivision have become owners by
SUGGESTED ANSWER: (D) It is considered a continuing offer by the acquisitive prescription.
parties, perfected only upon the wife’s acceptance or the court’s
authorization. (D) Yes, community ownership by prescription prevails over
private claims.

62
 SUGGESTED ANSWER: (A) No, the residents have not been in (88) Josie, 18, married Dante, 25, without her parents’ knowledge and
continuous possession of the land since they merely passed through it in consent, and lived with him. After a year, Josie returned to her parents’
going to the highway. home, complained of the unbearable battering she was getting from Dante,
and expressed a desire to have her marriage with him annulled. Who may
(83) The owner of a thing cannot use it in a way that will injure the right bring the action?
of a third person. Thus, every building or land is subject to the easement
which prohibits its proprietor or possessor from committing nuisance like (A) Dante.
noise, jarring, offensive odor, and smoke. This principle is known as
(B) Her parents.
(A) Jus vindicandi.
(C) Josie herself.
(B) Sic utere tuo ut alienum non laedas.
(D) The State.
(C) Jus dispondendi.
SUGGESTED ANSWER: (B) Her parents.
(D) Jus abutendi.
(89) X, a married man, cohabited with Y, an unmarried woman. Their
SUGGESTED ANSWER: (B) Sic utere tuo ut alienum non laedas. relation bore them BB, a baby boy. Subsequently, after X became a
widower, he married Y. Was BB legitimated by that marriage?
(87) When does the regime of conjugal partnership of gains begin to
exist? (A) Yes, since his parents are now lawfully married.

(A) At the moment the parties take and declare each other as (B) Yes, since he is an innocent party and the marriage rectified
husband and wife before officiating officer. the wrong done him.

(B) At the time the spouses acquire properties through joint (C) No, since once illegitimate, a child shall always remain
efforts. illegitimate.

(C) On the date the future spouses executed their marriage (D) No, since his parents were not qualified to marry each other
settlements because this is the starting point of their marital when he was conceived.
relationship.
SUGGESTED ANSWER: (D) No, since his parents were not qualified to
(D) On the date agreed upon by the future spouses in their marry each other when he was conceived.
marriage settlements since their agreement is the law between
them. (90) The presence of a vice of consent vitiates the consent of a party in a
contract and this renders the contract
SUGGESTED ANSWER: (A) At the moment the parties take and declare
each other as husband and wife before officiating officer. (A) Rescissible.

63
 (B) Unenforceable. (C) No, because the intention of the testator in giving the legacy
is to abrogate his entire obligation to Y.
(C) Voidable.
(D) No, because X had no instruction in his will to deliver more
(D) Void. than the legacy of P1 million to Y.

SUGGESTED ANSWER: (C) Voidable SUGGESTED ANSWER: (A) Yes, because the designation of Y as legatee
created a new and separate juridical relationship between them, that of
(91) Can common-law spouses donate properties of substantial value to testator-legatee.
one another?
(93) Josie owned a lot worth P5 million prior to her marriage to Rey.
(A) No, they are only allowed to give moderate gifts to each Subsequently, their conjugal partnership spent P3 million for the
other during family rejoicing. construction of a house on the lot. The construction resulted in an increase
in the value of the house and lot to P9 million. Who owns the house and the
(B) No, they cannot give anything of value to each other to lot?
prevent placing their legitimate relatives at a disadvantage.
(A) Josie and the conjugal partnership of gains will own both on
(C) Yes, unlike the case of legally married spouses, such a 50-50 basis.
donations are not prohibited.
(B) Josie will own both since the value of the house and the
(D) Yes, as long as they leave sufficient property for themselves increase in the property’s value is less than her lot’s value; but she is
and for their dependents. to reimburse conjugal partnership expenses.

SUGGESTED ANSWER: (A) No, they are only allowed to give moderate (C) Josie still owns the lot, it being her exclusive property, but
gifts to each other during family rejoicing. the house belongs to the conjugal partnership.

(92) X owed Y P1.5 million. In his will, X gave Y legacy of P1 million but (D) The house and lot shall both belong to the conjugal
the will provided that this legacy is to be set off against the P1.5 million X partnership, with Josie entitled to reimbursement for the value of
owed Y. After the set off, X still owed Y P500,000. Can Y still collect this the lot.
amount?
SUGGESTED ANSWER: (B) Josie will own both since the value of the
(A) Yes, because the designation of Y as legatee created a new house and the increase in the property’s value is less than her lot’s value;
and separate juridical relationship between them, that of testator- but she is to reimburse conjugal partnership expenses.
legatee.
(94) An action for reconveyance of a registered piece of land may be
(B) It depends upon the discretion of the probate court if a claim brought against the owner appearing on the title based on a claim that the
is filed in the testate proceedings. latter merely holds such title in trust for the plaintiff. The action prescribes,
however, within 10 years from the registration of the deed or the date of
the issuance of the certificate of title of the property as long as the trust had

64
not been repudiated. What is the exception to this 10-year prescriptive SUGGESTED ANSWER: (A) No, since only the couple can question the
period? validity of their marriage after they became 21 of age; their cohabitation
also convalidated the marriage.
(A) When the plaintiff had no notice of the deed or the issuance
of the certificate of title. (96) Pepito executed a will that he and 3 attesting witnesses signed
following the formalities of law, except that the Notary Public failed to
(B) When the title holder concealed the matter from the come. Two days later, the Notary Public notarized the will in his law office
plaintiff. where all signatories to the will acknowledged that the testator signed the
will in the presence of the witnesses and that the latter themselves signed
(C) When fortuitous circumstances prevented the plaintiff from the will in the presence of the testator and of one another. Was the will
filing the case sooner. validly notarized?

(D) When the plaintiff is in possession of the property. (A) No, since it was not notarized on the occasion when the
signatories affixed their signatures on the will.
SUGGESTED ANSWER: (D) When the plaintiff is in possession of the
property. (B) Yes, since the Notary Public has to be present only when the
signatories acknowledged the acts required of them in relation to
(95) Conrad and Linda, both 20 years old, applied for a marriage license, the will.
making it appear that they were over 25. They married without their
parents’ knowledge before an unsuspecting judge. After the couple has (C) Yes, but the defect in the mere notarization of the will is not
been in cohabitation for 6 years, Linda’s parents filed an action to annul the fatal to its execution.
marriage on ground of lack of parental consent. Will the case prosper?
(D) No, since the notary public did not require the signatories to
(A) No, since only the couple can question the validity of their sign their respective attestations again.
marriage after they became 21 of age; their cohabitation also
convalidated the marriage. SUGGESTED ANSWER: (B) Yes, since the Notary Public has to be
present only when the signatories acknowledged the acts required of
(B) No, since Linda’s parents made no allegations that earnest them in relation to the will.
efforts have been made to come to a compromise with Conrad and
Linda and which efforts failed. (97) Venecio and Ester lived as common-law spouses since both have
been married to other persons from whom they had been separated in fact
(C) Yes, since the marriage is voidable, the couple being below for several years. Hardworking and bright, each earned incomes from their
21 years of age when they married. respective professions and enterprises. What is the nature of their incomes?

(D) Yes, since Linda’s parents never gave their consent to the (A) Conjugal since they earned the same while living as husband
marriage. and wife.

(B) Separate since their property relations with their legal

spouses are still subsisting.

65
 (C) Co-ownership since they agreed to work for their mutual SUGGESTED ANSWER: (D) It is Karen’s exclusive property since she
benefit. bought it with her own money.

(D) Communal since they earned the same as common-law

spouses.

SUGGESTED ANSWER: (B) Separate since their property relations with

their legal spouses are still subsisting.

(98) What is the prescriptive period for filing an action for revocation of
a donation based on acts of ingratitude of the donee?

(A) 5 years from the perfection of the donation.

(B) 1 year from the perfection of the donation.

(C) 4 years from the perfection of the donation.

(D) Such action does not prescribe.

SUGGESTED ANSWER: (B) 1 year from the perfection of the donation.

(99) Before Karen married Karl, she inherited P5 million from her
deceased mother which amount she brought into the marriage. She later
used part of the money to buy a new Mercedes Benz in her name, which
Karen and her husband used as a family car. Is the car a conjugal or Karen’s
exclusive property?

(A) It is conjugal property since the spouses use it as a family

car.

(B) It is Karen’s exclusive property since it is in her name.

(C) It is conjugal property having been bought during the

marriage.

(D) It is Karen’s exclusive property since she bought it with her

own money.

66
 2010 BAR QUESTIONS Paternity & Filiation; Impugning Legitimacy (2010)
IV. Spouses B and G begot two offsprings. Albeit they had serious

personality differences, the spouses continued to live under one roof. B begot
PERSONS AND FAMILY (2010)
a son by another woman. G also begot a daughter by another man.

(A). If G gives the surname of B to her daughter by another man, what can
Marriage; Divorce Decrees; Foreign Spouse Divorces Filipino Spouse
B do to protect their legitimate children's interests? Explain. (5%)
(2010)
(B). If B acquiesces to the use of his surname by G’s daughter by another
I. True or False. (A). Under Article 26 of the Family Code, when a foreign
man, what is/are the consequence/s? Explain. (5%)
spouse divorces his/her Filipino spouse, the latter may re-marry by proving

only that the foreign spouse has obtained a divorce against her or him abroad.
SUGGESTED ANSWER:
(1%)
(A) B can impugn the status of G's daughter by another man as his

legitimate daughter on the ground that for biological reason he could not
SUGGESTED ANSWER :
have been the father of the child, a fact that may be proven by the DNA test.
FALSE, In Garcia v. Recio , 366 SCRA 437 (2001) , the SC held that for a
Having been born during the marriage between B and G, G's daughter by
Filipino spouse to have capacity to contract a subsequent marriage, it must
another man is presumed as the child of B under Article 164 of the Family
also be proven that the foreign divorced obtained abroad by the foreigner
Code. In the same action to impugn, B can pray for the correction of the status
spouse give such foreigner spouse capacity to remarry.
of the said daughter in her record of birth.

(B) If B acquiesces and does not file the action to impugn the legitimacy
ALTERNATIVE ANSWER:
of the child within the prescriptive period for doing so in Article 170 of the
TRUE, Art 26 (2) (FC), clearly provides that the decree of divorce obtained
Family Code, G's daughter by another man shall be conclusively presumed as
abroad by the foreigner spouse is sufficient to capacitate the Filipino spouse
the legitimate daughter of B by G.
to remarry.

67
 Marriage; Annulment; Support Pendente Lite (2010) 2, Family Code; Javier v. Lucero, 94 Phil. 634 {1954}].Their having squandered
V. G filed on July 8, 2000 a petition for declaration of nullity of her the money given to them for their education will not deprive them of their
marriage to B. During the pendency of the case, the couple entered into a right to complete an education, or to extinguish the obligation of the parents
compromise agreement to dissolve their absolute community of property. B to ensure the future of their children.
ceded his right to their house and lot and all his shares in two business firms
to G and their two children, aged 18 and 19. B also opened a bank account in
the amount of P3 million in the name of the two children to answer for their
educational expenses until they finish their college degrees. For her part, G
undertook to shoulder the day-to-day living expenses and upkeep of the
children. The Court approved the spouses’ agreement on September 8, 2000.
(A) Suppose the business firms suffered reverses, rendering G unable to
support herself and the children. Can G still ask for support pendente lite from
B? Explain. (3%)
(B) Suppose in late 2004 the two children had squandered the P3 million
fund for their education before they could obtain their college degrees, can
they ask for more support from B? Explain. (3%)

SUGGESTED ANSWER:
(A) Yes, G can still ask for support from B because during the pendency of
the action, the marriage between them is considered still subsisting (Art 69,
Family Code). Being considered still married to each other, B and G still have
the obligation to support each other. The compromise agreement cannot
operate to waive future support when needed (Art 2035, Civil Code). After
the compromise agreement was approved by the court and the properties of
the marriage were distributed, there remained no more common properties
of B and G. While Art 198 of Family Code appears to limit the source of
support to the common properties of the said marriage in case of the
pendency of an action to declare the nullity of the marriage, Art 94 and Art
121 indicate otherwise. Under the said articles, the spouses remain
personally and solidarily liable with their separate properties for support even
though, for whatever reason, there are no more community or partnership
properties left. The judgment based on the compromise dissolving the
property relations of B and G does not bar G from asking support pendente
lite. The dissolution of the property relations of the spouses did not terminate
the obligation between them to support each other. The declaration of nullity
of their marriage is what terminates the right of G to be supported by B as his
spouse.
(B) Yes, the two children can still ask for support for schooling or training
for some professions, trade or vocation, even beyond the age of majority until
they shall have finished or completed their education (Article 194, Paragraph

68
 Paternity & Filiation; In Vitro Fertilization; Surrogate Mother’s Remedy (C) Majorette, the mother, can exercise parental authority. Since the child
to Regain Custody (2010) was born out of wedlock, the child is illegitimate and the mother has the
VI. Gigolo entered into an agreement with Majorette for her to carry in exclusive parental authority and custody over the child.
her womb his baby via in vitro fertilization. Gigolo undertook to underwrite
Majorette’s pre-natal expenses as well as those attendant to her delivery. ALTERNATIVE ANSWER:
Gigolo would thereafter pay Majorette P2 million and, in return, she would Gigolo can exercise parental authority over the child. Majorette has no
give custody of the baby to him. After Majorette gives birth and delivers the blood relation to the child. She is just a “carrier” of the child.
baby to Gigolo following her receipt of P2 million, she engages your services
as her lawyer to regain custody of the baby. (D) If Gigolo voluntarily recognized the child as his illegitimate child in
(A) What legal action can you file on behalf of Majorette? Explain. (2.5%) accordance with Article 175 in relation to Article 172 of the Family Code, the
(B) Can Gigolo demand from Majorette the return of the P2 million if he child is entitled to support and inheritance from Gigolo.
returns the baby? Explain. (2.5%)
(C) Who of the two can exercise parental authority over the child? ALTERNATIVE ANSWER:
Explain. (2.5%) Yes, because Gigolo is the natural and biological parent of the baby.
(D) Is the child entitled to support and inheritance from Gigolo? Explain.
(2.5%)

SUGGESTED ANSWER:
(A) As her lawyer, I can file a petition for habeas corpus on behalf
Majorette to recover custody of her child. Since she is the mother of the child
that was born out of wedlock, she has exclusive parental authority and
custody over the child. Gigolo, therefore, has no right to have custody of the
child and his refusal to give up custody will constitute illegal detention for
which habeas corpus is the proper remedy.

ALTERNATIVE ANSWER:
The action to regain custody will not prosper. In the first place Majorette
cannot regain custody of the baby. As surrogate mother she merely carries
the child in her womb for its development. The child is the child of the natural
parents- Gigolo and his partner. The agreement between Gigolo and
Majorette is a valid agreement.

(B) No, he cannot. Both he and Majorette are guilty of violating the
provision of the Anti-Child Abuse Law (RA7610) on child trafficking. Being in
pari delicto, the partners shall be left where they are and Gigolo cannot
demand the return of what he paid.

ALTERNATIVE ANSWER:
Yes. The agreement between Gigolo and Majorette is a valid agreement.

69
 Property Relations; Void Marriages (2010) purchase price using the gift from her parents. Although the gift was acquired
VII. G and B were married on July 3, 1989. On March 4, 2001, the by G during her cohabitation with B, it is her exclusive property. It did not
marriage, which bore no offspring, was declared void ab initio under Article consist of wage or salary or fruit of her work or industry.
36 of the Family Code. At the time of the dissolution of the marriage, the (3) 1/3 of the house is co-owned by B and G because the payment came
couple possessed the following properties: a house and lot acquired by B on from their co-owned funds, i.e., their joint income during their cohabitation
August 3, 1988, one third (1/3) of the purchase price (representing which is shared by them equally in the absence of any proof to the contrary.
downpayment) of which he paid; one third (1/3) was paid by G on February After summing up their prospective shares, B and G are undivided co-owners
14, 1990 out of a cash gift given to her by her parents on her graduation on of the house and lot in equal shares. As to the apartment, it is owned
April 6, 1989; and the balance was paid out of the spouses’joint income; and exclusive by B because he acquired it before their cohabitation. Even if he
an apartment unit donated to B by an uncle on June 19, 1987. acquired it during their cohabitation, it will still be his exclusive property
(A) Who owns the foregoing properties? Explain. (5%) because it did not come from his wage or salary, or from his work or industry.
(B) If G and B had married on July 3, 1987 and their marriage was It was acquired gratuitously from his uncle.
dissolved in 2007, who owns the properties? Explain. (5%) (B) The answer is the same as in letter A. Since the parties to the marriage
which was later declared void ab initio were capacitated to marry each other,
SUGGESTED ANSWER: the applicable law under the New Civil Code was Article 144.This Article is
(A) Since the marriage was declared void ab initio in 2001, no Absolute substantially the same as Article 147 of the Family Code. Hence, the
Community or Conjugal Partnership was ever established between B and G. determination of ownership will remain the same as in question A. And even
Their property relation is governed by a “special co-ownership” under Article assuming that the two provisions are not the same, Article 147 of the Family
147 of the Family Code because they were capacitated to marry each other. Code is still the law that will govern the property relations of B and G because
Under that Article 147, wages and salaries of the “former spouses” earned under Article 256, the Family Code has retroactive effect insofar as it does not
during their cohabitation shall be owned by them in equal shares while prejudice or impair vested or acquired rights under the new Civil Code or
properties acquired thru their work for industry shall be owned by them in other laws. Applying Article 147 retroactively to the case of G and B will not
proportion to their respective contributions. Care and maintenance of the impair any vested right. Until the declaration of nullity of the marriage under
family is recognized as a valuable contribution. In the absence of proof as to the Family Code, B and G have not as yet acquired any vested right over the
the value of their respective contributions, they shall share equally. If properties acquired during their cohabitation.
ownership of the house and lot was acquired by B on August 3, 1988 at the
time he bought it on installment before he got married, he shall remain owner
of the house and lot but he must reimburse G for all the amounts she
advanced to pay the purchase price and for one-half share in the last payment
from their joint income. In such case, the house and lot were not acquired
during their cohabitation, hence, are not co-owned by B and G. But if the
ownership of the house and lot was acquired during the cohabitation, the
house and lot will be owned as follows:
(1) 1/3 of the house and lot is owned by B. He is an undivided co-owner
to that extent for his contributions in its acquisition in the form of the down
payment he made before the celebration of the marriage. The money he used
to pay the down payment was not earned during the cohabitation, hence, it
is his exclusive property.
(2) 1/3 of the house and lot is owned by G. She is an undivided co-owner
to the extent for her contribution in its acquisition when she paid 1/3 of the

70
 Adoption; Illegitimate Child (2010) Qualifications of Adopter (2010)
VIII. Spouses Rex and Lea bore two children now aged 14 and 8. During IX. Eighteen-year old Filipina Patrice had a daughter out of wedlock whom
the subsistence of their marriage, Rex begot a child by another woman. He is she named Laurie. At 26, Patrice married American citizen John who brought
now 10 years of age. On Lea’s discovery of Rex’s fathering a child by another her to live with him in the United States of America. John at once signified his
woman, she filed a petition for legal separation which was granted. Rex now willingness to adopt Laurie. Can John file the petition for adoption? If yes,
wants to adopt his illegitimate child. what are the requirements? If no, why? (5%)
(A) Whose consent is needed for Rex’s adoption of his illegitimate child?
(2.5%) SUGGESTED ANSWER:
(B) If there was no legal separation, can Rex still adopt his illegitimate No, John cannot file the petition to adopt alone. Philippine law requires
child? Explain. (2.5%) husband and wife to adopt jointly except on certain situations enumerated in
the law. The case of John does not fall in any of the exceptions (R.A. 8552).
SUGGESTED ANSWER:
(A) The consent of the 14-year-old legitimate child, of the 10- year -old
illegitimate child and of the biological mother of the illegitimate child are
needed for the adoption (Section 7 and 9, RA 8552). The consent of Lea is no
longer required because there was already a final decree of legal separation.
(B) Yes, he can still adopt his illegitimate child but with the consent of his
spouse, of his 14-year-old legitimate child, of the illegitimate child, and of the
biological mother of the illegitimate child (Section 7 and 9, RA 8552).

71
 Property Relations; Void Marriages (2010) legitimation was rendered ineffective when the said marriage was later on
X. In 1997, B and G started living together without the benefit of declared null and void due to absence of a marriage license. Under Article 178
marriage. The relationship produced one offspring, Venus. The couple of the Family Code, “legitimation shall take place by a subsequent valid
acquired a residential lot in Parañaque. After four (4) years or in 2001, G marriage between parents. The annulment of a voidable marriage shall not
having completed her 4-year college degree as a fulltime student, she and B affect the legitimation.” The inclusion of the underscored portion in the
contracted marriage without a license. The marriage of B and G was, two Article necessarily implies that the Article's application is limited to voidable
years later, declared null and void due to the absence of a marriage license. marriages. It follows that when the subsequent marriage is null or void, the
(A). If you were the judge who declared the nullity of the marriage, to legitimation must also be null and void. In the present problem, the marriage
whom would you award the lot? Explain briefly. (3%) between B and G was not voidable but void. Hence, Venus has remained an
(B). Is Venus legitimate, illegitimate, or legitimated? Explain briefly. (3%) illegitimate child.

SUGGESTED ANSWER:
(A) Since the marriage was null and void, no Absolute Community or
Conjugal Partnership was established between B and G. Their properties are
governed by the “special co-ownership” provision of Article 147 of the Family
Code because both B and G were capacitated to marry each other. The said
Article provides that when a man and a woman who are capacitated to marry
each other, live exclusively with each other as husband and wife without the
benefit of marriage, or under a void marriage: (1) their wages and salaries
shall be owned by them in equal shares; and (2) property acquired by both of
them through their work or industry shall be governed by the rules on co-
ownership. In co-ownership, the parties are co-owners if they contributed
something of value in the acquisition of the property. Their share is in
proportion to their respective contributions. In an ordinary co- ownership the
care and maintenance of the family is not recognized as a valuable
contribution for the acquisition of a property. In the Article 147 “special co-
ownership” however, care and maintenance is recognized as a valuable
contribution which will entitle the contributor to half of the property
acquired. Having been acquired during their cohabitation, the residential lot
is presumed acquired through their joint work and industr under Article 147,
hence, B and G are co-owners of the said property in equal shares. Article 147
also provides that when a party to the void marriage was in bad faith, he
forfeits his share in the co-ownership in favor of the common children or
descendants, the default of children or descendants, the forfeited share shall
belong to the innocent party. In the foregoing problem, there is no showing
that one party was in bad faith. Hence, both shall be presumed in good faith
and no forfeiture shall take place.
(B) Venus is illegitimate. She was conceived and born outside a valid
marriage. Thus, she is considered illegitimate (Art 165, Family Code). While
Venus was legitimated by the subsequent marriage of her parents, such

72
 CONFLICT OF LAWS (2010) PROPERTY (2010)

Jurisdiction; Courts may Assume Jurisdiction over Conflict of Laws Cases Hidden treasures (2010)
(2010) II. (B) O, owner of Lot A, learning that Japanese soldiers may have buried
III. Define, Enumerate or Explain. (2% each) gold and other treasures at the adjoining vacant Lot B belonging to spouses X
(C) Give at least two reasons why a court may assume jurisdiction & Y, excavated in Lot B where she succeeded in unearthing gold and precious
over a conflict of laws case. stones. How will the treasures found by O be divided? (1%)
(1). 100% to O as finder
SUGGESTED ANSWER: (2). 50% to O and 50% to the spouses X and Y
(1) Statute theory. There is a domestic law authorizing the local court to (3). 50% to O and 50% to the state
assume jurisdiction. (4). None of the above.
(2) Comity theory. The local court assumes jurisdiction based on the
principle of comity or courtesy. SUGGESTED ANSWER:
No. 4. None of the above. The general rule is that the treasure shall
ALTERNATIVE ANSWER: belong to the spouses X and Y, the owner of Lot B. Under Article 438 (NCC),
(1) Public Order. To maintain peace and order, disputes that disturb the the exception is that when the discovery of a hidden treasure is made on the
peace of the forum should be settled by the court of the forum even though property of another and by chance, one-half thereof shall belong to the
the application of the foreign law is necessary for the purpose. owner of the land and the other one-half is allowed to the finder. In the
(2) Humanitarian Principle. An aggrieved party should not be left without problem, the finding of the treasure was not by chance because O knew that
remedy in a forum even though the application of the foreign law by the the treasure was in Lot B. While a trespasser is also not entitled to any share,
courts of the forum is unavoidable in order to extend relief. and there is no indication in the problem whether or not O was a trespasser,
O is not entitled to a share because the finding was not “by chance.”

73
 Donation (2010) Easement; Right of Way (2010)
II. (C) A executed a Deed of Donation in favor of B, a bachelor, covering a XIII. Franz was the owner of Lot E which was surrounded by four (4) lots
parcel of land valued at P1 million. B was, however, out of the country at the one of which – Lot C – he also owned. He promised Ava that if she bought Lot
time. For the donation to be valid, (1%) E, he would give her a right of way in Lot C. Convinced, Ava bought Lot E and,
(1). B may e-mail A accepting the donation. as promised, Franz gave her a right of way in Lot C. Ava cultivated Lot E and
(2). The donation may be accepted by B’s father with whom he lives. used the right of way granted by Franz. Ava later found gainful employment
(3). B can accept the donation anytime convenient to him. abroad. On her return after more than 10 years, the right of way was no
(4). B’s mother who has a general power of attorney may accept the longer available to her because Franz had in the meantime sold Lot C to Julia
donation for him. who had it fenced.
(5). None of the above is sufficient to make B’s acceptance valid (A). Does Ava have a right to demand from Julia the activation of
her right of way? Explain. (2.5%)
SUGGESTED ANSWER: (B). Assuming Ava opts to demand a right of way from any of the
No. 5 None of the above is sufficient to make B's acceptance valid. Since owners of Lots A, B, and D, can she do that? Explain. (2.5%)
the donation covered an immovable property, the donation and the
acceptance must be in public document and e-mail is not a public document. SUGGESTED ANSWER:
Hence, No.1 is false. No. 2 and No.4 are both false. The acceptance by the (A) Yes. Ava has the right to demand from Julia the activation of the right
donee’s father alone or mother alone, even in a public document, is not of way, for the following reasons:
sufficient because the father and mother did not have a special power of (1) The easement of the right of way is a real right which attaches to, and
attorney for the purpose. Under Article 745 (NCC), the donee must accept the is inseperable from, the estate to which it belongs.
donation personally, or through an authorized person with a special power of (2) The sale of the property includes the easement or servitude, even if
attorney for the purpose; otherwise, the donation shall be void. No.3 is also the deed of sale is silent on the matter.
false. B cannot accept the donation anytime at his convenience. Under Article (3) The vendee of the property in which a servitude or easement exists
749 NCC, the donee may accept the donation only during the lifetime of the cannot close or put obstructions thereon to prevent the dominant estate
donor. from using it.
(4) Ava’s working abroad for more than ten (10) years should not be
construed as non-user, because it cannot be implied from the fact that she or
those she left behind to cultivate the lot no longer use the right of way.
Note: Since a right of way is a discontinuous easement, the period of ten
years of non-user, shall be computed from the day it ceased to be used under
Act 6341 (2) CC.
(5) Renunciation or waiver of an easement must be specific, clear, express
and made in a public instrument in accordance of Art 1358 of the New Civil
Code.

ALTERNATIVE ANSWER:
Yes. Ava has the right to demand from Julia the activation of the right of
way. A voluntary easement of right of way, like any other contract, could be
extinguished only by mutual agreement or by renunciation of the owner of
the dominant estate. Also, like any other contract, an easement is generally
effective between parties, their heirs and assignees, except in case where the

74
rights and obligations arising from the contract are not transmissible by their SUCCESSION (2010)
nature, or by stipulations or by provision of law (Unisource Commercial v.
Chung, 593 SCRA 530 [2009]). Wills; Prohibition to Partition of a Co-Owned Property (2010)
I. True or False. (B) X, a widower, died leaving a will stating that the house
(B) Yes. Ava has the option to demand a right of way on any of the and lot where he lived cannot be partitioned for as long as the youngest of
remaining lots of Franz more so after Franz sold lot C to Julia. The essential his four children desires to stay there. As coheirs and co-owners, the other
elements of a legal right of way under Art 649 and 650 of the New Civil Code three may demand partition anytime. (1%)
are complied with.
SUGGESTED ANSWER:
ALTERNATIVE ANSWER: FALSE. The other three co–heirs may not anytime demand the partition
Yes. Ava has the option to demand a right of way from the other lots. The of the house and lot since it was expressly provided by the decedent in his
law provides that whenever a piece of land acquired by sale, exchange or will that the same cannot be partitioned while his youngest child desires to
partition is surrounded by other estates of the vendor, exchanger, or co- stay there. Article 1083 of the New Civil Code allows a decedent to prohibit,
owner, he shall be obliged to grant a right of way without indemnity (Art 652, by will, the partition of a property and his estate for a period not longer than
NCC). 20 years no matter what his reason maybe. Hence, the three co-heir cannot
demand its partition at anytime but only after 20 years from the death of
ALTERNATIVE ANSWER: their father. Even if the deceased parent did not leave a will, if the house and
No. There was merely a promise to Ava that a right of way shall be lot constituted their family home, Article 159 of the Family Code prohibits its
granted to her in lot C if Ava purchase lot E. The promise was not reduced to partition for a period of ten (10) years, or for as long as there is a minor
writing (Obra v. Baldria, 529 SCRA 621 [2007]). Hence, it was not or could not beneficiary living in the family home.
have been registered as to warn buyers of lot C about the existence of the
easement on the property. Not having been annotated on the TCT to lot C,
the buyer acquired lot C free from such right of way granted to Ava.

75
 Notarial will (2010) Heirs; Intestate Succession; Legitime; Computation (2010)
II. (D) A executed a 5-page notarial will before a notary public and three XI. The spouses Peter and Paula had three (3) children. Paula later
witnesses. All of them signed each and every page of the will. One of the obtained a judgment of nullity of marriage. Their absolute community of
witnesses was B, the father of one of the legatees to the will. What is the property having been dissolved, they delivered P1 million to each of their 3
effect of B being a witness to the will? (1%) children as their presumptive legitimes. Peter later re-married and had two
(1). The will is invalidated (2) children by his second wife Marie. Peter and Marie, having successfully
(2). The will is valid and effective engaged in business, acquired real properties. Peter later died intestate.
(3). The legacy given to B’s child is not valid (A). Who are Peter’s legal heirs and how will his estate be divided
among them? (5%)
SUGGESTED ANSWER: (B). What is the effect of the receipt by Peter’s 3 children by his
No. 3. The legacy given to B's child is not valid. The validity of the will is first marriage of their presumptive legitimes on their right to inherit
not affected by the legacy in favor of the son of an attesting witness to the following Peter’s death? (5%)
will. However, the said legacy is void under Article 823 NCC.
SUGGESTED ANSWER:
ALTERNATIVE ANSWER: (A) The legal heirs of Peter are his children by the first and second
No. 2 .The will is valid and effective. Under Article 823 (NCC ),the legacy marriages and his surviving second wife. Their shares in the estate of Peter
given in favor of the son of an instrumental witness to a will has no effect on will depend, however, on the cause of the nullity of the first marriage. If the
the validity of the will. Hence, the will is valid and effective. nullity of the first marriage was psychological incapacity of one or both
spouses, the three children of that void marriage are legitimate and all of the
legal heirs shall share the estate of Peter in equal shares. If the judgment of
nullity was for other causes, the three children are illegitimate and the estate
shall be distributed such that an illegitimate child of the first marriage shall
receive half of the share of a legitimate child of the second marriage, and the
second wife will inherit a share equal to that of a legitimate child. In no case
may the two legitimate children of the second marriage receive a share less
than one-half of the estate which is their legitime. When the estate is not
sufficient to pay all the legitimes of the compulsory heirs, the legitime of the
spouse is preferred and the illegitimate children suffer the reduction.

Computation:

(A) If the ground of nullity is psychological incapacity:
3 children by first marriage 1/6 of the estate for each
2 children by second marriage 1/6 of the estate for each
Surviving second spouse 1/6 of the estate

(B) If the ground of nullity is not psychological capacity:
2 legitimate children ¼ of the estate for each of
second marriage

76
 Surviving second spouse ¼ of the estate
3 illegitimate children 1/12 of estate for each of first
marriage

Note: The legitime of an illegitimate child is supposed to be ½ the legitime
of a legitimate child or 1/8 of the estate. But the estate will not be sufficient
to pay the said legitime of the 3 illegitimate children, because only ¼ of the
estate is left after paying the legitime of the surviving spouse which is
preferred. Hence, the remaining ¼ of the estate shall be divided among the 3
illegitimate children.

(B) In the distribution of Peter’s estate, ½ of the presumptive legitime
received by the 3 children of the first marriage shall be collated to Peter’s
estate and shall be imputed as an advance on their respective inheritance
from Peter. Only half of the presumptive legitime is collated to the estate of
Peter because the other half shall be collated to the estate of his first wife.

77
 2009 BAR QUESTIONS III.
I. TOPIC: FAMILY, VALIDITY OF A MARRIAGE, ESSENTIAL/FORMAL
REQUISITES,
TRUE OR FALSE
In December 2000, Michael and Anna, after obtaining a valid marriage
TOPIC: SUCCESSION, RESERVA TRONCAL
license, went to the Office of the Mayor of Urbano, Bulacan, to get married.
(b) In reserva troncal, all reservatarios (reservees) inherit as a class in The Mayor was not there, but the Mayor’s secretary asked Michael and Anna
equal shares regardless of their proximity in degree to the prepositus? and their witnesses to fill up and sign the required marriage contract forms.
The secretary then told them to wait, and went out to look for the Mayor who
SUGGESTED ANSWER: FALSE. Not all the relatives within the third degree was attending a wedding in a neighboring municipality.
will inherit as reservatario , and not all those who are entitled to inherit will
inherit in the equal shares . The applicable laws of intestate succession will When the secretary caught up with the Mayor at the wedding reception,
determine who among the relatives will inherit as reservatarios and what she showed him the marriage contract forms and told him that the couple
shares they will take, i.e., the direct line excludes the collateral, the and their witnesses were waiting in his office. The Mayor forthwith signed all
descending direct line excludes the ascending ,the nearer excludes the more the copies of the marriage contract, gave them to the secretary who returned
remote, the nephews and nieces exclude the uncles and the aunts, and half to the Mayor’s office.' She then gave copies of the marriage contract to the
blood relatives inherit half the share of full-blooded relatives. parties, and told Michael and Anna that they were already married.
Thereafter, the couple lived together as husband and wife, and had three
sons.

TOPIC: PERSONS, LEGITIMATION (a) Is the marriage of Michael and Anna valid, voidable, or void?

(e) A Dead child can be legitimated. SUGGESTED ANSWER: The marriage is void because the formal requisite
of marriage ceremony was absent (Art. 3, F.C. 209, Family Code).
SUGGESTED ANSWER:
ALTERNATIVE ANSWER: The marriage is void because an essential
TRUE To be legitimated, the law does not require a child to be alive at the requisite was absent: consent of the parties freely given in the presence of
same time of the marriage of his / her parents ( Article 177, FC ). Furthermore, the solemnizing officer (Art 2, FC).
Art. 181 of the Family Code which states that “[Th]e llegitimation of children
who died before the celebration of marriage will benefit their descendants,” (b) What is the status of the three children of Michael and Anna?
does not preclude instances where such legitimation will benefit no one but
the child's ascendants, or other relatives . SUGGESTED ANSWER: The children are illegitimate, having been born
outside a valid marriage.

(c) What property regime governs the properties acquired by the
couple?

SUGGESTED ANSWER: The marriage being void, the property relationship

that governed their union is special co-ownership under Article 147 of the
Family Code. This is on the assumption that there was no impediment for
them to validly marry each other.

78
 IV. 2. if he will remarry, file a petition for the recognition and enforcement
of the foreign judgment of divorce (Rule 39, Rules of Court).
TOPIC: FAMILY, ARTICLE 26, DIVORCE BY A FOREIGN SPOUCE,
RECOGNITION
(c) Harry tells you that he has fallen in love with another woman,
Harry married Wilma, a very wealthy woman. Barely five (5) years into Elizabeth, and wants to marry her because, after all, Wilma is already
the marriage, Wilma fell in love with Joseph. Thus, Wilma went to a small married to Joseph. Can Harry legally marry Elizabeth? Explain. (2%)
country in Europe, became a naturalized citizen of that country, divorced j
Harry, and married Joseph. A year thereafter, Wilma and Joseph returned and SUGGESTED ANSWER:
established permanent residence in the Philippines.
Yes, he can validly marry Elizabeth, applying the doctrine laid down by
(a) Is the divorce obtained by Wilma from Harry-recognized in the the Supreme Court in Republic v. Obrecido (427 SCRA 114 [2005]).
Philippines? Explain your answer. (3%)
Under the second paragraph of Article 26 of the Family Code, for the
SUGGESTED ANSWER: Filipino spouse to have capacity to remarry, the law expressly requires the
spouse who obtained the divorce to be a foreigner at the time of the
As to Wilma, the divorce obtained by her is recognized as valid in the marriage. Applying this requirement to the case of Harry, it would seem that
Philippines because she is now a foreigner. Philippine personal laws do not he is not given the capacity to remarry. This is because Wilma was a Filipino
apply to a foreigner. However, recognition of the divorce as regards Harry will at the time of her marriage to Harry.
depend on the applicability to his case of the second paragraph of Article 26
of the Family Code. If it is applicable, divorce is recognized as to him and, In Republic v. Obrecido, however, the Supreme Court ruled that a Filipino
therefore, he can remarry. However, if it is not applicable, divorce is not spouse is given the capacity to remarry even though the spouse who obtained
recognized as to him and, consequently, he cannot remarry. the divorce was a Filipino at the time of the marriage, if the latter was already
a foreigner when the divorce was obtained abroad. According to the Court,
ANOTHER SUGGESTED ANSWER: to rule otherwise will violate the equal protection clause of the Constitution.
Yes, the divorce obtained by Wilma is recognized as valid in the
Philippines. At the time she got the divorce, she was already a foreign national
having been naturalized as a citizen of that “small country in Europe.” Based
on precedents established by the Supreme Court (Bayot v. CA, 570SCRA 472
[2008]), divorce obtained by a foreigner is recognized in the Philippines if
validly obtained in' accordance with his or her national law.

(b) If Harry hires you as his lawyer, what legal recourse would you
advise him to take? Why? (2%)

SUGGESTED ANSWER:

I will advise Harry to:

1. dissolve and liquidate his property relations with Wilma; and

79
 V VI

TOPIC: SUCCESSION, PROBATE
TOPIC: PERSONS/SUCCESSION, FILIATION, ACKNOWLEDGING
ILLEGITIMATE CHILDREN On December 1, 2000, Dr. Juanito Fuentes executed a holographic will,
wherein he gave nothing to his recognized illegitimate son, Jay. Dr. Fuentes
Four children, namely: Alberto, Baldomero, Caridad, and Dioscoro, were left for the United States, passed the New York medical licensure
born to the spouses Conrado and Clarita de la Costa. The children’s birth examinations, resided therein, and became a naturalized American citizen.
certificates were duly signed by Conrado, showing them to be the couple’s He died in New York in 2007. The laws of New York do not recognize
legitimate children. holographic wills or compulsory heirs.

Later, one Edilberto de la Cruz executed a notarial document (a) Can the holographic will of Dr. Fuentes be admitted to probate in the
acknowledging Alberto and Baldomero as his illegitimate children with Philippines? Why or why not? (3%)
Clarita. Edilberto died leaving substantial properties. In the settlement of his
estate, Alberto and Baldomero intervened claiming shares as the deceased’s SUGGESTED ANSWER:
illegitimate children. The legitimate family of Edilberto opposed the claim.
Yes, the holographic will of Dr. Fuentes may be admitted to probate in
Are Alberto and Baldomero entitled to share in the estate of Edilberto? the Philippines because there is no public policy violated by such probate. The
Explain. (4%) only issue at probate is the due execution of the will which includes the
formal validity of the will. As regards formal validity, the only issue the court
SUGGESTED ANSWER: will resolve at probate is whether or not the will was executed in accordance
with the form prescribed by the law observed by the testator in the execution
No, Alberto and Baldomero are not entitled to share in Edilberto’s estate. of his will. For purposes of probate in the Philippines, an alien testator may
They are not related at all to Edilberto. They were born during the marriage observe the law of the place where the will was executed (Article 17, NCC),
of Conrado and Clarita, hence, are considered legitimate children of the said or the formalities of the law of the place where he resides, or according to
spouses. This status is conferred on them at birth by law. the formalities of the law of his own country, or in accordance with the
Philippine Civil Code (Art. 816, NCC).Since Dr. Fuentes executed his will in
Under Philippine law, a person cannot have more than one natural
accordance with Philippine law, the Philippine court shall apply the New Civil
filiation. The legitimate filiation of a person can be changed only if the
Code in determining the formal validity of the holographic will. The
legitimate father will successfully impugn such status.
subsequent change in the citizenship of Dr. Fuentes did not affect the law
In the problem, therefore, the filiation of Alberto and Baldomero as the governing the validity of his will. Under the New Civil Code, which was the law
legitimate children of Conrado cannot be changed by their recognition by used by Dr. Fuentes, the law in force at the time of execution of the will shall
Edilberto as his illegitimate children. Before they can be conferred the status govern the formal validity of the will (Article 795, NCC).
of Edilberto’s illegitimate children, Conrado must first impugn their

legitimacy. Since Conrado has not initiated any action to impugn their
legitimacy, they continue to be the legitimate children of Conrado. They
cannot be the illegitimate children of Edilberto at the same time. Not being
the illegitimate children of Edilberto, they have no right to inherit from him.

80
 (b) Assuming that the will is probated in the Philippines, can Jay validly VII
insist that he be given his legitime? Why or why not? (3%)
TOPIC: SUCCESSION, COMPUTATION, DIVISION OF ESTATE
SUGGESTED ANSWER:
Ramon Mayaman died intestate, leaving a net estate of P10,000,000.00.
No, Jay cannot insist because under New York law he is not a compulsory Determine how much each heir will receive from the estate:
heir entitled to a legitime.
(a) If Ramon is survived by his wife, three full-blood brothers, two half-
The national law of the testator determines who his heirs are, the order brothers, and one nephew (the son of a deceased full-blood brother)?
that they succeed, how much their successional rights are, and whether or Explain. (3%)
not a testamentary disposition in his will is valid (Article 16, NCC). Since, Dr.
Fuentes was a US citizen, the laws of New York determines who his heirs are. SUGGESTED ANSWER: Having died intestate, the estate of Ramon shall
And since New York law does not recognize the concept of compulsory heirs, be inherited by his wife and his full and half-blood siblings or their respective
Jay is not a compulsory heir of Dr. Fuentes entitled to a legitime representatives. In intestacy, if the wife concurs with no one but the siblings
of the husband, all of them are the intestate heirs of the deceased husband.
The wife will receive half of the intestate estate, while the siblings or their
respective representatives, will inherit the other half to be divided among
them equally. If some siblings are of the full-blood and the others of the half
blood, a half blood sibling will receive half the share of full-blood sibling.

1. The wife of Ramon will, therefore, receive one half of the estate or
the amount of P5,000.000.00,
2. The three (3) full-blood brothers, will, therefore, receive
PI,000,000.00each.
3. The nephew will receive PI,000,000.00 by right of representation.
4. The two (2) half-brothers will receive P500,000.00each.

(b) If Ramon is survived by his wife, a half-sister, and three nephews
(sons of a deceased full-blood brother)? Explain. (3%)

SUGGESTED ANSWER: The wife will receive one half of the estate or
P5,000,000.00. The other half shall be inherited by (1) the full-blood brother,
represented by his 3 children, and (2) the half- sister. They will divide that
other half between them such that the share of the half - sister is just half the
share of the full-blood brother. The share of the full-blood brother shall in
turn be inherited by the three (3) nephews in equal shares by right of
representation.

Therefore, the three (3) nephews will receive P1,111,111.10 each and the
half-sister will receive the sum of PI,666,666.60.

81
 VIII XI

TRUE OR FALSE. Answer TRUE if the statement is true, or FALSE if the

statement is false. Explain your answer in not more than two (2)
TOPIC: PROPERTY, LEASE sentences. (5%)
Jude owned a building which he had leased to several tenants. Without
informing his tenants, Jude sold the building to Ildefonso. Thereafter, the
latter notified all the tenants that he is the new owner of the building. (b) If there is no marriage settlement, the salary of a “spouse” in an
Ildefonso ordered the tenants to vacate the premises within thirty (30) days adulterous marriage belongs to the conjugal partnership of gains.
from notice because he had other plans for the building. The tenants refused
to vacate, insisting that they will only do so when the term of their lease shall SUGGESTED ANSWER:
have expired. Is Ildefonso bound to respect the lease contracts between Jude
False. In an adulterous relationship, the salary of a married partner
and his tenants? Explain your answer. (3%)
belongs to the absolute community, or conjugal partnership, of such married
SUGGESTED ANSWER: partner with his or her lawful spouse. Under Article 148 of the Family Code,
the property relations between married partner and his/ her paramour is
Yes, Ildefonso must respect the lease contracts between Jude and his governed by ordinary co-ownership where the partners become co-owners
tenants. While it is true that the said lease contracts were not registered and only when they contributed to the acquisition of the property. The paramour
annotated on the title to the property, Ildefonso is still not an innocent is deemed to have not contributed in the earning of the salary of the married
purchaser for value. He ought to know the existence of the lease because the partner.
building was already occupied by the tenants at the time he bought it.
Applying the principle of caveat emptor, he should have checked and known
the status of the occupants or their right to occupy the building before buying
(c) Acquisitive prescription of a negative easement runs from the time
it.
the owner of the dominant estate forbids, in a notarized document, the
owner of the servient estate from executing an act which would be lawful
without the easement.

SUGGESTED ANSWER:

True. In negative easements, acquisitive prescription runs from the

moment the owner of the dominant estate forbade, by an instrument
acknowledged before a notary public, the owner of the servient estate from
executing an act which would be lawful without the easement (Art. 621, NCC).

(d) The renunciation by a co-owner of his undivided share in the co-

owned property in lieu of the performance of his obligation to contribute to
taxes and expenses for the preservation of the property constitutes dacion
en pago.

82
 SUGGESTED ANSWER: XII

True. Under the Civil Code, a co-owner may renounce his share in the co-
owned property in lieu of paying for his share in the taxes and expenses for
the preservation of the co-owned property. In effect, there is dacion en pago TOPIC: FAMILY, CONFLICT OF LAWS, ANNULMENT UNDER ART. 45 FC
because the co-owner is discharging his monetary obligation by paying it with
Emmanuel and Margarita, American citizens and employees of the U.S.
his non-monetary interest in the co-owned property. The fact the he is giving
State Department, got married in the African state of Kenya where sterility is
up his entire interest simply means that he is accepting the value of his
a ground for annulment of marriage. Thereafter, the spouses were assigned
interest as equivalent to his share in the taxes and expenses of preservation.
to the U.S. Embassy in Manila. On the first year of the spouses’ tour of duty
in the Philippines, Margarita filed an annulment case against Emmanuel
before a Philippine court on the ground of her husband’s sterility at the time
(e) A person can dispose of his corpse through an act inter vivos. of the celebration of the marriage.

SUGGESTED ANSWER: False. A person cannot dispose of his corpse A. Will the suit prosper? Explain your answer. (3%)
through an act inter vivos, i.e., an act to take effect during his lifetime. Before
his death there is no corpse to dispose. But he is allowed to do so through an SUGGESTED ANSWER:
act mortis causa, i.e., an act to take effect upon his death.
No, the suit will not prosper. As applied to foreign nationals with respect
to family relations and status of persons, the nationality principle set forth in
Article 15 of the Civil Code will govern the relations of Emmanuel and
Margarita. Since they are American citizens, the governing law as to the
ground for annulment is not Kenyan law which Margarita invokes in support
of sterility as such ground; but should be U.S. law, which is the national law
of both Emmanuel and Margarita as recognized under Philippine law. Hence,
the Philippine court will not give due course to the case based on Kenyan law.
The nationality principle as expressed in the application of national law of
foreign nationals by Philippine courts is established by precedents (Pilapil v.
Ibay-Somera, 174 SCRA 653 [1989], Garcia v. Recio, 366 SCRA 437 [2001],
Llorente v. Court of Appeals 345 SCRA 92 [2000], and Bayot v. Court of
Appeals 570 SCRA 472 [2008]).

ANOTHER SUGGESTED ANSWER:

The forum has jurisdiction over an action for the annulment of marriage
solemnized elsewhere but only when the party bringing the action is
domiciled in the forum. In this case, none of the parties to the marriage is
domiciled in the Philippines. They are here as officials of the US Embassy
whose stay in the country is merely temporary, lasting only during their fixed
tour of duty. Fence, the Philippine courts have no jurisdiction over the action.

83
 B. Assume Emmanuel and Margarita are both Filipinos. After their XIII.
wedding in Kenya, they come back and take up residence in the Philippines.
Can their marriage be annulled on the ground of Emmanuel’s sterility?
Explain. (3%)
TOPIC: FAMILY, ADOPTION
SUGGESTED ANSWER:
Rafael, a wealthy bachelor, filed a petition for the adoption of Dolly, a
No, the marriage cannot be annulled under Philippine law. Sterility is not one-year old foundling who had a severe heart ailment. During the pendency
a ground for annulment of marriage under Article 45 of the Family Code. of the adoption proceedings, Rafael died of natural causes. The Office of the
Solicitor General files a motion to dismiss the petition on the ground that the
ANOTHER SUGGESTED ANSWER: case can no longer proceed because of the petitioner’s death.

No, the marriage cannot be annulled in the Philippines. A. Should the case be dismissed? Explain. (2%)

The Philippine court shall have jurisdiction over the action to annul the SUGGESTED ANSWER: It depends on the stage of the proceedings when
marriage not only because the parties are residents of the Philippines but Rafael died. If he died after all the requirements under the law have been
because they are Filipino citizens. The Philippine court, however, shall apply complied with and the case is already submitted for resolution, the court may
the law of the place where the marriage was celebrated in determining its grant the petition and issue a decree of adoption despite the death of the
formal validity (Article 26, FC; Article 17, NCC). adopter (Section 13, RA 8552). Otherwise, the death of the petitioner shall
have the effect of terminating the proceedings.
Since the marriage was celebrated in Kenya in accordance with Kenyan
law, the formal validity of such marriage is governed by Kenyan law and any
issue as to the formal validity of that marriage shall be determined by
applying Kenyan law and not Philippine law. B. Will your answer be the same if it was Dolly who died during the
pendency of the adoption proceedings? Explain. (2%)
However, while Kenyan law governs the formal validity of the marriage,
the legal capacity of the Filipino parties to the marriage is governed not by SUGGESTED ANSWER: No, if it was Dolly who died, the case should be
Kenyan law but by Philippine law (Article 15, NCC). Sterility of a party as a dismissed. Her death terminates the proceedings (Art. 13, Domestic Adoption
ground for the annulment of marriage is not a matter of form but a matter of Law).
legal capacity. Hence, the Philippine court must apply Philippine law in
ALTERNATIVE ANSWER: It depends. If all the requirements under the law
determining the status of the marriage on the ground of absence or defect in
have already been complied with and the case is already submitted for
the legal capacity of the Filipino parties. Since sterility does not constitute
resolution, the death of the adoptee should not abate the proceedings. The
absence or defect in the legal capacity of the parties under Philippine law,
court should issue the decree of adoption if it will be for the best interest of
there is no ground to avoid or annul the marriage. Hence, the Philippine court
the adoptee. While RA 8552 provides only for the case where it is the
has to deny the petition.
petitioner who dies before the decree is issued, it is with more compelling
reason that the decree should allowed in case it is the adoptee who dies
because adoption is primarily for his benefit.

84
 XIV No, because Rodolfo has no parental authority over Rona. He who has
the parental authority has the right to custody. Under the Family Code, the
mother alone has parental authority over the illegitimate child. This is true
even if the illegitimate father has recognized the child and even though he is
TOPIC: FAMILY, ACKNOWLEDGMENT OF ILLEGITIMATE CHILD, CUSTODY,
giving support for the child. To acquire custody over Rona, Rodolfo should
PARENTAL AUTHORITY
first deprive Nanette of parental authority if there is a ground under the law,
Rodolfo, married to Sharon, had an illicit affair with his secretary, and in a proper court proceeding. In the same action, the court may award
Nanette, a 19- year old girl, and begot a baby girl, Rona. Nanette sued Rodolfo custody of Rona to Rodolfo if it is for her best interest.
for damages: actual, for hospital and other medical expenses in delivering the

child by I caesarean section; moral, claiming that Rodolfo promised to marry
her, representing that he was single when, in fact, he was not; and exemplary,
to teach a lesson to like-minded Lotharios.

(b) Suppose Rodolfo later on acknowledges Rona and gives her regular
support, can he compel her to use his surname? Why or why not? (2%)

SUGGESTED ANSWER:

No, he has no right to compel Rona to use his surname. The law does not
give him that right simply because he gave her support (RA 9255).

Under the Family Code, an illegitimate child was required to use only the
surname of the mother. Under RA 9255, otherwise known as the Revilla law,
however, the illegitimate child is given the option to use the surname of the
illegitimate father when the latter has recognized the former in accordance
with law. Since the choice belongs to the illegitimate child, Rodolfo cannot
compel Rona, if already of age, to use his surname against her will. If Rona is
still a minor, to use the surname of Rodolfo will require the consent of Rona’s
mother who has sole parental authority over her.

(c) When Rona reaches seven (7) years old, she tells Rodolfo that she
prefers to live with him, because he is better off financially than Nanette. If
Rodolfo files an action for the custody of Rona, alleging that he is Rona’s
choice as custodial parent, will the court grant Rodolfo’s petition? Why or
why not? (2%)

SUGGESTED ANSWER:

85
 XVI known to Marciano and must be proven by clear and convincing evidence.
Only then would his possession become adverse.
TOPIC: PROPERTY, AVULSION

Marciano is the owner of a parcel of land through which a river runs out
into the sea. The land had been brought under the Torrens System, and is (b) What rights, if any, does Ulpiano have against Marciano? Explain
cultivated by Ulpiano and his family as farmworkers therein. Over the years, (3%)
the river brought silt and sediment from its source up in the mountains and
forests so that gradually the land owned by Marciano increased in area by SUGGESTED ANSWER:
three hectares. Ulpiano built three huts on this additional area, where he and
Although Ulpiano is a possessor in bad faith, because he knew he does
his two married children live. On this same area. Ulpiano and his family
not own the land, he will lose the three huts he built in bad faith and make
planted peanuts, mongo, beans and vegetables. Ulpiano also regular paid
an accounting of the fruits he has gathered, he has the right to deduct from
taxes on the land, as shown by tax declarations, for over thirty years.
the value of the fruits the expenses for production, gathering and
When Marciano learned of the increase in the size of the land he ordered preservation of the fruits (Article 443, NCC).
Ulpiano to demolish the huts, and demanded that he be paid his share in the
He may also ask for reimbursement of the taxes he has paid, as these are
proceeds of the harvest. Marciano claims that under the civil code, the
charges on the land owned by Marciano. This obligation is based on a quasi-
alluvium belongs to him as a registered riparian owner to whose land the
contract (Article 2175, NCC).
accretion attaches, and that his right is enforceable against the whole world.

(a) Is Marciano correct? Explain. (3%)

SUGGESTED ANSWER:

Marciano's contention is correct. Since the accretion was deposited on

his land by the action of the waters of the river and he did not construct any
structure to increase the deposition of soil ad silt, Marciano automatically
owns the accretion. His real right of ownership is enforceable against the
whole word including Ulpiano and his two married children. Although
Marciano's land is registered the 3 hectares land deposited through accretion
was not automatically registered. As unregistered land, it is subject to
acquisitive prescription by third persons.

Although Ulpiano and his children live in the 3 hectare unregistered land
owned by Marciano, they are farmworkers; therefore they are possessors not
in the concept of owners but in the concept of more holders. Even if they
possessed the land for more than 30 years, they cannot become the owners
thereof through extraordinary acquisitive prescription, because the law
requires possession in the concept of owner. Payment of taxes and tax
declaration are not enough to make their possession one in the concept of
owner. They must repudiate the possession in the concept of holder by
executing unequivocal acts of repudiation amounting to custer of Marciano,
86
 XIX

XVIII.

TOPIC: PERSONS/SUCCESSION, OWNERSHIP, LACHES, EXTRA-JUDICIAL

SETTLEMENT OF ESTATE
TOPIC: PROPERTY, CONDOMINIUM ACT
In 1972, Luciano de la Cruz sold to Chua Chung Chun, a Chinese citizen, a
The Ifugao Arms is a condominium project in Baguio City. A strong parcel of land in Binondo, Chua died in 1990 leaving behind his wife and three
earthquake occurred which left huge cracks in the outer walls of the building. children, one of whom, Julian is a naturalized Filipino citizen. Six years after
As a result, a number of condominium units were rendered unfit for use. May Chua's death, the heirs executed an extrajudicial settlement of estate, and
Edwin, owner of one of the condominium units affected, legally sue for the parcel of land was allocated to Julian. In 2007, Luciano filed suit to recover
partition by sale of the whole project? Explain. (4%) the land he sold to Chua, alleging that the sale was void because it
contravened the Constitution which prohibits the sale of private lands to
SUGGESTED ANSWER:
aliens, Julian moved to dismiss the suit on grounds of pari delicto, laches and
Yes, Edwin may legally sue for partition by sale of the whole acquisitive prescription. Decide the case with reasons. (4%)
condominium project under the following conditions: (a) the damage or
SUGGESTED ANSWER:
destruction caused by the earthquake has rendered one-half (1⁄2) or more of
the units therein untenantable, and (b) that the condominium owners holding The case must be dismissed. Julian, who is a naturalized Filipino citizen
an aggregate of more than thirty (30%) percent interest of the common areas and to whom the property was allocated in an extra-judicial partition of the
are opposed to the restoration of the condominium project (Section 8[b], estate, is now the new owner of the property. The defect in ownership of the
Republic Act No. 4726 “Condominium Act”). property of Julian's alien father has already been cured by its transfer to
Julian. It has been validated by the transfer of the property to a Filipino
citizen. Hence, there is no more violation of the constitution because the
subject real property is now owned by a Filipino citizen (Halili v. CA 287 SCRA
465 [1998]). Further, after the lapse of 35 years, laches has set in and the
motion to dismiss may be granted, for the failure of Luciano to question the
ownership of Chua before its transfer to Julian.

87
 2008 BAR QUESTIONS Question No. 2:
At age 18, Marian found out that she was pregnant. She insured her own

life and named her unborn child as her sole beneficiary. When she was

already due to give birth, she and her boyfriend Pietro, the father of her
Question No. 1: Marriage; Subsequent Marriage
unboarn child, were kidnapped in a resort in Bataan where they were
Ana Rivera had a husband, a Filipino citizen like her, who was among the
vacationing. The military gave chase and after one week, they were found in
passengers on board a commercial jet plane which crashed in the Atlantic
an abandoned hut in Cavite. Marian and Pietro were hacked with bolos.
Ocean ten (10) years earlier and had never been heard of ever since. Believing
Marian and the baby delivered were both found dead, with the baby's
that her husband had died, Ana married Adolf Cruz Staedtler, a divorced
umbilical cord already cut. Pietro survived.
German national born of a German father and a Filipino mother residing in

Stuttgart. To avoid being reqiured to submit the required certificate of
Capacity: Juridical Capacity
capacity to marry from the German Embassy in Manila, Adolf stated in the
a) Can Marian's baby be the beneficiary of the insurance taken on the life of
application for marriage license that he was a Filipino citizen. With the
the mother?
marriage license stating that Adolf was a Filipino, the couple got married in a

ceremony officiated by the Parish Priest of Calamba, Laguna in a beach in
Answer:
Nasugbu, Batangas, as the local parish priest refused to solemnize marriages
An unborn child may be designated as the beneficiary in the insurance
except in his church. Is the marriage valid? Explain fully.
policy of the mother. An unborn child shall be considered a person for

purposes favorable to it provided it is born later in accordance with the Civil
Answer:
Code. There is no doubt that the designation of the unborn child as a
The issue hinges on whether or not the missing husband was dead or
beneficiary is favorable to the child.
alive at the time of the second marriage.

If the missing husband was in fact dead at the time the second
Succession; Proof of Death between persons called to succeed each
marriage was celebrated, the second marriage was valid. Actual death of a
other
spouse dissolves the marriage ipso facto whether or not the surviving
b) Between Marian and the baby, who is presumed to have died ahead?
spouse had knowledge of such fact. A declaration of presumptive death

even if obtained will not make the marriage voidable because presumptive
Answer:
death will not prevail over the fact of death.
If the baby was not alive when completely delivered from the mother’s
If the missing husband was in fact alive when the second marriage
womb, it was not born as a person, then the question of who between two
was celebrated, the second marriage was void ab initio because of a prior
persons survived will not be an issue. Since the baby had an intrauterine life
subsisting marriage. Had Ana obtained a declaration of presumptive death,
of more than 7 months, it would be considered born if it was alive, at the
the second marriage would have been voidable.
time of its complete delivery from the mother’s womb. We can gather from
In both cases, the fact that the German misrepresented his
the facts that the baby was completely delivered. But whether or not it was
citizenship to avoid having to present his Certificate of Legal Capacity, or the
alive has to be proven by evidence.
holding of the ceremony outside the church or beyond the territorial
If the baby was alive when completely delivered from the mother’s
jurisdiction of the solemnizing officer, are all irregularities which do not
womb, then it was born as a person and the question of who survived as
affect the validity of the marriage.
between the baby and the mother shall be resolved by the provisions of the

Rules of Court on survivorship. This is because the question has nothing to

do with succession. Obviously, the resolution of the question is needed just
for the implementation of an insurance contract. Under Rule 13, Sec. 3, (jj),

88
(5) as between the baby who was under 15 years old and Marian who was Question No. 2:
18 years old, Marian is presumed to have survived. Roderick and Faye were high school sweethearts. When Roderick was 18
In both cases, therefore, the baby never acquired any right under the and Faye, 16 years old, they started to live together as husband and wife
insurance policy. The proceeds of the insurance will then go to the estate of without the benefit of marriage. When Faye reached 18 years of age, her
Marian. parents forcibly took her back and arranged for her marriage to Brad.
Although Faye lived with Brad after the marriage, Roderick continued to
regularly visit Faye while Brad was away at work. During their marriage, Faye
c) Will Pietro, as surviving biological father of the baby, be entitled to claim gave birth to a baby girl, Laica. When Faye was 25 years old, Brad discovered
the proceeds of the life insurance on the life of Marian? (2%) her continued liaison with Roderick and in one of their heated arguments,
Faye shot Brad to death. She lost no time in marrying her true love Roderick,
Answer: without a marriage license, claiming that they have been continuously
Since the baby did not acquire any right under the insurance contract, cohabiting for more than 5 years.
there is nothing for Pietro to inherit.
Marriage; Requisites
a) Was the marriage of Roderick and Faye valid?

Answer:
The marriage was void because there was no marriage license. Their
marriage was not exempt from the requisite of a marriage license because
Roderick and Faye have not been cohabiting for at least 5 continuous years
before the celebration of their marriage. Their lovers’ tryata and brief
visitations did not amount to “cohabitation”. Moreover, the Supreme Court
held that for the marriage to be exempt from a license, there should be no
impediment for them to marry each other during the entire 5 years of
cohabitation. Roderick and Faye could not have cohabited for 5 continuous
years without impediment because Faye was then legally married to Brad.

Paternity & Filiation; Legitimacy; Presumption
b) What is the filiation status of Laica?

Answer:
Having been born during the marriage of Faye and Brad, she is
presumed to be the legitimate child of Faye and Brad. This presumption had
become conclusive because the period of time to impugn her filiation had
already prescribed.

c) Can Laica bring an action to impugn her own status on the ground that
based on DNA results, Roderick is her biological father?

Answer:

89
 No, she cannot impugn her own filiation. The law does not allow a child Question No. 4:
to impugn his or her own filiation. In the problem, Laica’s legitimate filiation Gianna was born to Andy and Aimee, who at the time Gianna's birth were
was accorded to her by operation of law which may be impugned only by not married to each other. While Andy was single at the time, Aimee was still
Brad, or his heirs in the cases provided by law within the prescriptive period. in the process of securing a judicial declaration of nullity on her marriage to
her ex-husband. Gianna's birth certificate, which was signed by both Andy
d) Can Laica be legitimated by the marriage of her biological parents? and Aimee, registered the status of Gianna as "legitimate", her surname
carrying that of Andy's and that her parents were married to each other.
Answer:
No, she cannot be legitimated by the marriage of her biological parents. Correction of Entries; Clerical Error Act
In the first place she is not, under the law, the child of Roderick. In the a) Can a judicial action for correction of entries in Gianna's birth
second place, her biological parents could not have validly married each certificate be successfully maintained to:
other at the time she was conceived and born simply because Faye was still i) Change her status from "legitimate" to "illegitimate";
married to Roderick at that time. Under Article 177 of the Family Code, only
children conceived or born outside of wedlock of parents who, at the time Answer:
of the conception of the child were not disqualified by any impediment to A judicial action cannot be maintained to change the status of Gianna
marry each other, may be legitimated. from “legitimate” to “illegitimate” child of Andy and Aimee. While it is true
that Gianna is the biological daughter of Andy and Aimee conceived and
born without marriage between them. Gianna is presumed, under the law
as the legitimate child of Aimee and her husband. This filiation may be
impugned only by the husband. To correct the status of Gianna in her birth
certificate form “legitimate child of Andy and Aimee” to “illegitimate child
of Andy and Aimee” will amount to indirectly impugning her filiation as the
child of Aimee’s husband. This is not allowed unless brought by Aimee’s
husband in a proper action. What cannot be done directly cannot be done
indirectly.

ii) and Change her surname from that of Andy's to Aimee's maiden
surname? (1%)

Answer:
A judicial action to change the surname of Gianna from the surname of
Andy to the maiden surname of Aimee is also not allowed. Gianna, being
presumed to be the legitimate child of Aimee’s husband is required by law
to be registered under the surname of Aimee’s husband. While it is true that
Gianna’s registered surname is erroneous, a judicial action for correction of
entry to change the surname of Gianna to that of Aimee’s maiden surname
will also be erroneous. A judicial action to correct an entry in the birth
certificate is allowed to correct an error and not to commit another error.

Alternative Answer to (i) and (ii):

90
 It may be noted that the problems does not show whether Gianna was conceived and born before the court has decreed the nullity of her mother’s
born while Aimee was living with her ex-husband. Neither does it show who previous marriage.
filed the judicial action to correct the entries.
If the problem is intended only for the purpose of determining whether
factual changes are in order, then the answers are:

(i) A change from “legitimate” to “illegitimate” is proper upon proof of
lack of marriage between Andy and Aimee.

(ii) If the child is considered illegitimate, then she should follow the
surname of her mother.


b) Instead of a judicial action, can administrative proceedings be brought
for the purpose of making the above corrections?

Answer:
Under R.A. 9048, only typographical errors are allowed to be corrected
administratively. The change of status from legitimate to illegitimate is not
a typographical error and even assuming that it is, its administrative
correction is not allowed under R.A. 9048. Typographical errors involving
status, age, citizenship, and gender are expressly excluded from what may
be corrected administratively.
The change of the surname is also not allowed administratively.
R.A. 9048 provides for an administrative procedure for change of first name
only and not for change of surname.

Paternity & Filiation; Legitimation of a Child from a Previous Valid
Marriage
c) Assuming that Aimee is successful in declaring her former marriage
void, and Andy and Aimee subsequently married each other, would Gianna
be legitimated? (1%)

Answer:
No, Gianna will not be legitimated. While the court may have declared
the marriage void ab initio and, therefore, no marriage took place in the
eyes of the law, Gianna will still not be legitimated. This is because at the
time she was conceived and born her biological parents could not have
validly married each other. For their marriage to be valid, the court must
first declare the first marriage null and void. In the problem, Gianna was

91
 Question No. 5:
Answer:
Despite several relationships with different women, Andrew remained Amy, Jon, Ryan, Vina and Wilma can ask support from each other
unmarried. His first relationship with Brenda produced a daughter, Amy, now because they are half-blood brothers and sisters, and Vina and Wilma are
30 years old. His second, with Carla, produced two sons: Jon and Ryan. His full-blood sisters (Art.195 [5], Family Code), but not Sandy who is not
third, with Donna, bore him no children although Elena has a daughter Jane, related to any of them.
from a previous relationship. His last, with Fe, produced no biological children
but they informally adopted without court proceedings, Sandy's now 13 years Marriage; Void Marriages; By Reason of Public Policy
old, whom they consider as their own. Sandy was orphaned as a baby and d) Can Jon and Jane legally marry? (1%)
was entrusted to them by the midwife who attended to Sandy's birth. All the
children, including Amy, now live with andrew in his house. Answer:
Jon and Jane can legally marry because they are not related to each
a) Is there any legal obstacle to the legal adoption of Amy by Andrew? To other. Jane is not a daughter of Andrew.
the legal adoption of Sandy by Andrew and Elena?

Answer:
No, there is no legal obstacle to the legal adoption of Amy by Andrew.
While a person of age may not be adopted, Amy falls within two exceptions:
(1) she is an illegitimate child and she is being adopted by her illegitimate
father to improve her status; and (2) even on the assumption that she is not
an illegitimate child of Andrew, she may still be adopted, although of legal
age, because she has been consistently considered and treated by the
adopter as his own child since minority. In fact, she has been living with him
until now.
There is a legal obstacle to the adoption of Sandy by Andrew and
Elena. Andrew and Elena cannot adopt jointly because they are not married.


Paternity & Filiation; Support: Ascendants & Descendants; Collateral
Blood Relatives
b) In his old age, can Andrew be legally entitled to claim support from
Amy, Jon, Ryan, Vina, Wilma, and Sandy assuming that all of them have the
means to support him? (1%)

Answer:
Andrew can claim support from them all, except from Sandy, who is not
his child, legitimate, illegitimate or adopted.

c) Can Amy, Jon, Ryan, Vina, Wilma, and Sandy legally claim support from
each other? (2%)

92
 Question No. 6: considering that its value is not considerably higher than the value of the
Alex died without a will, leaving only an undeveloped and untitled lot in house. At this stage, she is not given the option to demand demolition of
Tagiug City. He is survived by his wife and 4 children. His wife told the children the house. However, if she has chosen to sell the land to Bobby and the
that she is waiving her share in the property, and allowed Bobby, the eldest latter does not or cannot buy the land, she can demand the demolition of
son who was about to get married, to construct his house on ¼ of the lot, the house.
without however obtaining the consent of his siblings. After settlement of
Alex's estate and partition among the heirs, it was discovered that Bobby's (b) Can Bobby legally insist on purchasing the land?
house was constructed on the portion allocated to his sister, Cathy asked
Bobby to demolish his house and vacate the portion allotted to her. In lieu of Answer:
demolition, Bobby offered to purchase from Cathy the lot portion on which No, Bobby cannot legally insist on purchasing the land. The rules on
his house was constructed. At that time, the house constructed was valued building, planting and sowing are not applicable to co-ownership. The rules
at P350.000. applicable to co-ownership are acts of alteration or acts of ownership on
Co-Ownership one hand and acts of mere administration on the other. Even if it were
(a) Can Cathy lawfully ask for demolition of Bobby's house? (3%) applicable, Bobby acted in bad faith and hence, demolition is one of the
three options open to an owner. It is the owner of the land, not the builder,
Answer: planter or sower who has the options, even if both acted in bad faith or
Yes, Cathy can ask for the demolition of Bobby’s house on the portion good faith.
allotted to Cathy in the partition. The lot is presumed to be community
property as it was acquired during the marriage. Upon Alex’s death there
was created a co-ownership by operation of law among the widow and four
children. (Art. 1078, CC) Bobby’s share is only an undivided interest of 1/10
of the entire lot. The widow’s share in the co-ownership is 6/10 of the entire
lot, 1/2 of the lot being her share in the community property and 1/5 of
Alex’s share in the other half, because she has the same share as one of the
four children. She has the financial majority or majority interest of the co-
ownership.
Bobby’s act of building on ¼ of the lot is an act requiring the
unanimous consent of all the co-owners since it is an act of alteration.
Bobby only had the ideal share of 1/10 of the entire lot, and when he built
his house on ¼ of the lot, he was arrogating unto himself the right to
partition the poverty and taking more than what he legally owns. The
consent given by the widow to Bobby’s act of building his house was legally
insufficient. As a matter of right, Cathy can ask for the demolition of the
house and the payment of damages.

Alternative Answer:
Art. 448 of the New Civil Code is applicable by analogy (Concepcion
Fernandez del Campo v. Abeisa, 160 SCRA 379 [1988]). Pursuant thereto,
Cathy is given two options: (1) to appropriate the house that Bobby built,
upon payment of indemnity; or (2) to compel Bobby to buy the land,

93
 Question No. 7: Prescription; Acquisitive Prescription (c) If there are standing crops on the property when Carlo recovers
Anthony bought a piece of untitled agricultural land from Bert. Bert, in possession, can Carlo appropriate them?
turn, acquired the property by forging Carlo's signature in a deed of sale over
the property. Carlo had been in possession of the property for 8 years, Answer:
declared it for tax purposes, and religiously paid all taxes due on the property. The value of the standing crops must be prorated depending upon the
Anthony is not aware of the defect in Bert's title, but has been in actual period of possession and the period of growing and producing the fruits.
physical possession of the property from the time he bought it from Bert, who Anthony is entitled to a part of the net harvest and a part of the expenses
had never been in possession of the property for one year. of cultivation in proportion to his period of possession. Carlo may
appropriate the respective parts subject to prorating the respective periods
(a) Can Anthony acquire ownership of the property by acquisitive of possession. However, Carlo may allow Anthony to gather these growing
prescription? How many more years does he have possess it to acquire fruits as an indemnity for the expenses of cultivation. If Anthony refuses to
ownership? accept this concession, he shall lose the right to indemnity under Art. 443
(Art. 545, par. 3, CC).
Answer:
Yes, Anthony can acquire ownership of the property by ordinary
acquisitive prescription which requires just title and good faith (Art. 1117,
cc). There was just title because a deed of sale was issued in his favor even
though it was forged, which fact he was not aware of. He needs to possess
the land in good faith and in the concept of owner for a total of ten years in
order to acquire ownership. Since Anthony possessed the land for only one
year, he has not completed the ten-year period. Even if Anthony tacks the
8-year period of possession by Carlo who in the deed of sale is supposed to
be his grantor or predecessor in interest (Article 1138 [I], CC), the period is
still short of ten years.

(b) If Carlo is able to legally recover his property, can he require Anthony
to account for all the fruits he has harvested from the property while in
possession?

Answer:
Since Anthony is a possessor in good faith, Anthony cannot be made to
account for the fruits he gathered before he was served with summons. A
possessor in good faith is entitled to the fruits received before the
possession was legally interrupted by the service of summons (Art. 544, CC).
After Anthony was served with summons, he became a possessor in bad
faith and a builder, planter, sower in bad faith. He can also be made to
account for the fruits but he may deduct expenses for production gathering
and preservation of the fruits (Art. 1443, CC).

94
 Question No. 8: Hidden Treasure However, the notes and coins may have become res nullius
Adam, a building contractor, was engaged by Blas to construct a house considering that Banco de las Islas Filipinas is longer a juridical person and
on a lot which he (Blas) owns. While digging on the lot in order to lay down has apparently given up looking for them and Adam, the first one to take
the foundation of the house, Adam hit a very hard object. It turned out to be possession with intent to possess shall become the sole owner.
the vault of the old Banco de las Islas Filipinas. Using a detonation device,
Adam was able to open the vault containing old notes and coins which were (b) Assuming that either or both Adam and Bias are adjudged as owners,
in circulation during the Spanish era. While the notes and coins are no longer will the notes and coins be deemed part of their absolute community or
legal tender, they were valued at P100 million because of their historical conjugal partnership of gains with their respective spouses?
value and the coins silver nickel content. The following filed legal claims over
the notes and coins: Answer:
(i). Adam, as finder; Yes. The hidden treasure will be part of the absolute community or
(ii). Blas, as owner of the property where they were found; conjugal property, of the respective marriages (Arts. 91, 93 and 106, Family
(iii). Bank of the Philippine Islands, as successor-in-interest of the owner Code).
of the vault; and
(iv). The Philippine Government because of their historical value. Alternative Answer:
It is not hidden treasure and therefore, not part, if the absolute or
(a) Who owns the notes and coins? conjugal partnership of the spouses. But the finder of the lost movable, then
his reward equivalent to one-tenth of the value of the vault’s contents, will
Answer: form part of the conjugal partnership. If the government wants to acquire
Hidden treasure is money jewelry or other precious objects the the notes and coins, it must expropriate them for public use as museum
ownership of which does not appear (Art. 439, CC). The vault of the Banco pieces and pay just compensation.
de las Islas Filipinas has been buried for about a century and the Bank of the
“Philippine Islands cannot succeed by inheritance to the property of Banco
de las Islas Filipinas. The ownership of the vault, together with the notes
and coins can now "legally be considered as hidden treasure because its
ownership is no longer apparent. The contractor, Adams is not a trespasser
and therefore entitled to one-half of the hidden treasure and Bias as owner
of the property, is entitled the other half (Art. 438, CC). Since the notes and
, coins have historical value, the government may acquire them at their just
price which in turn will be divided equally between Adam and Bias (Art. 438,
par. 3, CC).

Alternative Answer:
The Banco de las Islas Filipinas is the owner of the vault. The finder and
owner of the land cannot share; in the notes and coins, because they are
not buried treasure under the law, as the ownership is known. Although
under Art. 720 of the Civil Code the finder shall be given a reward of one-
tenth of the price of the thing found, as a lost movable, on the principle of
quasi-contract.

95
 Question No. 9: Accretion; Alluvium (c) Assume the two properties are on a cliff adjoining the shore of Laguna
The properties of Jessica and Jenny, who are neighbors, lie along the Lake. Jessica and Jenny ha hotel built on the properties. They had the earth
banks of the Marikina River. At certain times of the year, the river would swell and rocks excavated from the properties dumped on the adjoining shore,
and as the water recedes, soil, rocks and other materials are deposited on giving rise to a new patch of dry land. Can they validly lay claim to the patch
Jessica’s and Jenny’s properties. This pattern of the river swelling, receding of land?
and depositing soil and other materials being deposited on the neighbors’
properties have gone on for many years. Knowing this pattern, Jessica Answer:
constructed a concrete barrier about 2 meters from her property line and Jessica and Jenny cannot validly lay claim to the price of dry land that
extending towards the river, so that when the water recedes, soil and other resulted from the dumping of rocks and earth materials excavated from
materials are trapped within this barrier. After several years, the area their properties because it is a reclamation without authority. The land is
between Jessica’s property line to the concrete barrier was completely filled part of the lakeshore, if not the lakebed, which is inalienable land of the
with soil, effectively increasing Jessica’s property by 2 meters. Jenny’s public domain.
property, where no barrier was constructed, also increased by one meter
along the side of the river.

(a) Can Jessica and Jenny legally claim ownership over the additional 2
meters and one meter, respectively, of land deposited along their properties?

Answer:
Jenny can legally claim ownership of the lands by right of accession
(accretion) under Article 457 of the Civil Code. The lands came into being
over the years through the gradual deposition of soil and silt by the natural
action of the waters of the river.
Jessica cannot claim the two meter-wide strip of land added to her
land. Jessica constructed the cement barrier two meters in front of her
property towards the river not to protect her land from the destructive
forces of the water but to trap the alluvium. In order that the riparian owner
may be entitled to the alluvium the deposition must occur naturally without
the intervention of the riparian owner (Republic v. CA, 132 SCRA 514[1984]).

(b) If Jessica’s and Jenny’s properties are registered, will the benefit of
such registration extend to the increased area of their properties?

Answer:
No, the registration of Jessica’s and Jenny’s adjoining property does not
automatically extend to the accretions. They have to bring their lands under
the operation of the Torrens system of land registration following the
procedure prescribed in P.D. No. 1529.

96
 Question No.10 Answer:
Arthur executed a will which contained only: (i) a provision disinheriting There are no other defects of the will that can cause denial of probate.
his daughter Bernica for running off with a married man, and (ii) a provision Art. 805 of the Civil Code provides that the will must be subscribed at the
disposing of his share in the family house and lot in favor of his other children end thereof by the testator, and subscribed by three or more credible
Connie and Dora. He did not make any provisions in favor of his wife Erica, witnesses in the presence of the testator and of one another. The driver,
because as the will stated, she would anyway get ½ of the house and lot as the cook and the lawyer who prepared the will are credible witnesses. The
her conjugal share. The will was very brief and straightforward and both the testator and the instrumental] witnesses of the will, shall also sign, each
above provisions were contained in page 1, which Arthur and his instrumental and every page, of the will proper, except the last, on the left margin, and
witness, signed at the bottom. Page 2 contained the attestation clause and all the pages shall be numbered correlatively in letters placed on the upper
the signatures, at the bottom thereof, of the 3 instrumental witnesses which part of each page.
included Lambert, the driver of Arthur; Yoly, the family cook, and Attorney It has been held, however, that the testator's signature is not
Zorba, the lawyer who prepared the will. There was a 3rd page, but this only necessary in the attestation clause, and that if a will consists of two sheets,
contained the notarial acknowledgement. The attestation clause stated the the first of which contains the testamentary dispositions, and is signed at
will was signed on the same occasion by Arthur and his instrumental the bottom by the testator and the three witnesses, and the second sheet
witnesses who all signed in the presence of each other, and the notary public contains the attestation clause, as in this case, signed by 3 witnesses,
who notarized the will. There are no marginal signatures or pagination marginal signatures and paging are not necessary. After all, the object of
appearing on any of the 3 pages. Upon his death, it was discovered that apart the law is to avoid substitution of any of the sheets of the will. (Abangan v.
from the house and lot, he had a P 1 million account deposited with ABC bank. Abangan, 40 Phil. 476 [1919]; In Re: Will of Tan Diuco, 45 Phil 807 [1924]).

Preterition; Disinheritance (C). Was the disinheritance valid? (1%)
(A). Was Erica preterited?
Answer:
Answer: The fact that the daughter disinherited ran off with a married man is a
No, Erica was not preterited under Art. 854 of the New Civil Code valid ground for disinheritance under the Civil Code. One ground for
because she was not related in the direct line. Moreover, since there is an disinheritance of a descendant is when the descendant leads a dishonorable
intestate portion in Arthur's estate from which Erica will inherit as an or disgraceful life (Art. 919 [7], CC]. Running away with a married man leads
intestate heir, she was not totally excluded or omitted from the inheritance to a dishonorable or disgraceful life.
of Arthur. To be preterited, the heir who must be a compulsory heir in the
direct line should be totally excluded from the inheritance, i.e., the heir will Intestate Succession
not receive anything by will, or by intestacy, and has not received any (D). How should the house and lot, and the cash be distributed? (1%)
advance by way of donation inter vivos.
Even assuming that Erica was preterited, her preterition will not Answer:
have any effect on the provisions of the will. The effect of preterition is On the assumption that the House and Lot and the Cash were all
simply to annul the institution of an heir made in the will. Legacies and conjugal property, the distribution will be as follows:
devises are respected unless they are inofficious. In the problem, since the House and Lot
will contains nothing but a devise, there is no institution that will be One half of the house shall be the conjugal share of Erica. The other half
annulled even on the assumption that there was preterition. is the conjugal share of Arthur which was inherited by Erica, Connie and
Dora in equal shares. Hence, Erica, Connie and Dora will be undivided co-
(B). What other defects of the will, if any, can cause denial of probate? owners of the house and lot with Erica getting 2/3 share thereof and Connie
and Dora with 1/6 share each.

97
 Cash Question No. 11: Wills; Joint Wills
The one million cash shall be divided in the same manner. ½ thereof or John and Paula, British citizens at birth, acquired Philippine citizenship by
500,000 shall be the conjugal share of Erica while 500,000 shall be the share naturalization after their marriage. During their marriage the couple acquired
of Arthur. This amount shall be divided in 3 equal shares, or 166,666.66 per substanial landholdings in London and in Makati. Paula bore John three
share. Erica will get 166,666.66 as her share, while Dora and Connie will get children, Peter, Paul and Mary. In one of their trips to London, the couple
166,666.66 each as their inheritance. The one million cash will be executed a joint will appointing each other as their heirs and providing that
distributed as follows: upon the death of the survivor between them the entire estate would go to
Erica -------------- 666,666.66 Peter and Paul only but the two could not dispose of nor divide the London
Dora --------------- 166,666.66 estate as long as they live. John and Paul died tragically in the London Subway
Connie ------------ 166,666.66 terrorist attack in 2005. Peter and Paul filed a petition for probate of their
parent's will before a Makati Regional Trial Court.

(A). Should the will be admitted to probate?

Answer:
No, the will should not be admitted to probate. Joint wills are void
under the New Civil Code. And even if the joint will executed by Filipinos
abroad where valid where it was executed, the joint will is still not valid in
the Philippines.

(B). Are the testamentary dispositions valid?

Answer:
If a will is void, all testamentary dispositions contained in that will are
also void. Hence, all testamentary provisions contained in the void joint will
are also void.

(C). Is the testamentary prohibition against the division of the London
estate valid?

Answer:
The testamentary prohibition against the division by Peter and Paul of
the London estate for as long as they live, is not valid. Article 494 of the New
Civil Code provides that a donor or testator may prohibit partition for a
period which may not exceed twenty (20) years.

98
 Question No. 12: Legitime; Compulsory Heirs Question No. 13: Heirs; Fideicommissary Substitution
Ernesto, an overseas Filipino worker, was coming home to the Philippines Raymond, single, named his sister Ruffa in his will as a devisee of a parcel
after working for so many years in the Middle East. He had saved P100.000 in of land which he owned. The will imposed upon Ruffa the obligation of
his saving account in Manila which intended to use to start a business in his preseving the land and transferring it, upon her death, to her illegitimate
home country. On his flight home, Ernesto had a fatal heart attack. He left daughter Scarlet who was then only one year old. Raymond later died, leaving
behind his widowed mother, his common-law wife and their twins sons. He behind his widowed mother, Ruffa and Scarlet.
left no will, no debts, no other relatives and no other properties except the
money in his saving account. Who are the heirs entitled to inherit from him (A). Is the condition imposed upon Ruffa, to preserve the property and to
and how much should each receive? transmit it upon her death to Scarlet, valid?

Answer: Answer:
If the 100,000 peso savings came from wages and salaries that Ernesto When an obligation to preserve and transmit the property to Scarlet
earned during the time that he was cohabiting with his common law wife, was imposed on Ruffa, the testator Raymond intended to create a
and there was no impediment for them to marry each other. The P100,000 fideicommissary substitution where Ruffa is the fiduciary and Scarlet is the
shall be owned by them in equal shares under Article 147 of the Family fideicommissary. Having complied with the requirements of Articles 863
Code. Therefore, one half thereof, of P50,000, shall belong to the common and 869 (N.C.C.) the fideicommissary substitution is valid.
law wife as her share in the co-ownership, while the other half of P50,000
shall be the share of Ernesto that will be inherited by his mother, and two (B). If Scarlet predeceases Ruffa, who inherits the property?
illegitimate children. The mother will get P25,000 while the two illegitimate
children will get P12,500 each. The common law wife is not a legal heir of Answer:
Ernesto because they were not legally married. If Scarlet predeceases Ruffa, the fideicommissary substitution is
If there was an impediment for Ernesto and his common law wife rendered null or ineffective under Article 863 (N.C.C.). And applying Article
to marry each other, the P100,000 will be owned by Ernesto alone, the 868 (N.C.C.), the fideicommissary clause is disregarded without prejudice to
common law wife not having contributed to its acquisition (Art. 148, Family the validity of the institution of the fiduciary. In such case Ruffa shall inherit
Code). It shall be inherited by his mother who will get P50,000, and his two the devise free from the condition.
illegitimate sons who will get 25,000 each.
(C). If Ruffa predeceases Raymond, can Scarlet inherit the property
directly from Raymond?
Answer:
In fideicommissary substitution, the intention of the testator is to make
the second heir his ultimate heir. The right of the second heir is simply
postpone by the delivery of the inheritance to the first heir for him to enjoy
the usufruct over the inheritance. Hence, when the first heir predeceased
the testator, the first heir did not qualify to inherit and the right of the
second heir to receive the inheritance will no longer be delayed provided
the second heir is qualified to inherit at the time of the testator’s death. In
fideicommissary substitution, the first and the second heirs inherit from the
testator, hence, both should be qualified to inherit from the testator at the
time of his death.

99
 In the problem, when Ruffa predeceased Raymond, she did not Question No. 14: Wills; Notarial Wills; Blind Testator; Requisites
qualify to receive the inheritance to enjoy its usufruct, hence, the right of Stevie was born blind. He went to school for the blind, and learned to
Scarlet to receive the inheritance upon the death of the testator will no read in Baille Language. He Speaks English fluently. Can he:
longer be delayed. However, Scarlet is not qualified to inherit from
Raymond because she is barred by Article 992 of the New Civil Code being (A). Make a will?
an illegitimate child of Raymond’s legitimate father. The devise will
therefore be ineffective and the property will be disposed of by intestacy. Answer:
Stevie may make a notarial will. A blind man is not expressly prohibited
from executing a will. In fact, Article 808 of the NCC provides for additional
formality when the testator is blind. Stevie, however, may not make a
holographic will in Braille because the writing in Braille is not a handwriting.
A holographic will to be valid must be written entirely, signed, and dated by
the testator in his own handwriting.

(B). Act as a witness to a will?

Answer:
A blind man is disqualified by law to be a witness to a notarial will.

(C). In either of the above instances, must the will be read to him?

Answer:
In case Stevie executes a notarial will, it has to be read to him twice.
First by one of the instrumental witnesses, and second by the notary public
before whom the will was acknowledged.

100
 2007 BAR QUESTIONS possedendi, which are among the basic rights of ownership. If
the real right of possession is possession in the concept of owner,

but subject to certain limitations, it may ripen into full ownership
Q01
of the thing or property right through acquisitive prescription
(Property; Occupation: Possession: Donation)
depending on whether it is a case of ordinary or extraordinary
Distinguish the following concepts:
prescription and whether the property is movable or immovable.
(a) Occupation v. Possession


(b) Illegal and impossible conditions in a simple donation v. illegal and
ANSWER:
impossible conditions in an onerous donation
Occupation can take place only with respect to property without an

owener while possession can refer to all kinds of property, whether
ANSWER:
with owner or without an owner. Occcupation itself, when proper,
Illegal and impossible conditions in a simple donation are
confers ownership but possession does not itself give rise to
considered as not written. Such conditions, shall therefore, be
ownership. (Tolentino, Commentaries and Jurisprudence on the Civil
disregarded but the donation remains valid (Art. 727, NCC).
Code of the Philippines [1999 ed.], vol. II, p.489]


On the other hand, illegal and impossible donations imposed in an
FIRST ALTERNATIVE ANSWER:
onerous donation shall annul the donation (Art. 1183, NCC). This
Occupation is an original mode of acquiring ownership (Art. 712,
is so, because onerous donations are governed by the law on
NCC). Things appropriable by nature which are without an owner,
contracts (Art. 733, NCC).
such as animals that are the object of hunting and fishing, hidden

treasure and abandoned movables, are acquired by occupation
(Art. 713, NCC). However, ownership of a piece of land cannot be
acquired by occupation (Art. 714, NCC)

On the other hand, possession is the holding of a thing or the
enjoyment of a right, as provided in Article 523 of the New Civil Code.
Possession can be in the concept of an owner or in the concept of a
holder (Art. 525, NCC)

SECOND ALTERNATIVE ANSWER:
Occupation is a mode of acquiring dominion by the seizure of
corporeal things which have no owner, with the intention of
acquiring the ownership thereof. It is an original mode of acquiring
ownership upon seizure of a res nullius by the occupant who has
the intention to become the owner thereof.

Possession, on the other hand, is the holding of the thing or an
enjoyment of a
right. Possession may be the real right of possession or jus
possessiones or it can be merely the right to possess or jus

101
 Q02 way that it cannot be separated therefrom without breaking the
(Property; Movable v. Immovable) material or deterioration of the object." Both the equipment and
Manila Petroleum Co. owned and operated a petroleum operation the living quarters are permanently attached to the platform which
facility off the coast of Manila. The facility was located on a floating is also an immovable.
platform made of wood and metal, upon which was permanently
attached the heavy equipment for the petroleum operations and living The equipment can also be classified as an immovable property
quarters of the crew. The floating platform likewise contained a garden under Art. 415 (5) NCC because such equipment are "machinery,
area, where trees, plants and flowers were planted. The platform was receptacles, instruments or implements intended by the owner of
tethered to a ship, the MV 101, which was anchored to the seabed. the tenement for an industry or works which may be carried on
in a building or on a piece of land and which tend directly to meet the
Please briefly give the reason for your answers. (10%) needs of the industry or works." It is logically assumed that the
petroleum industry may be carried on in a building or on a piece
(A) Is the platform movable or immovable property? of land and the platform is analogous to a building.

ANSWER: ALTERNATIVE ANSWER:
The platform is an immovable property under Art. 415 (9) NCC, The equipment and living quarters of the crew are movable
which provides that "docks and structures which, though properties since they are attached to a platform which is also a
floating, are intended by their nature and object to remain at a movable property, because it is simply attached to a vessel is
fixed place on a river, lake or coast." Since the floating platform is likewise a movable property since it was merely anchored on the
a petroleum operation facility, it is intended to remain seabed only shows that it is not intended to remain at a fixed
permanently where it is situated, even if it is tethered to a ship place; hence, it remains a movable property.
which is anchored to the seabed.
(C) Are the trees, plants and flowers immovable or movable
ALTERNATIVE ANSWER: property?
The platform is a movable property because it is attached to a
movable property, i.e. the vessel which was merely anchored to ANSWER:
the seabed. The fact that the vessel is merely anchored to the sea The trees, plants and flowers planted in the garden area of the
bed only shows that it is not intended to remain at a fixed place; platform are immovable property under Art. 415 (2) NCC which
hence, it remains a movable property. If the intention was to classifies as an immovable property "trees, plants and growing
make the platform stay permanent where it was moored, it would fruits, while they are attached to the land or form an integral
not have been simply tethered to a vessel but itself anchored to part of an immovable, the petroleum operation facility.
the seabed.
ALTERNATIVE ANSWER:
(B) Are the equipment and living quarters movable or immovable The trees, plants and flowers planted in the garden area of the
property? platform are movable property because they are not permanently
attached t the land and do not form an integral part of an
ANSWER: immovable. The platform is not an immovable property for the
The equipment and living quarters of the crew are immovable same reason already given in the Alternative Answer to Item (a)
property under Art. 415(3) NCC, classifies as an immovable above.
"everything attached to an immovable in a fixed manner, in such a

102
 Q06 Q07
(Wills; Witnesses to a Will; Presence Required) Write "TRUE" if the statement is true or "FALSE" if the statement is
Clara, thinking of her mortality, drafted a will and asked Roberta, false. If the statement is FALSE, state the reason. (2% each).
Hannah, Luisa and Benjamin to be witnesses. During the day of signing
of her will, Clara fell down the stairs and broke her arms. Coming from (Persons and Family Relations; Legal Capacity; Lex Rei Sitae)
the hospital, Clara insisted on signing her will by thumb mark and said 1. Roberta, a Filipino, 17 years of age, without the knowledge of
that she can sign her full name later. While the will was being signed, his parents, can acquire a house in Australia because Australian
Roberta experienced a stomach ache and kept going to the restroom for Laws allow aliens to acquire property from the age of 16.
long periods of time. Hannah, while waiting for her turn to sign the
will, was reading the 7th Harry Potter book on the couch, beside the ANSWER:
table on which everyone was signing. Benjamin, aside from witnessing TRUE. Since Australian Law allows alien to acquire property
the will, also offered to notarize it. A week after, Clara was run over from the age of 16, Roberta may validly own a house in
by a drunk driver while crossing the street in Greenbelt. May the will Australia, following the principle of lex rei sitae enshrined in
of Clara be admitted to probate? Give your reasons briefly. (10%) Art. 16, NCC, which states "Real property as well as personal
property is subject to the law of the country where it is situated."
ANSWER: Moreover, even assuming that legal capacity of Roberta in
Probate should be denied. The requirement that the testator and at least entering the contract in Australia is governed by Philippine Law,
three (3) witnesses must sign all in the "presence" of one another was not she will acquire ownership over the property bought until the
complied with. Benjamin who notarized the will is disqualified as a contract is annulled.
witness, hence he cannot be counted as one of the three witnesses (Cruz
v. Villasor, 54 SCRA 31, 1973). The testatrix and the other witnesses ALTERNATIVE ANSWER:
signed the will not in the presence of Roberta because she was in the FALSE. Laws relating to family rights and duties, or to the status,
restroom for extended periods of time. Inside the restroom, Roberta could condition or legal capacity of persons are binding upon the citizens
not have possibly seen the testatrix and the other witnesses sign the of the Philippines, even though living abroad (Art. 15, NCC). The age
will by merely casting her eyes in the proper direction (Jaboneta v. of majority under Philippine law is 18 years (R.A. No. 6809); hence,
Gustilo, 5 Phil 541, 1906; Nera v. Rimando, 18 Phil 451, 1914). Therefore, Roberta, being only 17 years old, has no legal capacity to acquire
the testatrix signed the will in the presence of only two witnesses, and and own land.
only two witnesses signed the will in the presence of the testatrix and of
one another. (Persons and Family Relations; Marriage; Legal Separation;
Prescription)
It is to be noted, however, that the thumb mark intended by the testator 2. If a man commits several acts of sexual infidelity particularly in
to be his signature in executing his last will and testament is valid (Payad v. 2002, 2003, 2004, 2005, the prescriptive period to file for legal
Tolentino, 62 Phil 848, 1936; Matias v. Salud, L-104 Phil 1046, 23 June, separation runs from 2002.
1958). The problem, however, states that Clara "said that she can sign
her full name later;" Hence, she did not consider her thumb mark as her ANSWER:
"complete" signature, and intended further action on her part. The FALSE. The five-year prescriptive period for filing legal separation
testatrix and the other witness signed the will in the presence of Hannah, runs from the occurrence of sexual infidelity committed in 2002
because she was aware of her function and role as witness and was in a runs from 2002, forthe sexual infidelity committed in 2003, the
position to see the testatrix and the other witnesses sign by merely prescriptive period runs from 2003 and so on. The action for legal
casting her eyes in the proper direction.

103
 separation for the last act of sexual infidelity in 2005 will prescribe before. Physical incapacity to consummate is a valid ground for
in 2010. the annulment of marriage if such incapacity was existing at the time
of the marriage, continues and appears to be incurable. The
(Persons and Family Relations; Property Relations; Ante-Nuptial marriage may be annulled on this ground within five years from
Debt) its celebration.
3. An individual, while single, purchases a house and lot in 1990 and
borrows money in 1992 to repair it. In 1995, such individual gets (Persons and Family Relations; Marriage; Void Marriages; By Reason of
married while the debt is still being paid. After the marriage, the Public Policy)
debt is still the responsibility of such individual. 5. Amor gave birth to Thelma when she was 15 years old. Thereafter,
Amor met David and they got married when she was 20 years
old. David had a son, Julian, with his ex-girlfriend Sandra. Julian and
Thelma can get married.

ANSWER: ANSWER:
FALSE. The absolute community of property is liable for the ante- TRUE. Julian and Thelma can get married. Marriage between
nuptial debts of either spouse in so far as the same redounded stepbrothers and stepsisters are not among the marriages
to the benefit of the family (Art. 94 par.7, FC). prohibited under the Family Code.

ALTERNATIVE ANSWER:
FALSE. The debt is already the responsibility of the community
property, because the property already constitutes absolute
community property under Art. 91 of FC which took effect in 1988
while the house and lot here involved was purchased in 1990.
There is no indication that the spouse who bought the property
had legitimate descendants by a former marriage, which would
exclude the house and lot from the community property, Art. 92
par 3, FC). If the spouses established a conjugal partnership, the
property belongs to the individual spouse if full ownership was
vested before marriage (Art. 118, FC).

(Persons and Family Relations; Annulment; Grounds)
4. The day after John and Marsha got married, John told her that he
was impotent. Marsha continued to live with John for 2 years.
Marsha is now estopped from filing an annulment case against
John.

ANSWER:
FALSE. Marsha is not estopped from filing an annulment case
against John on the ground of his impotence, because she learned
of his impotence after the celebration of the marriage and not

104
 Q08 Q10
(Property; Donation; Acceptance; Formalities in Writing) (Succession; Intestate Succession)
In 1986, Jennifer and Brad were madly in love. In 1989, because a For purpose of this question, assume all formalities and procedural
certain Picasso painting reminded Brad of her, Jennifer acquired it and requirements have been complied with.
placed it in his bedroom. In 1990, Brad and Jennifer broke up. While Brad
was mending his broken heart, he met Angie and fell in love. Because In 1970, Ramon and Dessa got married. Prior to their marriage, Ramon
the Picasso painting reminded Angie of him, Brad in his will bequeathed had a child, Anna. In 1971 and 1972, Ramon and Dessa legally adopted
the painting to Angie. Brad died in 1995. Saddened by Brad's death, Cherry and Michelle respectively. In 1973, Dessa died while giving birth
Jennifer asked for the Picasso painting as a remembrance of him. Angie to Larry Anna had a child, Lia. Anna never married. Cherry, on the
refused and claimed that Brad, in his will, bequeathed the painting to her. other hand, legally adopted Shelly. Larry had twins, Hans and Gretel,
Is Angie correct? Why or why not?(10%) with his girlfriend, Fiona. In 2005, Anna, Larry and Cherry died in a car
accident. In 2007, Ramon died. Who may inherit from Ramon and who
may not? Give your reason briefly.(10%)

ANSWER: ANSWER:
NO. Angie is not correct. The Picasso painting is not given or donated The following may inherit from Ramon:
by Jennifer to Brad. She merely "placed it in his bedroom." Hence, she 1. Michelle, as an adopted child of Ramon, will inherit as a
is still the owner of the painting. Not being the owner of the Picasso legitimate child of Ramon. As an adopted child, Michelle has all
painting, Brad cannot validly bequeath the same to Angie (Art. 930, NCC). the rights of a legitimate child (Sec 18, Domestic Adoption Law).
Even assuming that the painting was impliedly given or donated by 2. Lia will inherit in representation of Anna. Although Lia is an
Jennifer to Brad, the donation is nevertheless void for not being in illegitimate child, she is not barred by Articles 992, because her
writing. The Picasso painting must be worth more than 5,000 pesos. mother Anna is an illegitimate herself. She will represent Anna
Under Art. 748, NCC, the donation and acceptance of a movable worth as regards Anna's legitime under Art. 902, NCC and as regards
more than 5,000 pesos must be in writing, otherwise the donation is Anna's intestate share under Art. 990, NCC.
void. The donation being void, Jennifer remained the owner of the Picasso
painting and Brad could not have validly disposed of said painting in favor The following may not inherit from Ramon:
of Angie in his will. 1. Shelly, being an adopted child, she cannot represent Cherry. This
is because adoption creates a personal legal relation only between
the adopter and the adopted. The law on representation requires
ALTERNATIVE ANSWER: the representative to be a legal heir of the person he is
YES. Angie is correct. Even assuming that there was void donation because representing and also of the person from whom the person being
the same was not in writing, Brad was in uninterrupted possession of represented was supposed to inherit. While Shelly is a legal heir
the Picasso painting from 1989 to 1995, lasting for six (6) years prior to of Cherry, Shelly is not a legal heir of Ramon. Adoption created
his death. Brad has already acquired ownership of the painting through a purely personal legal relation only between Cherry and Shelly.
acquisitive prescription. Under Art. 1132, NCC, ownership of movables 2. Hans and Gretel are barred from inheriting from Ramon under
prescribes through continuous possession for four (4) years in good faith Art. 992, NCC. Being illegitimate children, they cannot inherit ab
and for eight (8) years without need of other conditions. A void donation intestao from Ramon.
may be the basis of possession in the concept of owner and of just title
for purposes of acquisitive prescription.

105
ALTERNATIVE ANSWER:
The problem expressly mentioned the dates of the adoption of Cherry
and Michelle as 1971 and 1972. During that time, adoption was governed
by the New Civil Code. Under the New Civil Code, husband and wife
were allowed to adopt separately or not jointly with the other spouse.
And since the problem does not specifically and categorically state, it is
possible to construe the use of the word "respectively" in the problem
as indicative of the situation that Cherry was adopted by Ramon alone
and Michelle was adopted by Dessa alone. In such case of separate
adoption the alternative answer to the problem will be as follows:

Only Lia will inherit from Ramon in representation of Ramon's illegitimate
daughter Anna. Although Lia is an illegitimate child, she is not barred from
inheriting from Ramon because her mother is herself illegitimate.

Shelly cannot inherit in representation of Cherry because Shelly is just an
adopted child of Cherry. In representation, the representative must not
only be a legal heir of the person he is representing but also of the decedent
from whom the represented person is supposed to inherit. In the case
of Shelly, while she is a legal heir of Cherry by virtue of adoption, she is
not a legal heir of Ramon. Adoption creates a personal legal relation only
between the adopting parent and the adopted child (Teotico v. Del Val,
13 SCRA 406, 1965).

Michelle cannot inherit from Ramon, because she was adopted not by
Ramon but by Dessa. In the eyes of the law, she is not related to Ramon at
all. Hence, she is not a legal heir of Ramon.

Hans and Gretel are not entitled to inherit from Ramon, because they
are barred by Art. 992 NCC. Being illegitimate children of Larry, they
cannot inherit from the legitimate relatives of their father Larry. Ramon
is a legitimate relative of Larry who is the legitimate father.

106
 2006 BAR QUESTIONS Saul, a married man, had an adulterous relation with Tessie. In one of the
trysts, Saul's wife, Cecile, caught them in flagrante. Armed with a gun, Cecile
- I – PERSONS (PARENTAL AUTHORITY) shot Saul in a fit of extreme jealousy, nearly kiiling him. Four (4) years after
the incident, Saul filed an action for legal separation against Cecile on the
Under Article 213 of the Family Code, no child under 7 years of age shall ground that she attempted to kill him.
be separated from the mother unless the court finds compelling reasons to
order otherwise. 1. If you were Saul's counsel, how will you argue his case? 2.5%

1. Explain the rationale of this provision. 2.5% SUGGESTED ANSWER: As the counsel of Saul, I will argue that an
attempt by the wife against the life of the husband is one of the
SUGGESTED ANSWER: The rationale of the 2nd paragraph of grounds enumerated by the Family Code for legal separation and
Article 213 of the Family Code is to avoid the tragedy of a mother who there is no need for criminal conviction for the ground to be invoked
sees her baby torn away from her. It is said that the maternal (Art. 55, par. 9, Family Code).
affection and care during the early years of the child are generally
needed by the child more than paternal care (Hontiveros v. IAC, G.R. 2. If you were the lawyer of Cecile, what will be your defense? 2.5%
No. 64982, October 23, 1984; Tolentino, Commentaries and
Jurisprudence on the Civil Code, Volume One, pp. 718-719). The SUGGESTED ANSWER: As the counsel of Cecile, I will invoke the
general rule is that a child below 7 years old shall not be separated adultery of Saul. Mutual guilt is a ground for the dismissal of an action
from his mother due to his basic need for her loving care (Espiritu v. for legal separation (Art. 56, par. 4, Family Code). The rule is anchored
C.A., G.R. No. 115640, March 15,1995). on a well-established principle that one must come to court with
clean hands.
2. Give at least 3 examples of "compelling reasons" which justify the
taking away from the mother's custody of her child under 7 years of 3. If you were the judge, how will you decide the case? 5%
age. 2.5%
SUGGESTED ANSWER: If I were the judge, I will dismiss the action
SUGGESTED ANSWER: on the ground of mutual guilt of the parties. The Philippine
• The mother is insane (Sempio-Diy, Handbook on the Family Code Constitution protects marriage as an inviolable social institution (Art.
of the Philippines, pp. 296-297); XV, Sec. 2, 1987 Constitution). An action for legal separation involves
• The mother is sick with a disease that is communicable and might public interest and no such decree should be issued if any legal
endanger the health and life of the child; obstacle thereto appears on record. This is in line with the policy that
• The mother has been maltreating the child; in case of doubt, the court shall uphold the validity and sanctity of
• The mother is engaged in prostitution; marriage (Brown v. Yambao, G.R. No. L-10699, October 18, 1957).
• The mother is engaged in adulterous relationship;
• The mother is a drug addict;
• The mother is a habitual drunk or an alcoholic;
• The mother is in jail or serving sentence. Teachers


- II – PERSONS (LEGAL SEPARATION – MUTUAL GUILT)

107
 - III – PERSONS (PATERNITY) - IV – PERSONS (VOID MARRIAGE)

Ed and Beth have been married for 20 years without children. Desirous Gigi and Ric, Catholics, got married when they were 18 years old. Their
to have a baby, they consulted Dr. Jun Canlas, a prominent medical specialist marriage was solemnized on August 2, 1989 by Ric's uncle, a Baptist Minister,
on human fertility. He advised Beth to undergo artificial insemination. It was in Calamba, Laguna. He overlooked the fact that his license to solemnize
found that Ed's sperm count was inadequate to induce pregnancy. Hence, the marriage expired the month before and that the parties do not belong to his
couple looked for a willing donor. Andy, the brother of Ed, readily consented congregation. After 5 years of married life and blessed with 2 children, the
to donate his sperm. After a series of tests, Andy's sperm was medically spouses developed irreconcilable differences, so they parted ways.
introduced into Beth's ovary. She became pregnant and 9 months later, gave
birth to a baby boy, named Alvin. While separated, Ric fell in love with Juliet, a 16 year-old sophomore in a
local college and a seventh-Day Adventist. They decided to get married with
1. Who is the father of Alvin? Explain. 2.5% the consent of Juliet's parents. She presented to him a birth certificate
showing she is 18 years old. Ric never doubted her age much less the
SUGGESTED ANSWER: Andy is the biological father of Alvin being authenticity of her birth certificate. They got married in a Catholic church in
the source of the sperm. Andy is the legal father of Alvin because Manila. A year after, Juliet gave birth to twins, Aissa and Aretha.
there was neither consent nor ratification to the artificial
insemination. Under the law, children conceived by artificial 1. What is the status of the marriage between Gigi and Ric - valid,
insemination are legitimate children of the spouses, provided, that voidable or void? Explain. 2.5 %
both of them authorized or ratified the insemination in a written
instrument executed and signed by both of them before the birth of SUGGESTED ANSWER: Even if the Minister's license expired, the
the child (Art. 164, Family Code). marriage is valid if either or both Gigi and Ric believed in good faith
that he had the legal authority to solemnize marriage. While the
2. What are the requirements, if any, in order for Ed to establish his authority of the solemnizing officer is a formal requisite of marriage,
paternity over Alvin. 2.5% and at least one of the parties must belong to the solemnizing
officer's church, the law provides that the good faith of the parties
SUGGESTED ANSWER: The following are the requirements for Ed cures the defect in the lack of authority of the solemnizing officer
to establish his paternity over Alvin: • The artificial insemination has (Art. 35 par. 2, Family Code; Sempio-Diy, p. 34; Rabuya, The Law on
been authorized or ratified by the spouses in a written instrument Persons and Family Relations, p. 208). The absence of parental
executed and signed by them before the birth of the child; and • The consent despite their having married at the age of 18 is deemed
written instrument is recorded in the civil registry together with the cured by their continued cohabitation beyond the age of 21. At this
birth certificate of the child (Art. 164, 2nd paragraph, Family Code). point, their marriage is valid (See Art. 45, Family Code).

2. What is the status of the marriage between Ric and Juliet - valid,
voidable or void? Explain. 2..5%

SUGGESTED ANSWER: The marriage between Juliet and Ric is
void. First of all, the marriage is a bigamous marriage not falling under
Article 41 [Art. 35(4) Family Code], A subsisting marriage constitutes
a legal impediment to remarriage. Secondly, Juliet is below eighteen

108
 years of age. The marriage is void even if consented to by her parents - V – PERSONS (MARITAL COMMUNITY OF PROPERTY)
[Art. 35(1), Family Code]. The fact that Ric was not aware of her real
age is immaterial. Spouses Biong and Linda wanted to sell' their house. They found a
prospective buyer, Ray. Linda negotiated with Ray for the sale of the
3. Suppose Ric himself procured the falsified birth certificate to property. They agreed on a fair price of P2 Million. Ray sent Linda a letter
persuade Juliet to marry him despite her minority and assured her confirming his intention to buy the property. Later, another couple, Bernie
that everything is in order. He did not divulge to her his prior marriage and Elena, offered a similar house at a lower price of Pl.5 Million. But Ray
with Gigi. What action, if any, can Juliet take against him? Explain. insisted on buying the house of Biong and Linda for sentimental reason. Ray
2.5% prepared a deed of sale to be signed by the couple and a manager's check for
P2 Million. After receiving the P2 Million, Biong signed the deed of sale.
SUGGESTED ANSWER: Juliet can file an action for the declaration However, Linda was not able to sign it because she was abroad. On her return,
of nullity of the marriage on the ground that he willfully caused loss she refused to sign the document saying she changed her mind. Linda filed
or injury to her in a manner that is contrary to morals, good customs suit for nullification of the deed of sale and for moral and exemplary damages
and public policy [Art. 21, New Civil Code]. She may also bring against Ray.
criminal actions for seduction, falsification, illegal marriage and
bigamy against Ric. 1. Will the suit prosper? Explain. 2.5%

4. If you were the counsel for Gigi, what action/s will you take to enforce SUGGESTED ANSWER: No, the suit will not prosper. The contract
and protect her interests? Explain. 2.5% of sale was perfected when Linda and Ray agreed on the object of the
sale and the price [Art. 1475, New Civil Code]. The consent of Linda
SUGGESTED ANSWER: I would file an action to declare the has already been given, as shown by her agreement to the price of
marriage between Juliet and Ric null and void ab initio and for Ric's the sale. There is therefore consent on her part as the consent need
share in the co-ownership of that marriage to be forfeited in favor not be given in any specific form. Hence, her consent may be given
and considered part of the absolute community in the marriage by implication, especially since she was aware of, and participated in
between Gigi and Ric [Arts. 148 & 147, Family Code]. I would also file the sale of the property (Pelayo v. CA, G.R. No. 141323, June 8, 2005).
an action for damages against Ric on the grounds that his acts Her action for moral and exemplary damages will also not prosper
constitute an abuse of right and they are contrary to law and morals, because the case does not fall under any of those mentioned in Art.
causing damages to Gigi (See Arts 19, 20, 21, New Civil Code). 2219 and 2232 of the Civil Code.

ALTERNATIVE ANSWER: The suit will prosper. Sale of community

property requires written consent of both spouses. The failure or
refusal of Linda to affix her signature on the deed of sale, coupled
with her express declaration of opposing the sale negates any valid
consent on her part. The consent of Biong by himself is insufficient to
effect a valid sale of community property (Art. 96, Family Code;
Abalos v. Macatangay, G.R. No. 155043, September 30, 2004).

2. Does Ray have any cause of action against Biong and Linda? Can he
also recover damages from the spouses? Explain. 2.5%

109
 SUGGESTED ANSWER: Considering that the contract has already - VI – PERSONS (PSYCHOLOGICAL INCAPACITY)
been perfected and taken out of the operation of the statute of
frauds, Ray can compel Linda and Biong to observe the form required Gemma filed a petition for the declaration of nullity of her marriage with
by law in order for the property to be registered in the name of Ray Arnell on the ground of psychological incapacity. She alleged that after 2
which can be filed together with the action for the recovery of house months of their marriage, Arnell showed signs of disinterest in her, neglected
[Art. 1357 New Civil Code]. In the alternative, he can recover the her and went abroad. He returned to the Philippines after 3 years but did not
amount of Two million pesos (P2,000,000.00) that he paid. even get in touch with her. Worse, they met several times in social functions
Otherwise, it would result in solutio indebiti or unjust enrichment. but he snubbed her. When she got sick, he did not visit her even if he knew
of her confinement in the hospital. Meanwhile, Arnell met an accident which
Ray can recover moral damages on the ground that the action disabled him from reporting for work and earning a living to support himself.
filed by Linda is clearly an unfounded civil suit which falls under
malicious prosecution {Ponce v. Legaspi, G.R. No. 79184, May Will Gemma's suit prosper? Explain. 5%
6,1992).
SUGGESTED ANSWER: No, Gemma's suit will not prosper. Even if taken
as true, the grounds, singly or collectively, do not constitute "psychological
incapacity." In Santos v. CA, G.R. No. 112019, January 4, 1995, the Supreme
Court clearly explained that "psychological incapacity must be characterized
by (a) gravity, (b) juridical antecedence, and (c) incurability" (Ferraris v.
Ferraris, G.R. No. 162368, July 17, 2006; Choa v. Choa, G.R. No. 143376,
November 26, 2002). The illness must be shown as downright incapacity or
inability to perform one's marital obligations, not a mere refusal, neglect,
difficulty or much less, ill will. Moreover, as ruled in Republic v. Molina, GR
No. 108763, February 13, 1997, it is essential that the husband is capable of
meeting his marital responsibilities due to psychological and not physical
illness (Antonio v. Reyes, G.R. No. 155800, March 10, 2006; Republic v.
Quintero-Hamano, G.R. No. 149498, May 20, 2004). Furthermore, the
condition complained of did not exist at the time of the celebration of
marriage.

110
 - VII – PERSONS (NON-BIGAMOUS MARRIAGE) - VIII – (PROPERTY - EJECTMENT)

Marvin, a Filipino, and Shelley, an American, both residents of California, Alberto and Janine migrated to the United States of America, leaving
decided to get married in their local parish. Two years after their marriage, behind their 4 children, one of whom is Manny. They own a duplex apartment
Shelley obtained a divorce in California. While in Boracay, Marvin met Manel, and allowed Manny to live in one of the units. While in the United States,
a Filipina, who was vacationing there. Marvin fell in love with her. After a Alberta died. His widow and all his children executed an Extrajudicial
brief, courtship and complying with all the requirements, they got married in Settlement of Alberto's estate wherein the 2-door apartment was assigned
Hongkong to avoid publicity, it being Marvin's second marriage. Is his by all the children to their mother, Janine. Subsequently, she sold the
marriage to Manel valid? Explain. 5% property to George. The latter required Manny to sign a prepared Lease
Contract so that he and his family could continue occupying the unit. Manny
SUGGESTED ANSWER: Yes. The marriage will not fall under Art. 35(4) of refused to sign the contract alleging that his parents allowed him and his
the Family Code on bigamous marriages, provided that Shelley obtained an family to continue occupying the premises.
absolute divorce, capacitating her to remarry under her national law.
Consequently, the marriage between Marvin and Manel may be valid as long If you were George's counsel, what legal steps will you take? Explain. 5%
as it was solemnized and valid in accordance with the laws of Hongkong [Art.
26, paragraphs 1 and 2, Family Code]. SUGGESTED ANSWER: If I were George's counsel, I would first demand
that Manny vacate the apartment. If Manny refuses, I will file an ejectment
suit. When Manny was allowed by his parents to occupy the premises,
without compensation, the contract of commodatum was created. Upon the
death of the father, the contract was extinguished as it is a purely personal
contract. As the new owner of the apartment George is entitled to exercise
his right of possession over the same.

- IX – PROPERTY (NON-NUISSANCE)

A drug lord and his family reside in a small bungalow where they sell
shabu and other prohibited drugs. When the police found the illegal trade,
they immediately demolished the house because according to them, it was a
nuisance per se that should be abated. Can this demolition be sustained?
Explain. 5%

SUGGESTED ANSWER: No, the demolition cannot be sustained. The

house is not a nuisance per se or at law as it is not an act, occupation, or
structure which is a nuisance at all times and under any circumstances,
regardless of location or surroundings. A nuisance per se is a nuisance in and
of itself, without regard to circumstances [Tolentino, p. 695, citing Wheeler
v. River Falls Power Co., 215 Ala. 655, 111 So. 907].

111
 - X – SUCCESSION (TESTAMENTARY DISPOSITION) SUGGESTED ANSWER: Jayson will still be entitled to the entire
P12 Million as the father, brother and sister will be excluded by a
Don died after executing a Last Will and Testament leaving his estate legitimate son of the decedent [Art. 887, New Civil Code]. This follows
valued at P12 Million to his common-Iaw wife Roshelle. He is survived by his the principle that the descendants exclude the ascendants from
brother Ronie and his half-sister Michelle. inheritance.

1. Was Don's testamentary disposition of his estate in accordance with

the law on succession? Whether you agree or not, explain your
answer. 2.5%

SUGGESTED ANSWER: Yes, Don's testamentary disposition of his

estate is in accordance with the law on succession. Don has no
compulsory heirs not having ascendants, descendants nor a spouse
[Art. 887, New Civil Code]. Brothers and sisters are not compulsory
heirs. Thus, he can bequeath his entire estate to anyone who is not
otherwise incapacitated to inherit from him. A common-law wife is
not incapacitated under the law, as Don is not married to anyone.

2. If Don failed to execute a will during his lifetime, as his lawyer, how
will you distribute his estate? Explain. 2.5%

SUGGESTED ANSWER: After paying the legal obligations of the

estate, I will give Ronie, as full-blood brother of Don, 2/3 of the net
estate, twice the share of Michelle, the half-sister who shall receive
1/3. Roshelle will not receive anything as she is not a legal heir [Art.
1006 New Civil Code].

3. Assuming he died intestate survived by his brother Ronie, his half-

sister Michelle, and his legitimate son Jayson, how will you. distribute
his estate? Explain. 2.5%

SUGGESTED ANSWER: Jayson will be entitled to the entire P12

Million as the brother and sister will be excluded by a legitimate son
of the decedent. This follows the principle of proximity, where "the
nearer excludes the farther."

4. Assuming further he died intestate, survived by his father Juan, his

brother Ronie, his half-sister Michelle, and his legitimate son Jayson,
how will you distribute his estate? Explain. 2.5%

112
 - XI – PROPERTY (DONATION, UNREGISTERED) & Sons, Inc. v. Roman Catholic Bishop, G.R. No. 133705, March 31, 2005; Heirs
ofRozendo Sevilla v. De Leon, G.R. No. 149570, March 12, 2004).
Spouses Alfredo and Racquel were active members of a religious
congregation. They donated a parcel of land in favor to that congregation in
a duly notarized Deed of Donation, subject to the condition that the Minister
shall construct thereon a place of worship within 1 year from the acceptance
of the donation. In an affidavit he executed in behalf of the congregation, the
Minister accepted the donation. The Deed of Donation was not registered
with the Registry of Deeds.

However, instead of constructing a place of worship, the Minister

constructed a bungalow on the property he used as his residence.
Disappointed with the Minister, the spouses revoked the donation and
demanded that he vacate the premises immediately. But the Minister refused
to leave, claiming that aside from using the bungalow as his residence, he is
also using it as a place of worship on special occasions. Under the
circumstances, can Alfredo and Racquel evict the Minister and recover
possession of the property?

If you were the couple's counsel, what action will you take to protect the
interests of your clients? 5%

SUGGESTED ANSWER: Yes, Alfredo and Racquel can bring an action for
ejectment against the Minister for recovery of possession of the property
evict the Minister and recover possession of the property. An action for
annulment of the donation, reconveyance and damages should be filed to
protect the interests of my client. The donation is an onerous donation and
therefore shall be governed by the rules on contracts. Because there was no
fulfillment or compliance with the condition which is resolutory in character,
the donation may now be revoked and all rights which the donee may have
acquired under it shall be deemed lost and extinguished (Central Philippine
University, G.R. No. 112127, July 17,1995).

ALTERNATIVE ANSWER: No, an action for ejectment will not prosper. I

would advice Alfredo and Racquel that the Minister, by constructing a
structure which also serves as a place of worship, has pursued the objective
of the donation. His taking up residence in the bungalow may be regarded as
a casual breach and will not warrant revocation of the donation. Similarily,
therefore, an action for revocation of the donation will be denied (C. J. Yulo

113
 - XIV – PERSONS (CHANGE OF NAME) - XV – PERSONS (CORRECTION OF ENTRIES, ADOPTION)

Zirxthoussous delos Santos filed a petition for change of name with the 1. What entries in the Civil Registry may be changed or corrected
Office of the Civil Registrar of Mandaluyong City under the administrative without a judicial order? 2.5%
proceeding provided in Republic Act No.9048. He alleged that his first name
sounds ridiculous and is extremely difficult to spell and pronounce. After SUGGESTED ANSWER: Only clerical or typographical errors and
complying with the requirements of the law, the Civil Registrar granted his first or nick names may be changed or corrected without a judicial
petition and changed his first name Zirxthoussous to "Jesus." His full name order under RA 9048.
now reads "Jesus delos santos."
Clerical or typographical errors refer to mistakes committed in
Jesus delos santos moved to General santos City to work in a multi- the performance of clerical work in writing, copying, transcribing or
national company. There, he fell in love and married Mary Grace delos santos. typing an entry in the civil register. The mistake is harmless and
She requested him to have his first name changed because his new name innocuous, such as errors in spelling, visible to the eyes or obvious to
"Jesus delos santos" is the same as that of her father who abandoned her the understanding, and can be corrected or changed only by
family and became a notorious drug lord. She wanted to forget him. Hence, reference to other existing records. Provided, however, that no
Jesus filed another petition with the Office of the Local Civil Registrar to correction must involve the change of nationality, age, status or sex
change his first name to "Roberto." He claimed that the change is warranted of the petitioner.
because it will eradicate all vestiges of the infamy of Mary Grace's father.
2. Mayan illegitimate child, upon adoption by her natural father, use the
Will the petition for change of name of Jesus delos Santos to Roberto surname of her natural mother as her middle name? 2.5%
delos santos under Republic Act No.9048 prosper? Explain. 10%
SUGGESTED ANSWER: Yes, an illegitimate child, upon adoption
SUGGESTED ANSWER: No, under the law, Jesus may only change his by her natural father, can use the surname of her natural mother as
name once. In addition, the petition for change of name may be denied on her middle name. The Court has ruled that there is no law prohibiting
the following grounds: (1) Jesus is neither ridiculous, nor tainted with an illegitimate child adopted by her natural father to use, as middle
dishonor nor extremely difficult to write or pronounce. (2) There is no name, her mother's surname. What is not prohibited is allowed. After
confusion to be avoided or created with the use of the registered first name all, the use of the maternal name as the middle name is in accord with
or nickname of the petitioner. (3) The petition involves the same entry in the Filipino culture and customs and adoption is intended for the benefit
same document, which was previously corrected or changed under this Order of the adopted [In re: Adoption of Stephanie Nathy Astorga Garcia,
[Rules and Regulations Implementing RA 9048]. G.R. No. 148311, March 31, 2005; Rabuya, The Law on Persons and
Family Relations, p. 613].

114
 - XVI – PERSONS (PSYCHOLOGICAL INCAPACITY) discharging his marital obligations. For instance, if his perversion is of such a
nature as to preclude any normal sexual activity with his spouse.
1. Article 36 of the Family Code provides that a marriage contracted by
any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of
marriage, shall be void.

Choose the spouse listed below who is psychologically

incapacitated. Explain. 2.5%

a. Nagger
b. Gay or lesbian
c. Congenital sexual pervert
d. Gambler
e. Alcoholic

SUGGESTED ANSWER: The best answers are B and C. To be sure, the

existence and concealment of these conditions at the inception of marriage
renders the marriage contract voidable (Art. 46, Family Code). They may
serve as indicia of psychological incapacity, depending on the degree and
severity of the disorder (Santos v. CA, G.R. No. 112019, Jan. 4, 1995). Hence,
if the condition of homosexuality, lesbianism or sexual perversion, existing at
the inception of the marriage, is of such a degree as to prevent any form of
sexual intimacy, any of them may qualify as a ground for psychological
incapacity. The law provides that the husband and wife are obliged to live
together, observe mutual love, respect and fidelity (Art. 68, Family Code). The
mandate is actually the spontaneous, mutual affection between the spouses.
In the natural order it is sexual intimacy which brings the spouses wholeness
and oneness (Chi Ming Tsoi v. CA, G.R. No. 119190, January 16,1997).
ALTERNATIVE ANSWER: None of them are necessarily psychologically
incapacitated. Being a nagger, etc. are at best only physical manifestations
indicative of psychological incapacity. More than just showing the
manifestations of incapacity, the petitioner must show that the respondent
is incapacitated to comply with the essential marital obligations of marriage
and that it is also essential that he must be shown to be incapable of doing so
due to some psychological, not physical illness (Republic v. Quintero-
Hamano, G.R. No. 149498, May 20, 2004).
ALTERNATIVE ANSWER: A congenital sexual pervert may be
psychologically incapacitated if his perversion incapacitates him from

115
 2005 BAR QUESTIONS dissolve their conjugal partnership and to separate their properties
during the marriage has to be approved by the court.



b) Discuss the effects of the said settlements on the properties acquired

by the spouses. (2%)
Q1

(Persons, Marriage, Property Relations, Conjugal Partnership of Gains)
Since the marriage settlement was binding between the parties,
Gabby and Mila got married at Lourdes Church in Quezon City on July
conjugal partnership of gains was the regime of their property relations.
10, 1990. Prior thereto, they executed a marriage settlement whereby they
Under the regime of conjugal partnership of gains, all properties acquired by
agreed on the regime of conjugal partnership of gains. The marriage
the spouses during the marriage, jointly or by either one of them, through
settlement was registered in the Register of Deeds of Manila, where Mila is
their work or industry are conjugal. Therefore, the residential house and lot,
a resident. In 1992, they jointly acquired a residential house and lot, as well
and the condominium unit are conjugal having been jointly acquired by the
as a condominium unit in Makati. In 1995, they decided to change their
couple during the marriage. Inasmuch as the subsequent agreement on
property relations to the regime of complete separation of property. Mila
dissolution of the conjugal partnership and separation of property was
consented, as she was then engaged in a lucrative business. The spouses
invalid, conjugal partnership subsisted between the parties. Therefore, the
then signed a private document dissolving their conjugal partnership and
mansion and the agricultural land are also conjugal having been acquired by
agreeing on a complete separation of property.
one of the spouses during the marriage.


Thereafter, Gabby acquired a mansion in Baguio City, and a 5-hectare
c) What properties may be held answerable for Mila's obligations?
agricultural land in Oriental Mindoro, which he registered exclusively in his
Explain. (2%)
name.


The marriage settlement cannot prejudice 3rd parties, such as the
In the year 2000, Mila's business venture failed, and her creditors sued
creditors, because it was not registered with the local civil registrar where
her for P10,000,000.00. After obtaining a favorable judgment, the creditors
the marriage was recorded. To bind 3rd parties, the Family Code requires
sought to execute on the spouses' house and lot and condominium unit, as
registration of the marriage settlement not only with the proper registers of
well as Gabby's mansion and agricultural land.
deeds but also with the local civil registrar where the marriage was

recorded. Hence, if the rules on conjugal partnership will prejudice the
a) Discuss the status of the first and the amended marriage settlements.
creditors, the rules on absolute community will be applied instead.
(2%)
However, insofar as debts contracted by one spouse without the consent of

the other are concerned, the rule is the same for both conjugal partnership
1) The 1st marriage settlement was valid because it was in writing,
and absolute community. The partnership or community is liable for debts
signed by the parties and executed before the celebration of the
contracted by one spouse but only to the extend that it benefited the
marriage.
family. Therefore, if the debts contracted by Mila redounded to the benefit
2) The subsequent agreement of the parties was void as a modification
of the family, all the conjugal partnership properties are liable to pay them
of their marriage settlement. To be valid, the modification must be
but only to the extent the family was benefited. The separate properties of
executed before the celebration of the marriage. The subsequent
Mila may be held answerable for Mila’s debts and obligations that did not
agreement of the arties did not effect a dissolution of their conjugal
redound to the benefit of the family.
partnership and a separation of their properties because it was not

approved by the court. To be valid, an agreement by the parties to

116
 Q2 of the child. The child in that case was presumed to be the legitimate of the
(Persons; Marriage; Foreign Divorce; Filiation) estranged husband.
In 1985, Sonny and Lulu, both Filipino citizens, were married in the
Philippines. In 1987, they separated, and Sonny went to Canada, where he e. Who are the heirs of Sonny? Explain. (2%)
obtained a divorce in the same year. He then married another Filipina,
Auring, in Canada on January 1,1988. They had two sons, James and John. The heirs of Sonny are his wife Lulu, and his 2 illegitimate children James
In 1990, after failing to hear from Sonny, Lulu married Tirso, by whom she and John. The void remarriage of Lulu to Tirso did not incapacitate her to
had a daughter, Verna. In 1991, Sonny visited the Philippines where he succeed Sonny.
succumbed to heart attack.

a. Discuss the effect of the divorce obtained by Sonny and Lulu in Canada.
(2%)

The divorce obtained by Sonny in Canada was not valid because he and
his wife were both Filipino citizens. Divorce between a Filipino couple is not
valid under Philippine law even though they are living abroad. (Art. 15, Civil
Code)

b. Explain the status of the marriage between Sonny and Auring. (2%)

Since the divorce obtained by Sonny was void, his marriage to Auring is
necessarily void ab initio because of his subsisting marriage to Lulu. (Art. 41,
Family Code)

c. Explain the status of the marriage between Lulu and Tirso. (2%)

The marriage between Lulu and Tirso is also void ab initio because Lulu
is still validly married to Sonny.

d. Explain the respective filiation of James, John and Verna. (2%)

James and John are the illegitimate children of Sonny and Auring
because they were conceived and born outside a valid marriage. Verna is an
illegitimate child of Lulu and Tirso having been conceived and born to the
invalid marriage of Lulu and Tirso. Verna cannot be presumed as the
legitimate child of Sonny because of the supervening marriage that was
celebrated between Lulu and Tirso even though such marriage is void ab
initio. The case of Liyao v. Liayo is not applicable because in that case, the
wife begot a child by another man during her marriage to her estranged
husband but no marriage was celebrated between the wife and the father

117
 Q3 Q4
(Succession; Legitimes; Compulsory Heirs) (Persons; Paternity & Filiation)
Emil, the testator, has three legitimate children, Tom, Henry and Steve was married to Linda, with whom he had a daughter, Tintin. Steve
Warlito; a wife named Adette; parents named Pepe and Pilar; an fathered a son with Dina, his secretary of 20 years, whom Dina named Joey,
illegitimate child, Ramon; brother, Mark; and a sister, Nanette. Since his born on September 20, 1981. Joey's birth certificate did not indicate the
wife Adette is well-off, he wants to leave to his illegitimate child as much of father's name. Steve died on August 13, 1993, while Linda died on
his estate as he can legally do. His estate has an aggregate net amount of December 3, 1993, leaving their legitimate daughter, Tintin, as sole heir. On
P1,200,000, and all the above-named relatives are still living. Emil now May 16, 1994, Dina filed a case on behalf of Joey, praying that the latter be
comes to you for advice in making a will. declared an acknowledged illegitimate son of Steve and that Joey be given
his share in Steve's estate, which is now being solely held by Tintin. Tintin
How will you distribute his estate according to his wishes without put up the defense that an action for recognition shall only be filed during
violating the law on testamentary succession? (5%) the lifetime of the presumed parents and that the exceptions under Article
285 of the Civil Code do not apply to him since the said article has been
In his will, Emil should give his compulsory heirs just their respective repealed by the Family Code. In any case, according to Tintin, Joey's birth
legitimes and give all of the free portion to his illegtimate child in addition to certificate does not show that Steve is his father.
the said child’s legitime. He should divid his estate in his will as follows:
a. Does Joey have a cause of action against Tintin for recognition and
Tom P200,000 (legitime) partition? Explain. (2%)
Henry P200,000 (legitime)
Warlito P200,000 (legitime) Yes, Joey has a cause of action against Tintin. While the Family Code has
Adette P200,000 (legitime) repealed the provisions of the New Civil Code on proof of filiation, said
Ramon P400,000 (P100K legitime + P300K free repeal did not impair vested rights. Joey was born an illegitimate child in
portion) 1981. As an illegitimate child, he had acquired, at birth, the right to prove
TOTAL P1,200,000 his filiation in accordance with the provisions of the New Civil code in force
at that time. Under the New Civil Code, an illegitimate child may file an
action to compel his recognition even after the death of the putative father
when the father died during the minority of the child. While the Family Code
has repealed this provision, it will not operate to prejudice Joey who has
already acquired a vested right thereto.

Alternative suggested answer
The Family code governs the capacity of his heirs to inherit, since Steve
died in 1993. The Family Code requires that because the illegitimate child
has no documentary proof of his filiation, the action to establish his filiation
must be brought during the lifetime of his alleged father, whose death
occurred in 1993.

Hence, the illegitimate child Joey has no cause of action.

b. Are the defenses set up by Tintin tenable? Explain. (2%)

118
 Q5
The defenses of Tintin are not tenable. The fact that Joey’s birth (Persons; Adoption)
certificate does not show that Steve was his father is of no moment. The law In 1984, Eva, a Filipina, went to work as a nurse in the USA. There, she
does not require such mention. Besides, the New Civil Code provides that met and fell in love with Paul, an American citizen, and they got married in
when the father did not sign the birth certificate, his name should not be 1985. Eva acquired American citizenship in 1987. During their sojourn in the
disclosed therein. While it is true that capacity to inherit is determined at Philippines in 1990, they filed a joint petition for the adoption of Vicky, a 7-
the time of the death of the decedent and that filiation is an element of year old daughter of Eva's sister. The government, through the Office of the
capacity to inherit, filiation is determined not at the time of the death of the Solicitor General, opposed the petition on the ground that the petitioners,
decedent but at the time of the birth of the child who is born with a status. being both foreigners, are disqualified to adopt Vicky.
Such status may subsequently change such as in legitimation, but
legitimation is deemed to retroact to the time of birth. In the same manner, a) Is the government's opposition tenable? Explain. (2%)
recognition when given voluntarily by the father, or decreed by the court,
retroacts to the time of the child’s birth. Yes, the position of the government is tenable. Foreigners are
disqualified to adopt unless they fall in any of the exceptions provided for in
c. Supposing that Joey died during the pendency of the action, should the the law. Eva and Paul are both foreigners. Eva, falls in one of the exceptions.
action be dismissed? Explain. (2%) She is qualified to adopt because she is a former Filipino citizen who wishes
to adopt a relative by consanguinity. Unfortunately, Paul is not qualified to
If Joey filed the action and died when the New civil Code was still in adopt because he does not fall in any of the exceptions. Hence, they cannot
force, his action would be dismissed because the action was not adopt jointly. When husband and wife are adopting jointly, both of them
transmissible to the heirs of the illegitimate child (Conde v. Abaya, 13 Phil must be qualified to adopt in their own right. Eva cannot, alone by herself,
249). But if the action was filed after effectivity of the Family Code, and Joey adopt her niece because husband and wife must adopt jointly unless they
died during the pendency of the action for recognition, it should not be fall in any of the exceptions provided for in the law. They cannot adopt
dismissed. Under the present Family Code, an action commenced by a separately because they do not fall in any of the exceptions. Hence, whether
legitimate child to claim his legitimate filiation is not extinguished by his separately or jointly, Eva and Paul cannot adopt Vicky in the Philippines.
death. The family Code makes this provision applicable to the action for (Domestic Adoption Law RA 8552)
recognition filed by an illegitimate child. Joey has the right to invoke this
provision because it does not impair any vested rights. (Art. 175, Family b) Would your answer be the same if they sought to adopt Eva's
Code) illegitimate daughter? Explain. (2%)

No, my answer would be different. Eva is qualified to adopt her
illegitimate daughter, because she falls in one of the exceptions that allow
foreigners to adopt. She is a former Filipino citizen adopting her relative by
consanguinity. Eva can adopt separately her illegitimate child because her
case is also an exception to the rule that husband and wife should adopt
jointly.

c) Supposing that they filed the petition to adopt Vicky in the year
2000, will your answer be the same? Explain. (2%)

119
 Yes, my answer will be the same. The new Law on Domestic Adoption Q6
allows a foreigner to adopt in the Philippines if he has been residing in the (Persons; Adoption)
Philippines for at leased 3 years prior to the filing of the petition unless the Hans Herber, a German national, and his Filipino wife, Rhoda, are
law waives that residency requirement. Paul and Eva have not resided in the permanent residents of Canada. They desire so much to adopt Magno, an
Philippines for the last 3 years. However, Eva will qualify for waiver because 8-year old orphaned boy and a baptismal godson of Rhoda. Since the
she was a former Filipino citizen who wishes to adopt a relative by accidental death of Magno’s parents in 2004, he has been staying with his
consanguinity within the 4th degree. Unfortunately, Paul will not qualify to aunt who, however, could hardly afford to feed her own family.
adopt because he does not fall in any of the instances for waiver to apply. Unfortunately, Hans and Rhoda cannot come to the Philippines to adopt
They cannot adopt jointly because one of the is not qualified. Neither may Magno although they possess all the qualifications as adoptive parents.
Eva adopt alone because she does not fall in any of the exceptions that
allow husband and wife to adopt separately. Is there a possibility for them to adopt Magno? How should they go
about it?

Under RA 8043 establishing the rules for inter-country adoption of
Filipino children, the spouses may file an application to adopt a Filipino child
with the Inter-Country Adoption Board (ICAB) after they have been
determined eligible and fit to adopt by the State Welfare Agency or a
licensed adoption agency in Canada. The Canadian agency will forward the
required supporting documents to the ICAB for matching with a Filipino
child. The spouses, after filing a petition with the ICAB, shall be issued the
Placement Authority and when all the travel documents of the child who is
declared legally eligible for adoption as determined by the ICAB, are read
the adoptive parents or any one of them shall personally fetch the child in
the Philippines for adoption in the court of the foreigner’s country.

120
 Q7 4. Commence criminal prosecution for violation of the penal provisions
(Property, Easements) of PD 957, Sec. 39.
Don was the owner of an agricultural land with no access to a public
road. He had been passing through the land of Ernie with the latter's
acquiescence for over 20 years. Subsequently, Don subdivided his property
into 20 residential lots and sold them to different persons. Ernie blocked the
pathway and refused to let the buyers pass through his land.

a) Did Don acquire an easement of right of way? Explain.

Don did not acquire an easement of right of way. His passage through
Ernie’s land was by mere acquiescence or tolerance. He cannot claim to
have acquired the easement of right of way by prescription, because this
easement is discontinuous although apparent. Only continuous and
apparent easements can be acquired by prescription of 10 years of
uninterrupted use and enjoyment.

b) Could Ernie close the pathway and refuse to let the buyers pass? Give
reasons.

As there is no right of way existing in favor of Don’s land, Ernie could
close the pathway. The lot buyers may request Don to establish a right of
way as voluntary easement by entering into a contract with Ernie, or file
action to constitute a legal easement by proving compliance with the 4
requisites for creating a legal easement of right of way under Arts. 649 and
650 of the new Civil Code.

c) What are the rights of the lot buyers, if any? Explain.

The lot buyers have the right to:
1. Ask for constitution of legal easement of right of way;
2. Require Don to provide for a right of way. Under Sec. 29 of PD 957,
the owner or developer of a subdivision without access to any
existing road must secure a right of way;
3. Formally complaint to the Housing and Land Use Regulatory Board
regarding Don’s failure to comply with PD 957 specifically:
a. Failure to provide for a right of way
b. Failure to convert the land from agricultural to residential
under agrarian law
c. Failure to secure a license to sell

121
 Q8
(Property; Nuisance) d. A noisy or dangerous factory in a private land
State with reason whether each of the following is a nuisance, and if so,
give its classification, whether public or private. A noisy or dangerous factory even if built in a private land may be
considered a nuisance if it offends the senses of the owners of the adjacent
a. A squatter’s hut property or poses a danger to their safety (Art. 694, par. 1, Civil Code). this
kind of nuisance may be classified as a public nuisance if it affects and
According to Art. 694 of the Civil Code, a nuisance is any act, omission, annoys those who come within its sphere.
establishment, business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or e. Uncollected garbage
(2) Annoys or offends the senses; or
(3) Shocks, morality; or defies or disregards decency or Uncollected garbage can be injurious to health and even the
(4) Obstructs or interferes with the free passage of any public highway environment. It is thus, considered a public nuisance.
or street, or any body of water; or
(5) Hinders or impairs the use of property.

A nuisance may either be public or private. Under Art. 695, a public
nuisance affects a community or neighborhood or any considerable number
of persons, although the extent of the annoyance, danger or damage upon
individuals may be unequal. A private nuisance, on the other hand, is one
that violates only private rights and produces damage to but one or a few
persons.

A squatter’s hut, being an illegal construction, constitutes a public
nuisance per se, if it poses problems of health and sanitation. (City of Manila
v. Garcia, 19 SCRA 41 (1967)). If the squatter’s hut is built on a private land
and hinders or impairs the owner’s use of his or her own property, then it
would constitute a private nuisance.

b. A swimming pool

A swimming pool is not a nuisance and is an exception to the attractive
nuisance doctrine (Hidalgo v. Guillermo, 91 Phil. 488 (1952)). It generally
does not cause an injury, harm or prejudice to an individual or the public.
(Art. 694, Par. 1)

c. A house of prostitution

A house of prostitution is a public nuisance because it shocks or
disregards the decency or morality of the community. (Art. 694, Par. 3)

122
 Q15
(Persons; Special Parental Authority)
Under the law on quasi-delict, aside from the persons who caused injury
to persons, who else are liable under the following circumstances:
Xxx
d. A 15-year old high school student stabs his classmates who is his rival
for a girl while they were going out of the classroom after their last
class. Explain.

Under Art. 218 of the Family Code, the school, its administrators and
teachers, or the individual, entity or institution engaged in child care shall
have special parental authority and responsibility over the minor child while
under their supervision, instruction or custody. Authority and responsibility
shall apply to all authorized activities whether inside or outside the
premises of the school, entity or institution.

123
 2004 BAR QUESTIONS Marriage; Void Marriages (2004)
X. A. BONI and ANNE met while working overseas. They became

sweethearts and got engaged to be married on New Year’s Eve aboard a
PERSONS AND FAMILY (2004)
cruise ship in the Caribbean. They took the proper license to marry in New

York City, where there is a Filipino consulate. But as planned the wedding
Waiver of Rights (2004)
ceremony was officiated by the captain of the Norwegian-registered vessel in
IX. B. DON, an American businessman, secured parental consent for the
a private suite among selected friends. Back in Manila, Anne discovered that
employment of five minors to play certain roles in two movies he was
Boni had been married in Bacolod City 5 years earlier but divorced in Oslo
producing at home in Makati. They worked at odd hours of the day and night,
only last year. His first wife was also a Filipina but now based in Sweden. Boni
but always accompanied by parents or other adults. The producer paid the
himself is a resident of Norway where he and Anne plan to live permanently.
children talent fees at rates better than adult wages. But a social worker, DEB,
Anne retains your services to advise her on whether her marriage to Boni is
reported to OSWD that these children often missed going to school. They
valid under Philippine law? Is there anything else she should do under the
sometimes drank wine, aside from being exposed to drugs. In some scenes,
circumstances? (5%)
they were filmed naked or in revealing costumes. In his defense, DON

contended all these were part of artistic freedom and cultural creativity.
SUGGESTED ANSWER:
None of the parents complained, said DON. He also said they signed a
If Boni is still a Filipino citizen, his legal capacity is governed by Philippine
contract containing a waiver of their right to file any complaint in any office
Law (Art. 15 Civil Code). Under Philippine Law, his marriage to Anne is void
or tribunal concerning the working conditions of their children acting in the
because of a prior existing marriage which was not dissolved by the divorce
movies. Is the waiver valid and binding? Why or why not? Explain. (5%)
decreed in Oslo. Divorce obtained abroad by a Filipino is not recognized. If

Boni was no longer a Filipino citizen, the divorce is valid. Hence, his marriage
SUGGESTED ANSWER:
to Anne is valid if celebrated in accordance with the law of the place where it
The waiver is not valid. Although the contracting parties may establish
was celebrated. Since the marriage was celebrated aboard a vessel of
such stipulations, clauses, terms and conditions as they may deem
Norwegian registry, Norwegian law applies. If the Ship Captain has authority
convenient, they may not do so if such are contrary to law, morals, good
to solemnize the marriage aboard his ship, the marriage is valid and shall be
customs, public order, or public policy (Article 1306, Civil Code). The parents'
recognized in the Philippines. As to the second question, if Boni is still a
waiver to file a complaint concerning the working children acting in the
Filipino, Anne can file an action for declaration of nullity of her marriage to
movies is in violation of the Family Code and Labor laws. Thus, the waiver is
him.
invalid and not binding. The Child Labor Law is a mandatory and prohibitory

law and the rights of the child cannot be waived as it is contrary to law and
public policy.

124
 Parental Authority; Substitute vs. Special (2004) Paternity & Filiation; Common-Law Union (2004)
II. A. Distinguish briefly but clearly between: III. A. RN and DM, without any impediment to marry each other, had been
2. Substitute parental authority and special parental authority. living together without benefit of church blessings. Their common-law union
resulted in the birth of ZMN. Two years later, they got married in a civil
SUGGESTED ANSWER: ceremony. Could ZMN be legitimated? Reason. (5%)
In substitute parental authority, the parents lose their parental authority
in favor of the substitute who acquires it to the exclusion of the parents. In SUGGESTED ANSWER:
special parental authority, the parents or anyone exercising parental ZMN was legitimated by the subsequent marriage of RN and DM because
authority does not lose parental authority. Those who are charged with at the time he was conceived, RN and DM could have validly married each
special parental authority exercise such authority only during the time that other. Under the Family Code children conceived and born outside of wedlock
the child is in their custody or supervision. Substitute parental authority of parents who, at the time of the former's conception, were not disqualified
displaces parental authority while special parental authority concurs with by any impediment to marry each other are legitimated by the subsequent
parental authority. marriage of the parents.

125
 CONFLICT OF LAWS (2004) Nationality Theory (2004)
VII. A. PH and LV are HK Chinese. Their parents are now Filipino citizens
Domiciliary theory vs. Nationality Theory (2004) who live in Manila. While still students in MNS State, they got married
II. Distinguish briefly but clearly between: although they are first cousins. It appears that both in HK and in MNS State
5. Domiciliary theory and nationality theory of personal law. (5%) first cousins could marry legally. They plan to reside and set up business in
the Philippines. But they have been informed, however, that the marriage of
SUGGESTED ANSWER: first cousins here is considered void from the beginning by reason of public
DOMICILIARY THEORY posits that the personal status and rights of a policy. They are in a dilemma. They don’t want to break Philippine law, much
person are governed by the law of his domicile or the place of his habitual less their marriage vow. They seek your advice on whether their civil status
residence. The NATIONALITY THEORY, on the other hand, postulates that it is will be adversely affected by Philippine domestic law? What is your advice?
the law of the person's nationality that governs such status and rights (5%)

SUGGESTED ANSWER:
My advise is as follows: The civil status of' PH and LV will not be adversely
affected by Philippine law because they are nationals of Hong Kong and not
Filipino citizens. Being foreigners, their status, conditions and legal capacity
in the Philippines are governed by the law of Hong Kong, the country of which
they are citizens. Since their marriage is valid under Hong Kong law, it shall
be valid and respected in the Philippines.

126
 Torts; Prescriptive Period (2004) SUCCESSION (2004)
VII. B. In a class suit for damages, plaintiffs claimed they suffered injuries
from torture during martial law. The suit was filed upon President EM’s arrival Successional Rights of Adopted Child (2004)
on exile in HI, a U.S. state. The court in HI awarded plaintiffs the equivalent VIII. A. A Filipino couple, Mr. and Mrs. BM, Jr., decided to adopt YV, an
of P100 billion under the U.S. law on alien tort claims. On appeal, EM’s Estate orphan from St. Claire’s orphanage in New York City. They loved and treated
raised the issue of prescription. It argued that since said U.S. law is silent on her like a legitimate child for they have none of their very own. However, BM,
the matter, the court should apply: (1) HI’s law setting a two-year limitation Jr., died in an accident at sea, followed to the grave a year later by his sick
on tort claims; or (2) the Philippine law which appears to require that claims father, BM, Sr. Each left a sizable estate consisting of bank deposits, lands and
for personal injury arising from martial law be brought within one year. buildings in Manila. May the adopted child, YV, inherit from BM, Jr.? May she
Plaintiffs countered that provisions of the most analogous federal also inherit from BM, Sr.? Is there a difference? Why? Explain. (5%)
statute, the Torture Victims Protection Act, should be applied. It sets ten
years as the period for prescription. Moreover, they argued that equity could SUGGESTED ANSWER:
toll the statute of limitations. For it appeared that EM had procured YV can inherit from BM, Jr. The succession to the estate of BM, Jr. is
Constitutional amendments granting himself and those acting under his governed by Philippine law because he was a Filipino when he died (Article
direction immunity from suit during his tenure. 16, Civil Code). Under Article 1039 of the Civil Code, the capacity of the heir
In this case, has prescription set in or not? Considering the differences in to succeed is governed by the national law of the decedent and not by the
the cited laws, which prescriptive period should be applied: one year under national law of the heir. Hence, whether or not YV can inherit from BM, Jr. is
Philippine law, two years under HI’s law, ten years under U.S. federal law, or determined by Philippine law. Under Philippine law, the adopted inherits
none of the above? Explain. (5%) from the adopter as a legitimate child of the adopter. YV, however, cannot
inherit, in his own right, from the father of the adopter, BM, Sr., because he
SUGGESTED ANSWER: is not a legal heir of BM, Sr. The legal fiction of adoption exists only between
The US Court will apply US law, the law of the Jorum, in determining the the adopted and the adopter. (Teotico v. Del Val 13 SCRA 406 [1965]). Neither
applicable prescriptive period. While US law is silent on this matter, the US may he inherit from BM, Sr. by representing BM, Jr. because in
Court will not apply Philippine law in determining the prescriptive period. It representation, the representative must be a legal heir not only of the person
is generally affirmed as a principle in private international law that procedural he is representing but also of the decedent from whom the represented was
law is one of the exceptions to the application of foreign law by the forum. supposed to inherit (Article 973, Civil Code).
Since prescription is a matter of procedural law even in Philippine
jurisprudence, (Cadalin v. POEA/ NLRC/Brown and Root International, 238
SCRA 721 [1994]), the US Court will apply either HI or Federal law in
determining the applicable prescriptive period and not Philippine law. The
Restatement of American law affirms this principle.

PROPERTY (2004)
None

127
 Amount of Successional Rights (2004) Proceedings; Intestate Proceedings; Jurisdiction (2004)
VIII. B. Mr. XT and Mrs. YT have been married for 20 years. Suppose the X. B. In his lifetime, a Pakistani citizen, ADIL, married three times under
wife, YT, died childless, survived only by her husband, XT. What would be the Pakistani law. When he died an old widower, he left behind six children, two
share of XT from her estate as inheritance? Why? Explain. (5%) sisters, three homes, and an estate worth at least 30 million pesos in the
Philippines. He was born in Lahore but last resided in Cebu City, where he had
SUGGESTED ANSWER: a mansion and where two of his youngest children now live and work. Two of
Under the Civil Code, the widow or widower is a legal and compulsory his oldest children are farmers in Sulu, while the two middle-aged children
heir of the deceased spouse. If the widow is the only surviving heir, there are employees in Zamboanga City. Finding that the deceased left no will, the
being no legitimate ascendants, descendants, brothers, and sisters, nephews youngest son wanted to file intestate proceedings before the Regional Trial
and nieces, she gets the entire estate. Court of Cebu City. Two other siblings objected, arguing that it should be in
Jolo before a Shari’a court since his lands are in Sulu. But Adil’s sisters in
Pakistan want the proceedings held in Lahore before a Pakistani court. Which
court has jurisdiction and is the proper venue for the intestate proceedings?
The law of which country shall govern succession to his estate? (5%)

SUGGESTED ANSWER:
In so far as the properties of the decedent located in the Philippines are
concerned, they are governed by Philippine law (Article 16, Civil Code). Under
Philippine law, the proper venue for the settlement of the estate is the
domicile of the decedent at the time of his death. Since the decedent last
resided in Cebu City, that is the proper venue for the intestate settlement of
his estate. However, the successional rights to the estate of ADIL are
governed by Pakistani law, his national law, under Article 16 of the Civil Code.

128
 2003 BAR QUESTIONS II.
I. TOPIC: FAMILY, MARRIAGE, NATURALIZATION
TOPIC: FAMILY, LAWS GOVERNING MARRIAGE Miss Universe, from Finland, came to the Philippines on a tourist visa.
While in this country, she fell in love with and married a Filipino doctor. Her
Gene and Jane, Filipino, met and got married in England while both were
tourist visa having been expired and after the maximum extension allowed
taking ups post-graduate courses there. A few years after their graduation,
therefore, the Bureau of Immigration and Deportation (BID) is presently
they decided to annul their marriage. Jane filed an action to annul her
demanding that she immediately leave the country but she refuses to do so,
marriage to Gene in England on the ground of latter’s sterility, a ground for
claiming that she is already a Filipino Citizen by her marriage to a Filipino
annulment of marriage in England. The English court decreed the marriage
citizen. Can the BID still order the deportation of Miss Universe? Explain. 5%
annulled. Returning to the Philippines, Gene asked you whether or not he
would be free to marry his former girlfriend. What would your legal advice SUGGESTED ANSWER:
be? 5%
Yes, the BID can order the deportation of Miss Universe. The marriage of
SUGGESTED ANSWER: an alien woman to a Filipino does not automatically make her a Filipino
Citizen. She must first prove in an appropriate proceeding that she does not
No, Gene is not free to marry his former girlfriend. His marriage to Jane
have any disqualification for Philippine citizenship. (Yung Uan Chu v. Republic
is valid according to the forms and solemnities of British law, is valid here
of the Philippines, 158 SCRA 593 [1988]). Since Miss Universe is still a
(Article 17, 1st par., NCC). However, since Gene and Jane are still Filipinos
foreigner, despite her marriage to a Filipino doctor, she can be deported upon
although living in England, the dissolution of their marriage is still governed
expiry of her
by Philippine law (Article 15, NCC). Since, sterility is not one of the grounds
for the annulment of a marriage under Article 45 of the Family Code, the allowable stay in the Philippines.
annulment of Gene’s marriage to Jane on that ground is not valid in the
Philippines (Article 17, NCC) ANOTHER SUGGESTED ANSWER:

ALTERNATIVE ANSWER: No, the Bureau of Immigration cannot order her deportation. An alien
woman marrying a Filipino, native-born or naturalized, becomes ipso facto a
Yes, Gene is free to marry his girlfriend because his marriage was validly Filipino if she is not disqualified to be a citizen of the Philippines (Mo Ya Lim
annulled in England. The issue of whether or not a marriage is voidable, v Commission of Immigration, 41 SCRA 292 [1971]), (Sec 4, Naturalization
including the grounds therefore, is governed by the law of the place where Law). All that she has to do is prove in the deportation proceeding the fact of
the marriage was solemnized (lex loci celebrationis). Hence, even if sterility is her marriage and that she is not disqualified to become a Filipino Citizen.
not a ground to annul the marriage under the Philippine law, the marriage is
nevertheless voidable because sterility makes the marriage voidable under ANOTHER SUGGESTED ANSWER:
English law. Therefore, annulment of the marriage in England is valid in the
Philippines. It depends. If she is disqualified to be a Filipino citizen, she may be
deported. If she is not disqualified to be a Filipino citizen, she may not be
deported. An alien woman who marries a Filipino citizen becomes one. The
marriage of Miss Universe to the Filipino doctor did not automatically make
her a Filipino citizen. She still has to prove that she is not disqualified to
become a citizen.

129
 IV. VI

TOPIC: PERSONS, DAMAGES, DEATH OF UNBORN CHILD

If a pregnant woman passenger of a bus were to suffer an abortion TOPIC: MARRIAGE, REMEDIES IF GROUNDS FOR VOID, VOIDABLE AND
following a vehicular accident due to the gross negligence of the bus driver, LEG SEP ARE PRESENT
may she and her husband claim damages from the bus company for the death
of their unborn child? Explain. 5% Which of the following remedies, i.e., (a) declaration of nullity of
marriage, (b) annulment of marriage, (c) legal separation, and/or (d)
SUGGESTED ANSWER: separation of property, can an aggrieved spouse avail himself/herself of-

No, the spouses cannot recover actual damages in the form of indemnity A. If the wife discovers after the marriage that her husband has “AIDS”
for the loss of life of the unborn child. This is because the unborn child is not
yet considered a person and the law allows indemnity only for loss of life of B. If the wife goes (to) abroad to work as a nurse and refuses to come
person. The mother, however may recover damages for the bodily injury she home after the expiration of her three-year contract there.
suffered from the loss of the fetus which is considered part of her internal
C. If the husband discovers after the marriage that his wife has been a
organ. The parents may also recover damages for injuries that are inflicted
prostitute before they got married.
directly upon them, e.g., moral damages for mental anguish that attended
the loss of the unborn child. Since there is gross negligence, exemplary D. If the husband has a serious affair with his secretary and refuses to stop
damages can also be recovered. (Gelus v. CA, 2 SCRA 801 [1961]) notwithstanding advice from relatives and friends.

E. If the husband beats up his wife every time he comes home drunk. 5%

SUGGESTED ANSWER:

A. Since AIDS is a serious and incurable sexually-transmissible

disease, the wife may file an action for annulment of the
marriage on this ground whether such fact was concealed or not
from the wife, provided that the disease was present at the time
of the marriage. The marriage is voidable even though the
husband was not aware that he had the disease at the time of
marriage.

B. If the wife refuses to come home for three (3) months from the
expiration of her contract, she is presumed to have abandoned
the husband and he may file an action for judicial separation of
property. If the refusal continues for more than one year from
the expiration of her contract, the husband may file the action
for legal separation under Art. 55 (10) of the Family Code on the
ground of abandonment of petitioner by respondent without
justifiable cause for more than one year. The wife is deemed to
have abandoned the husband when she leaves the conjugal
130
 dwelling without any intention of returning (Article 101, FC). The IX
intention not to return cannot be presumed during the 3-year
period of her contract TOPIC: PROPERTY, AVULSION

C. If the husband discovers after the marriage that his wife was a Andres is a riparian owner of a parcel of registered land. His land,
prostitute before they got married, he has no remedy. No however, has gradually diminished in area due to the current of the river,
misrepresentation or deceit as to character, health, rank, fortune while the registered land of Mario on the opposite bank has gradually
or chastity shall constitute fraud as legal ground for an action for increased in area by 200square meters.
the annulment of marriage (Article 46 FC).
(a) Who has the better right over the 200-square meter area that has been
D. The wife may file an action for legal separation. The husband’s added to Mario’s registered land, Mario or Andres?
sexual infidelity is a ground for legal separation 9Article 55, FC).
(b) May a third person acquire said 200-square meter land by prescription?
She may also file an action for judicial separation of property for
failure of her husband to comply with his martial duty of fidelity SUGGESTED ANSWER:
(Article 135 (4), 101, FC).
a. Mario has a better right over the 200 square meters increase in area by
E. The wife may file an action for legal separation on the ground of reason of accretion, applying Article 457 of the New Civil Code, which
repeated physical violence on her person (Article 55 (1), FC). She provides that “to the owners of lands adjoining the banks of rivers belong
may also file an action for judicial with his marital duty of mutual the accretion which they gradually received from the effects of the
respect (Article 135 (4), Article 101, FC). She may also file an current of the waters”.
action for declaration of nullity of the marriage if the husband’s
behavior constitute psychological incapacity existing at the time Andres cannot claim that the increase in Mario’s land is his own, because
of the celebration of marriage. such is an accretion and not result of the sudden detachment of a known
portion of his land and its attachment to Mario’s land, a process called
―avulsion‖. He can no longer claim ownership of the portion of his
registered land which was gradually and naturally eroded due to the
current of the river, because he had lost it by operation of law. That
portion of the land has become part of the public domain.

b. Yes, a third party may acquire by prescription the 200 square meters,
increase in area, because it is not included in the Torrens Title of the
riparian owner. Hence, this does not involve the imprescriptibility
conferred by Section 47, P.D. No. 1529. The fact that the riparian land is
registered does not automatically make the accretion thereto a
registered land. (Grande v. CA, 115 521 (1962); Jagualing v. CA, 194 SCRA
607 (1991).

131
 X not been fixed in the Deed of Donation, the donee is not yet default in his
obligation until the period is fixed by order of the court under Article 1197 of
TOPIC: PROPERTY, DONATION, REVOCATION the New Civil Code. Since the period has not been fixed as yet, the donee is
not yet default, and therefore the donor has no cause of action to revoke the
In 1950, Dr. Alba donated a parcel of land to Central University on
donation. (Dissenting opinion of Davide, CJ, Central Philippine University v.
condition that the latter must establish a medical college on the land to be
Court of Appeals, 246 SCRA 511 [1995])
named after him. In the year 2000, the heirs of Dr. Alba filed an action to
annul the donation and for the reconveyance of the property donated to
them for the failure, after 50 years, of the University to established on the
property a medical school named after their father. The University opposed
the action on the ground of prescription and also because it had not used the
property for some purpose other than that stated in the donation. Should the
opposition of the University to the action of Dr. Alba’s heirs be sustained?
Explain.

SUGGESTED ANSWER:

The donation may be revoked. The non-established of the medical college

on the donated property was a resolutory condition imposed on the donation
by the donor. Although the Deed of Donation did not fix the time for the
established of the medical college, the failure of the donee to establish the
medical college after fifty (50) years from the making of the donation should
be considered as occurrence of the resolutory condition, and the donation
may now be revoked. While the general rule is that in case the period is not
fixed in the agreement of the parties, the period must be fixed first by the
court before the obligation may be demanded, the period of fifty (50) years
was more than enough time for the donee to comply with the condition.
Hence, in this case, there is no more need for the court to fix the period
because such procedure with the condition. (Central Philippine University v.
CA. 246 SCRA 511).

ANOTHER SUGGESTED ANSWER:

The donation may not as yet revoked. The establishment of a medical

college is not a resolutory or suspensive condition but a c”charge”,
“obligation”, or a “mode”. The non-compliance with the charge or mode will
give the donor the right to revoke within four (4) years from the time the
charge was supposed to have been complied with, or to enforce the charge
by specific performance within ten (10) years from the time the cause of
action accrued. Inasmuch as the time to established the medical college has
132
 XI

TOPIC: SUCCESSION, REVOCATION, DEPENDENT RELATIVE REVOCATION

Mr. Reyes executed a will completely valid as to form. A week later,

however, he executed another will which expressly revoked his first will,
which he tore his first will to pieces. Upon the death of Mr. Reyes, his second
will was presented for probate by his heirs, but it was denied probate due to
formal defects. Assuming that a copy of the first will is available, may it now
be admitted to probate and given effect? Why?

SUGGESTED ANSWER: Yes, the first will may be admitted to probate and
given effect. When the testator tore first will, he was under the mistaken
belief that the second will was perfectly valid and he would not have
destroyed the first will had he known that the second will is not valid. The
revocation by destruction therefore is dependent on the validity of the
second will. Since it turned out that the second will was invalid, the tearing of
the first will did not produce the effect of revocation. This is known as the
doctrine of dependent relative revocation (Molo v. Molo, 90 Phil 37.)

ALTERNATIVE ANSWERS: No, the first will cannot be admitted to

probate. While it is true that the first will was successfully revoked by the
second will because the second will was later denied probate, the first will
was, nevertheless, revoked when the testator destroyed it after executing the
second invalid will. (Diaz v. De Leon, 43 Phil 413 [1922]).

133
 XII For each legitimate child – P333,333.33

For each illegitimate child – P166,666.66

TOPIC: SUCCESSION, COMPUTATION, DIVISION OF ESTATE

(a) Luis was survived by two legitimate children, two illegitimate children, (Article 983, New Civil Code; Article 176, Family Code)
his parents, and two brothers. He left an estate of P1 million. Who are
the compulsory heirs of Luis, how much is the legitime of each, and how
much is the free portion of his estate, if any?

SUGGESTED ANSWER:

The compulsory heirs are the two legitimate children and the
two illegitimate children. The parents are excluded by the
legitimate children, while the brothers are not compulsory heirs at
all. Their respective legitimate are:

a) The legitime of the two (2) legitimate children is one

half (1/2) of the estate (P500,000.00) to be divided
between them equally, or P250,000.00 each.

b) The legitimate of each illegitimate child is one-half

(1/2) the legitime of each legitimate child or
P125,000.00.

c) Since the total legitime of the compulsory heirs is

P750,000.00, the balance of P250,000.00 is the free
portion.

(b) Suppose Luis, in the preceding question (a), died intestate. Who are his
intestate heirs, and how much is the share of each in his estate?

SUGGESTED ANSWER:

The intestate heirs are the two (2) legitimate children and the
two (2) illegitimate children. In intestacy the estate of the decedent
is divided among the legitimate and illegitimate children such that
the share of each illegitimate child is one-half the share of each
legitimate child.
Their share are :

134
 2000 BAR QUESTIONS Qualifications of Adopter
Sometime in 1990, Sarah, born a Filipino but by then a naturalized

American citizen, and her American husband Tom, filed a petition in the
PERSONS
Regional Trial Court of Makati, for the adoption of the minor child of her
Death; Effects; Simultaneous Death
sister, a Filipina. Can the petition be granted? (5%)
b) Cristy and her late husband Luis had two children, Rose and Patrick,
SUGGESTED ANSWER: It depends. Rules on Adoption effective
One summer, her mother-in-law, aged 70, took the two children, then aged
August 22, 2002 provides the following; SEC. 4. Who may adopt. –
10 and 12, with her on a boat trip to Cebu. Unfortunately, the vessel sank en
The following may adopt: Any Filipino Citizen of legal age, in
route, and the bodies of the three were never found. None of the survivors
possession of full civil capacity and legal rights, of good moral
ever saw them on the water. On the settlement of her mother-in-law's estate,
character, has not been convicted of any crime involving moral
Cristy files a claim for a share of her estate on the ground that the same was
turpitude; who is emotionally and psychologically capable of caring
inherited by her children from their grandmother in representation of their
for children, at least sixteen (16) years older than the adoptee, and
father, and she inherited the same from them. Will her action prosper? (2%)
who is in a position to support and care for his children in keeping
SUGGESTED ANSWER: No, her action will not prosper. Since
with the means of the family.
there was no proof as to who died first, all the three are deemed to
• The requirement of a 16-year difference between the age of
have died at the same time and there was no transmission of rights
the adopter and adoptee may be waived when the adopter is the
from one to another, applying Article 43 of the New Civil Code.
biological parent of the adoptee or is the spouse of the adoptee’s
ALTERNATIVE ANSWER: No, her action will not prosper. Under
parent;
Article 43 of the New Civil Code, inasmuch as there is no proof as to
Any Alien possessing the same qualifications as above-stated for
who died first, all the three are presumed to have died at the same
Filipino nationals: Provided, a) That his country has diplomatic
time and there could be no transmission of rights among them. Her
relations with the Republic of the Philippines, b) that he has been
children not having inherited from their grandmother. Cristy has no
living in the Philippines for at least three (3) continuous years prior to
right to share in her mother-inlaw's estate. She cannot share in her
the filing of the petition for adoption and maintains such residence
own right as she is not a legal heir of her mother-in-law. The
until the adoption decree is entered, c) that he has been certified by
survivorship provision of Rule 131 of the Rules of Court does not
his diplomatic or consular office or any appropriate government
apply to the problem. It applies only to those cases where the issue
agency to have the legal capacity to adopt in his country, d) and that
involved is not succession.
his government allows the adoptee to enter his country as his

adopted child. Provided, further, That the requirements on residency
and certification of the alien’s qualification to adopt in his country
may be waived for the following: a) a former Filipino citizen who
seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or b) one who seeks to adopt the legitimate
child of his Filipino spouse; or c) one who is married to a Filipino
citizen and seeks to adopt jointly with his spouse a relative within the
fourth (4th) degree of consanguinity or affinity of the Filipino spouse.

135
 Family Code; Retroactive Application; Vested Rights Property Relations; Obligations; Benefit of the Family
On April 15, 1980, Rene and Angelina were married to each other without As finance officer of K and Co., Victorino arranged a loan of P5 Million
a marriage settlement. In 1985, they acquired a parcel of land in Quezon City. from PNB for the corporation. However, he was required by the bank to sign
On June 1, 1990, when Angelina was away in Baguio, Rene sold the said lot to a Continuing Surety Agreement to secure the repayment of the loan. The
Marcelo. Is the sale void or voidable? (2%) corporation failed to pay the loan, and the bank obtained a judgment against
SUGGESTED ANSWER: The sale is void. Since the sale was it and Victorino, jointly and severally. To enforce the judgment, the sheriff
executed in 1990, the Family Code is the law applicable. Under Article levied on a farm owned by the conjugal partnership of Victorino and his wife
124 of the FC, the sale of a conjugal property by a spouse without the Elsa. Is the levy proper or not? (3%)
consent of the other is void. SUGGESTED ANSWER: The levy is not proper there being no
ALTERNATIVE ANSWER: The sale is voidable. The provisions of showing that the surety agreement executed by the husband
the Family Code may apply retroactively but only if such application redounded to the benefit of the family. An obligation contracted by
will not impair vested rights. When Rene and Angelina got married in the husband alone is chargeable against the conjugal partnership
1980, the law that governed their property relations was the New only when it was contracted for the benefit of the family. When the
Civil Code. Under the NCC, as interpreted by the Supreme Court in obligation was contracted on behalf of the family business the law
Heirs of Felipe v. Aldon, 100 SCRA 628 and reiterated in Heirs of presumes that such obligation will redound to the benefit of the
Ayuste v. Malabonga, G.R No, 118784, 2 September 1999, the sale family. However, when the obligation was to guarantee the debt of a
executed by the husband without the consent of the wife is voidable. third party, as in the problem, the obligation is presumed for the
The husband has already acquired a vested right on the voidable benefit of the third party, not the family. Hence, for the obligation
nature of dispositions made without the consent of the wife. Hence, under the surety agreement to be chargeable against the partnership
Article 124 of the Family Code which makes the sale void does not it must be proven that the family was benefited and that the benefit
apply. was a direct result of such agreement, (Ayala Investment v. Ching,
286 SCRA 272)

136
 Property Relations; Unions without Marriage
For five years since 1989, Tony, a bank Vice-president, and Susan, an
entertainer, lived together as husband and wife without the benefit of
marriage although they were capacitated to many each other. Since Tony's
salary was more than enough for their needs, Susan stopped working and
merely "kept house". During that period, Tony was able to buy a lot and house
in a plush subdivision. However, after five years, Tony and Susan decided to
separate.
a) Who will be entitled to the house and lot? (3%)
SUGGESTED ANSWER: Tony and Susan are entitled to the house
and lot as coowners in equal shares. Under Article 147 of the Family
Code, when a man and a woman who are capacitated to marry each
other lived exclusively with each other as husband and wife, the
property acquired during their cohabitation are presumed to have
been obtained by their joint efforts, work or industry and shall be
owned by them in equal shares. This is true even though the efforts
of one of them consisted merely in his or her care and maintenance
of the family and of the household.
b) Would it make any difference if Tony could not marry Susan because
he was previously married to Alice from whom he is legally separated? (2%)
SUGGESTED ANSWER: Yes, it would make a difference. Under
Article 148 of the Family Code, when the parties to the cohabitation
could not marry each other because of an impediment, only those
properties acquired by both of them through their actual joint
contribution of money, property, or Industry shall be owned by them
in common in proportion to their respective contributions. The
efforts of one of the parties in maintaining the family and household
are not considered adequate contribution in the acquisition of the
properties. Since Susan did not contribute to the acquisition of the
house and lot, she has no share therein. If Tony cohabited with Susan
after his legal separation from Alice, the house and lot is his exclusive
property. If he cohabited with Susan before his legal separation from
Alice, the house and lot belong to his community or partnership with
Alice.

137
SUCCESSION The institution of Baldo, which applies only to the free portion, will
Disinheritance; Ineffective; Preterition be respected. In sum, the estate of Lamberto shall be distributed as
In his last will and testament, Lamberto 1) disinherits his daughter Wilma follows:
because "she is disrespectful towards me and raises her voice talking to me",
2) omits entirely his spouse Elvira, 3) leaves a legacy of P100,000.00 to his Heir Legitime Legacy Institution TOTAL__
Baldo 500,000 200.000 700,000_
mistress Rosa and P50,000.00 to his driver Ernie and 4) institutes his son Elvira 250,000 250,000_
Baldo as his sole heir. How will you distribute his estate of P1,000,000.00? Ernie 50,000 50,000_____________________________
TOTAL 750,000 50,000 200,000 1,000,000
(5%)

SUGGESTED ANSWER: The disinheritance of Wilma was ALTERNATIVE ANSWER: Same answer as the first Alternative
ineffective because the ground relied upon by the testator does not Answer except as to distribution. Justice Jurado solved this problem
constitute maltreatment under Article 919(6) of the New Civil Code.
differently. In his opinion, the legitime of the heir who was
Hence, the testamentary provisions in the will shall be annulled but
disinherited is distributed among the other compulsory heirs in
only to the extent that her legitime was impaired.
proportion to their respective legitimes, while his share in the
The total omission of Elvira does not constitute preterition
intestate portion. If any, is distributed among the other legal heirs by
because she is not a compulsory heir in the direct line. Only
accretion under Article 1018 of the NCC in proportion to their
compulsory heirs in the direct line may be the subject of preterition.
respective intestate shares. In sum the distribution shall be as
Not having been preterited, she will be entitled only to her legitime.
follows:
The legacy in favor of Rosa is void under Article 1028 for being in

consideration of her adulterous relation with the testator. She is, Heir Legitime Dis’n of Wilma’s Legitime Legacy Institution TOTAL
therefore, disqualified to receive the legacy of 100,000 pesos. The Baldo 250,0000
Wilma
125,000
(250.000)




200,000

575,000



legacy of 50,000 pesos in favor of Ernie is not inofficious not having Elvira 250,000 125.000 375.000
Ernie 50,000 50,000_
exceeded the free portion. Hence, he shall be entitled to receive it. TOTAL 500,000 250,000 50,000 200,000 1,000,000
The institution of Baldo, which applies only to the free portion,
shall be respected. In sum, the estate of Lamberto will be distributed
as follows:
Baldo-----------------450,000
Wilma---------------250,000
Elvira-----------------250,000
Ernie-----------------50,000 1,000,000

ALTERNATIVE ANSWER: The disinheritance of Wilma was
effective because disrespect of, and raising of voice to, her father
constitute maltreatment under Article 919(6) of the New Civil Code.
She is, therefore, not entitled to inherit anything. Her inheritance will
go to the other legal heirs. The total omission of Elvira is not
preterition because she is not a compulsory heir in the direct line. She
will receive only her legitime. The legacy in favor of Rosa is void under
Article 1028 for being in consideration of her adulterous relation
with the testator. She is, therefore, disqualified to receive the legacy.
Ernie will receive the legacy in his favor because it is not inofficious.

138
 Intestate Succession
Eugenio died without issue, leaving several parcels of land in Bataan. He Wills; Joint Wills
was survived by Antonio, his legitimate brother; Martina, the only daughter Manuel, a Filipino, and his American wife Eleanor, executed a Joint Will
of his predeceased sister Mercedes; and five legitimate children of Joaquin, in Boston, Massachusetts when they were residing in said city. The law of
another predeceased brother. Shortly after Eugenio's death, Antonio also Massachusetts allows the execution of joint wills. Shortly thereafter, Eleanor
died, leaving three legitimate children. Subsequently, Martina, the children died. Can the said Will be probated in the Philippines for the settlement of
of Joaquin and the children of Antonio executed an extrajudicial settlement her estate? (3%)
of the estate of Eugenio, dividing it among themselves. The succeeding year, SUGGESTED ANSWER: Yes, the will may be probated in the
a petition to annul the extrajudicial settlement was filed by Antero, an Philippines insofar as the estate of Eleanor is concerned. While the
illegitimate son of Antonio, who claims he is entitled to share in the estate of Civil Code prohibits the execution of Joint wills here and abroad, such
Eugenio. The defendants filed a motion to dismiss on the ground that Antero prohibition applies only to Filipinos. Hence, the joint will which is
is barred by Article 992 of the Civil Code from inheriting from the legitimate valid where executed is valid in the Philippines but only with respect
brother of his father. How will you resolve the motion? (5%) to Eleanor. Under Article 819, it is void with respect to Manuel whose
SUGGESTED ANSWER: The motion to dismiss should be granted. joint will remains void in the Philippines despite being valid where
Article 992 does not apply. Antero is not claiming any inheritance executed.
from Eugenio. He is claiming his share in the inheritance of his father ALTERNATIVE ANSWER: The will cannot be probated in the
consisting of his father's share in the inheritance of Eugenio (Dela Philippines, even though valid where executed, because it is
Merced v. Dela Merced, Gr No. 126707, 25 February 1999). prohibited under Article 818 of the Civil Code and declared void
ALTERNATIVE ANSWER: It depends. If Antero was not under Article 819, The prohibition should apply even to the American
acknowledged by Antonio, the motion to dismiss should be granted wife because the Joint will is offensive to public policy. Moreover, it
because Antero is not a legal heir of Antonio. If Antero was is a single juridical act which cannot be valid as to one testator and
acknowledged, the motion should be denied because Article 992 is void as to the other.
not applicable. This is because Antero is claiming his inheritance from
his illegitimate father, not from Eugenio.

139
PROPERTY building being an accession thereto. However, Pedro who is entitled
Builder; Good Faith vs. Bad Faith to retain the building is also entitled to retain the rentals. He,
In good faith, Pedro constructed a five-door commercial building on the however, shall apply the rentals to the indemnity payable to him after
land of Pablo who was also in good faith. When Pablo discovered the deducting reasonable cost of repair and maintenance.
construction, he opted to appropriate the building by paying Pedro the cost
thereof. However, Pedro insists that he should be paid the current market ALTERNATIVE ANSWER: Pablo is entitled to the rentals. Pedro
value of the building, which was much higher because of inflation. became a possessor in bad faith from the time he learned that the
1) Who is correct Pedro or Pablo? (1%) land belongs to Pablo. As such, he loses his right to the building,
SUGGESTED ANSWER: Pablo is correct. Under Article 448 of the including the fruits thereof, except the right of retention.
New Civil Code in relation to Article 546, the builder in good faith is
entitled to a refund of the necessary and useful expenses incurred by
him, or the increase in value which the land may have acquired by
reason of the improvement, at the option of the landowner. The
builder is entitled to a refund of the expenses he incurred, and not to
the market value of the improvement
The case of Pecson v. CA, 244 SCRA 407, is not applicable to the
problem. In the Pecson case, the builder was the owner of the land
who later lost the property at a public sale due to non-payment of
taxes. The Court ruled that Article 448 does not apply to the case
where the owner of the land is the builder but who later lost the land;
not being applicable, the indemnity that should be paid to the buyer
must be the fair market value of the building and not just the cost of
construction thereof. The Court opined in that case that to do
otherwise would unjustly enrich the new owner of the land.

ALTERNATIVE ANSWER: Pedro is correct. In Pecson vs. CA, it was
held that Article 546 of the New Civil Code does not specifically state
how the value of useful improvements should be determined in fixing
the amount of indemnity that the owner of the land should pay to
the builder in good faith. Since the objective of the law is to adjust
the rights of the parties in such manner as "to administer complete
justice to both of them in such a way as neither one nor the other
may enrich himself of that which does not belong to him", the Court
ruled that the basis of reimbursement should be the fair market value
of the building.
2) In the meantime, that Pedro is not yet paid, who is entitled to the
rentals of the building, Pedro or Pablo? (1%)

SUGGESTED ANSWER: Pablo is entitled to the rentals of the
building. As the owner of the land, Pablo is also the owner of the

140
 Builder; Good Faith vs. Bad Faith; Accession Easements; Right of Way
a) Demetrio knew that a piece of land bordering the beach belonged to The coconut farm of Federico is surrounded by the lands of Romulo.
Ernesto. However, since the latter was studying in Europe and no one was Federico seeks a right of way through a portion of the land of Romulo to bring
taking care of the land, Demetrio occupied the same and constructed thereon his coconut products to the market. He has chosen a point where he will pass
nipa sheds with tables and benches which he rented out to people who want through a housing project of Romulo. The latter wants him to pass another
to have a picnic by the beach. When Ernesto returned, he demanded the way which is one kilometer longer. Who should prevail? (5%)
return of the land. Demetrio agreed to do so after he has removed the nipa SUGGESTED ANSWER: Romulo will prevail. Under Article 650 of
sheds. Ernesto refused to let Demetrio remove the nipa sheds on the ground the New Civil Code, the easement of right of way shall be established
that these already belonged to him by right of accession. Who is correct? (3%) at the point least prejudicial to the servient estate and where the
distance from the dominant estate to a public highway is the
SUGGESTED ANSWER: Ernesto is correct, Demetrio is a builder in shortest. In case of conflict, the criterion of least prejudice prevails
bad faith because he knew beforehand that the land belonged to over the criterion of shortest distance. Since the route chosen by
Ernesto, under Article 449 of the New Civil Code, one who builds on Federico will prejudice the housing project of Romulo, Romulo has
the land of another loses what is built without right to indemnity. the right to demand that Federico pass another way even though it
Ernesto becomes the owner of the nipa sheds by right of accession. will be longer.
Hence, Ernesto is well within his right in refusing to allow the removal
of the nipa sheds.

141
 Ownership; Co-Ownership; Prescription Ownership; Co-Ownership; Redemption
In 1955, Ramon and his sister Rosario inherited a parcel of land in Albay Ambrosio died, leaving his three daughters, Belen, Rosario and Sylvia a
from their parents. Since Rosario was gainfully employed in Manila, she left hacienda which was mortgaged to the Philippine National Bank due to the
Ramon alone to possess and cultivate the land. However, Ramon never failure of the daughters to pay the bank, the latter foreclosed the mortgage
shared the harvest with Rosario and was even able to sell one-half of the land and the hacienda was sold to it as the highest bidder. Six months later, Sylvia
in 1985 by claiming to be the sole heir of his parents. Having reached won the grand prize at the lotto and used part of it to redeem the hacienda
retirement age in 1990 Rosario returned to the province and upon learning from the bank. Thereafter, she took possession of the hacienda and refused
what had transpired, demanded that the remaining half of the land be given to share its fruits with her sisters, contending that it was owned exclusively
to her as her share. Ramon opposed, asserting that he has already acquired by her, having bought it from the bank with her own money. Is she correct or
ownership of the land by prescription, and that Rosario is barred by laches not? (3%)
from demanding partition and reconveyance. Decide the conflicting claims. SUGGESTED ANSWER: Sylvia is not correct. The 3 daughters are
(5%) the co-owners of the hacienda being the only heirs of Ambrosio.
SUGGESTED ANSWER: Ramon is wrong on both counts: When the property was foreclosed, the right of redemption belongs
prescription and laches. His possession as co-owner did not give rise also to the 3 daughters. When Sylvia redeemed the entire property
to acquisitive prescription. Possession by a co-owner is deemed not before the lapse of the redemption period, she also exercised the
adverse to the other co-owners but is, on the contrary, deemed right of redemption of her co-owners on their behalf. As such she is
beneficial to them (Pongon v. GA, 166 SCRA 375). Ramon's possession holding the shares of her two sisters in the property, and all the fruits
will become adverse only when he has repudiated the co-ownership corresponding thereto, in trust for them. Redemption by one co-
and such repudiation was made known to Rosario. Assuming that the owner inures to the benefit of all (Adille v. CA.157 SCRA 455). Sylvia,
sale in 1985 where Ramon claimed he was the sole heir of his parents however, is entitled to be reimbursed the shares of her two sisters in
amounted to a repudiation of the co-ownership, the prescriptive the redemption price.
period began to run only from that time. Not more than 30 years
having lapsed since then, the claim of Rosario has not as yet
prescribed. The claim of laches is not also meritorious. Until the
repudiation of the co-ownership was made known to the other co-
owners, no right has been violated for the said co-owners to
vindicate. Mere delay in vindicating the right, standing alone, does
not constitute laches.
ALTERNATIVE ANSWER: Ramon has acquired the land by
acquisitive prescription, and because of laches on the part of Rosario.
Ramon's possession of the land was adverse because he asserted sole
ownership thereof and never shared the harvest therefrom. His
adverse possession having been continuous and uninterrupted for
more than 30 years, Ramon has acquired the land by prescription.
Rosario is also guilty of laches not having asserted her right to the
harvest for more than 40 years.

142
 Sower; Good Faith/ Bad Faith LAND TITLES
Felix cultivated a parcel of land and planted it to sugar cane, believing it Foreshore Lands
to be his own. When the crop was eight months old, and harvestable after Regina has been leasing foreshore land from the Bureau of Fisheries and
two more months, a resurvey of the land showed that it really belonged to Aquatic Resources for the past 15 years. Recently, she learned that Jorge was
Fred. What are the options available to Fred? (2%) able to obtain a free patent from the Bureau of Agriculture, covering the same
SUGGESTED ANSWER: As to the pending crops planted by Felix land, on the basis of a certification by the District Forester that the same is
in good faith, Fred has the option of allowing Felix to continue the already "alienable and disposable". Moreover, Jorge had already registered
cultivation and to harvest the crops, or to continue the cultivation the patent with the Register of Deeds of the province, and he was issued an
and harvest the crops himself. In the latter option, however, Felix Original Certificate of Title for the same. Regina filed an action for annulment
shall have the right to a part of the expenses of cultivation and to a of Jorge's title on the ground that it was obtained fraudulently. Will the action
part of the net harvest, both in proportion to the time of possession. prosper? (2%)
(Art. 545 NCC), SUGGESTED ANSWER: An action for the annulment of Jorge's
ALTERNATIVE ANSWER: Since sugarcane is not a perennial crop. Original Certificate of Title will prosper on the following grounds:
Felix is considered a sower in good faith. Being so, Art. 448 applies. (1) Under Chapter IX of C .A, No. 141, otherwise known as the Public
The options available to Fred are: (a) to appropriate the crop after Land Act, foreshore lands are disposable for residential, commercial,
paying Felix the indemnity under Art. 546, or (b) to require Felix to industrial, or similar productive purposes, and only by lease when not
pay rent. needed by the government for public service.
(2) If the land is suited or actually used for fishpond or aquaculture
purposes, it comes under the Jurisdiction of the Bureau of Fisheries and
Aquatic Resources (BFAR) and can only be acquired by lease. (P.D. 705)
(3) Free Patent is a mode of concession under Section 41, Chapter VII
of the Public Land Act, which is applicable only for agricultural lands.
(4) The certificate of the district forester that the land is already
"alienable and disposable" simply means that the land is no longer
needed for forest purposes, but the Bureau of Lands could no longer
dispose of it by free patent because it is already covered by a lease
contract between BFAR and Regina. That contract must be respected.
(5) The free patent of Jorge is highly irregular and void ab initio, not
only because the Bureau has no statutory authority to issue a free patent
over a foreshore area, but also because of the false statements made in
his sworn application that he has occupied and cultivated the land since
July 4, 1945, as required by the free patent law. Under Section 91 of the
Public Land Act, any patent concession or title obtained thru false
representation is void ab initio. In cases of this nature, it is the
government that shall institute annulment proceedings considering that
the suit carries with it a prayer for the reversion of the land to the state.
However, Regina is a party in interest and the case will prosper because
she has a lease contract for the same land with the government.

143
 Fraud; Procurement of Patent; Effect Prescription & Laches; Elements of Laches
In 1979, Nestor applied for and was granted a Free Patent over a parcel In an action brought to collect a sum of money based on a surety
of agricultural land with an area of 30 hectares, located in General Santos agreement, the defense of laches was raised as the claim was filed more than
City. He presented the Free Patent to the Register of Deeds, and he was seven years from the maturity of the obligation. However, the action was
issued a corresponding Original Certificate of Title (OCT) No. 375, brought within the ten-year prescriptive period provided by law wherein
Subsequently, Nestor sold the land to Eddie. The deed of sale was submitted actions based on written contracts can be instituted. a) Will the defense
to the Register of Deeds and on the basis thereof, OCT No, 375 was cancelled prosper? Reason. (
and Transfer Certificate of Title (TCT) No. 4576 was issued in the name of SUGGESTED ANSWER: No, the defense will not prosper. The
Eddie. In 1986, the Director of Lands filed a complaint for annulment of OCT problem did not give facts from which laches may be inferred. Mere
No, 375 and TCT No. 4576 on the ground that Nestor obtained the Free Patent delay in filing an action, standing alone, does not constitute laches
through fraud. Eddie filed a motion to dismiss on the ground that he was an (Agra v. PNB. 309 SCRA 509).
innocent purchaser for value and in good faith and as such, he has acquired a
title to the property which is valid, unassailable and indefeasible. Decide the 3%) b) What are the essential elements of laches? (2%)
motion. (5%) SUGGESTED ANSWER: b) The four basic elements of laches are;
SUGGESTED ANSWER: The motion of Nestor to dismiss the (1) conduct on the part of the defendant or of one under whom he
complaint for annulment of O.C.T. No. 375 and T.C.T. No. 4576 should claims, giving rise to the situation of which complainant seeks a
be denied for the following reasons: remedy; (2) delay in asserting the complainant's rights, the
1) Eddie cannot claim protection as an innocent purchaser for complainant having had knowledge or notice of the defendant's
value nor can he interpose the defense of indefeasibility of his title, conduct and having been afforded an opportunity to institute suit; (3)
because his TCT is rooted on a void title. Under Section 91 of CA No. lack of knowledge on the part of the defendant that the complainant
141, as amended, otherwise known as the Public Land Act, would assert the right on which he bases his suit; and (4) injury or
statements of material facts in the applications for public land must prejudice to the defendant in the event relief is accorded to the
be under oath. Section 91 of the same act provides that such complainant, or the suit is not held to be barred.
statements shall be considered as essential conditions and parts of
the concession, title, or permit issued, any false statement therein,
or omission of facts shall ipso facto produce the cancellation of the
concession. The patent issued to Nestor in this case is void ab initio
not only because it was obtained by fraud but also because it covers
30 hectares which is far beyond the maximum of 24 hectares
provided by the free patent law.
2) The government can seek annulment of the original and
transfer certificates of title and the reversion of the land to the state.
Eddie's defense is untenable. The protection afforded by the Torrens
System to an innocent purchaser for value can be availed of only if
the land has been titled thru judicial proceedings where the issue of
fraud becomes academic after the lapse of one (1) year from the
issuance of the decree of registration. In public land grants, the action
of the government to annul a title fraudulently obtained does not
prescribe such action and will not be barred by the transfer of the
title to an innocent purchaser for value.

144
 Reclamation of Foreshore Lands; Limitations
Republic Act 1899 authorizes municipalities and chartered cities to
reclaim foreshore lands bordering them and to construct thereon adequate
docking and harbor facilities. Pursuant thereto, the City of Cavite entered into
an agreement with the Fil-Estate Realty Company, authorizing the latter to
reclaim 300 hectares of land from the sea bordering the city, with 30% of the
land to be reclaimed to be owned by Fil-Estate as compensation for its
services. The Solicitor General questioned the validity of the agreement on
the ground that it will mean reclaiming land under the sea which is beyond
the commerce of man. The City replies that this is authorized by RA. 1899
because it authorizes the construction of docks and harbors. Who is correct?
(3%)
SUGGESTED ANSWER: The Solicitor General is correct. The
authority of the City of Cavite under RA 1899 to reclaim land is limited
to foreshore lands. The Act did not authorize it to reclaim land from
the sea. "The reclamation being unauthorized, the City of Cavite did
not acquire ownership over the reclaimed land. Not being the owner,
it could not have conveyed any portion thereof to the contractor.
ALTERNATIVE ANSWER: It depends. If the reclamation of the
land from the sea is necessary in the construction of the docks and
the harbors, the City of Cavite is correct. Otherwise, it is not. Since RA
1899 authorized the city to construct docks and harbors, all works
that are necessary for such construction are deemed authorized.
Including the reclamation of land from the sea. The reclamation being
authorized, the city is the owner of the reclaimed land and it may
convey a portion thereof as payment for the services of the
contractor.
ALTERNATIVE ANSWER: On the assumption that the reclamation
contract was entered into before RA 1899 was repealed by PD 3-A,
the City of Cavite is correct. Lands under the sea are "beyond the
commerce of man" in the sense that they are not susceptible of
private appropriation, ownership or alienation. The contract in
question merely calls for the reclamation of 300 hectares of land
within the coastal waters of the city. Per se, it does not vest, alienate
or transfer ownership of land under the sea. The city merely engaged
the services of Fil-Estate to reclaim the land for the city.

145
 2002 BAR QUESTIONS the period of five years and there is no legal impediment. There must no
legal impediment ONLY AT THE TIME OF THE SOLEMNIZATION OF THE

MARRIAGE, and not the whole five years period. This is clearly the intent of

the code framers (see Minutes of the 150th joint Civil Code of the Family
Question No 1:
Law Committees held on August 9, 1986). Also, in Manzano v. Sanchez, AM
On May 1, 1978 Facundo married Petra, by whom he had a son Sotero.
NO. MT –00-129, March 8, 2001, the Supreme Court said that, as one of the
Petra died on July 1, 1996, while Facundo died on January 1, 2002. Before his
requisites for the exception to apply, there must be no legal impediment at
demise, Facundo had married, on July 1, 2002, Quercia. Having lived together
the time of the marriage. The Supreme Court did not say that the legal
as husband and wife since July 1, 1990, Facundo and Quercia did not secure
impediment must exist all throughout the five-year period.
a marriage license but executed the requisite affidavit for the purpose.
This is different from the case of Nināl v. Bayadog, (328 SCRA 122
To ensure that his inheritance rights are not adversely affected by his
[2000]). In the said case, the situation occurred during the regime of the
father second marriage, Sotero now brings a suit to seek a declaration of the
new Civil Code where Article 76 thereof clearly provides that during the five-
nullity of the marriage of Facundo and Quercia, grounded on the absence of
year cohabitation, the parties must be unmarried. This is not so anymore in
a valid marriage license. Quercia contends that there was no need for a
the Family Code. The Change in the Family Code is significant. If the second
marriage license in view for her having lived continuously with Facundo for
marriage occurred before the effectivity of the Family Code, the answer
five years before their marriage and that has Sotero has no legal personality
would that be that the marriage is void.
to seek a declaration of nullity of the marriage since Facundo is now

deceased.
Legal Personality to Seek Declaration of Nullity

B. Does Sotero have the personality to seek the declaration of nullity of

the marriage, especially now that Facundo is already deceased? Explain. (3%)
Family Code; Requisites of Marriage; Marriage License

A. Is the marriage of Facundo and Quercia valid, despite the absence of a
Answer:
marriage license? Explain. (2%)
A void marriage may be questioned by any interested party in any

proceeding where the resolution of the issue is material. Being a
Answer:
compulsory heir, Soterro has the personality to question the validity of the
The marriage with Quercia is void. The exemption from the requirement
marriage of Facundo and Quercia. Otherwise, his participation in the estate
of a marriage license under Art. 34, Family Code, requires that the man and
on Facundo would be affected. (Ninãl v. Bayadog, 328 SCRA 122 [2000]).
woman must have lived together as husband and wife for at least five years

and without any legal impediment to marry each other during those five

years. The cohabitation of Facundo and Quercia for six years from 1990 to
July 1, 1996 when Petra died was one with a legal impediment hence, not
in compliance with the requirement of law. On other hand, the cohabitation
thereafter until the marriage on July 1, 2000, although free from legal
impediment, did not meet the 5-year cohabitation requirement.

Alternative Answer:
The marriage of Facundo and Quercia is VALID. The second marriage
was solemnized on July 1, 2000, when the Family code was already
affective. The family code took effect on August 3, 1988. Under the Family
Code, no marriage license is required if the parties have been cohabiting for

146
 Question No. 2: Family Code; Void Marriages; Psychological Incpacity Question No. 3: Wills; Conflict of laws
A. Give a brief definition or explanation of the term “psychological Felipe and Felisa, both Filipino citizens, were married in Malolos, Bulacan
incapacity” as a ground for the declaration of nullity of a marriage. (2%) on June 1, 1950. In 1960 Felipe went to the United States, becoming a U.S.
citizen in 1975. In 1980 the obtained a divorce from Felisa, who was duly
Answer: notified of the proceedings. The divorce decree became final under California
“Psychological incapacity” is a mental disorder of the most serious type Law. Coming back to the Philippines in 1982, Felipe married Sagundina, a
showing the incapability of one or both spouses to comply the essential Filipino Citizen. In 2001, Filipe, then domiciled in Los Angeles, California, died,
marital obligations of love, respect, cohabitation, mutual help and support, leaving one child by Felisa, and another one by Sagundina. He left a will which
trust and commitment. It must be characterized by Juridical antecedence, he left his estate to Sagundina and his two children and nothing to Felisa.
gravity and incurability and its root causes must be clinically identified or Sagundina files a petition for the probate of Felipe’s will. Felisa
examined. (Santos v. CA, 240 SCRA 20 [1995]). questions the intrinsic validity of the will, arguing that her marriage to Felipe
subsisted despite the divorce obtained by Felipe because said divorce is not
recognized in the Philippines. For this reason, she claims that the properties
B. If existing at the inception of marriage, would the state of being of and that Sagundina has no successional rights.
unsound mind or the concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism be considered indicia of psychological A. Is the divorce secured by Felipe in California recognizable and valid in
incapacity? Explain. (2%). the Philippines? How does it affect Felipe’s marriage to Felisa? Explain. (2%).

Answer: Answer:
In the case of Santos v. Court of Appeals, 240 SCRA 20 (1995), The (1.) The divorce secured by Felipe in California is recognizable and valid
Supreme Court held that being of unsound mind, drug addiction, habitual in the Philippines because he was no longer a Filipino at that time he
alcoholism, lesbianism or homosexuality may be indicia of psychological secured it, Aliens may obtain divorces abroad which may be recognized in
incapacity, depending on the degree of severity of the disorder. However, the Philippines provided that they are valid according to their national law
the concealment of drug addiction, habitual alcoholism, lesbianism or (Van Dorn v. Romillo, Jr., 139 SCRA 139 [1985]; Quita v. Court of Appeals,
homosexuality is a ground of annulment of marriage. 300 SCRA 406 [1998]; Llorente v. Court of Appeals, 345 SCRA 595 [2000]).

C. If drug addiction, habitual alcoholism, lesbianism or homosexuality (2). With respect to Felipe the divorce is valid, but with respect to Felisa
should occur only the marriage, would this constitute grounds for a it is not. The divorce will not capacitate Felisa to remarry because she and
declaration of nullity or for legal separation, or would they render the Felipe were both Filipinos at the time of their marriage. However, in DOJ
marriage voidable? (1%). Opinion No. 134 series of 1993, Felisa is allowed to remarry because the
injustice sought to be corrected by Article 26 also obtains in her case.
Answer:
In accordance with law, if drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur only during the marriage, they: B. What law governs the formalities of the will? Explain. (1%)
1. Will not constitute as ground for declaration of nullity (Art. 36, Family
Code);
2. Will constitute as grounds for legal separation (Art. 56, FC) and Answer:
3. will not constitute as grounds to render the marriage voidable The foreigner who executes his will in the Philippines may observed the
(Art.45and 46, FC) formalities described in:

147
 1. The Law of the country of which he is a citizen under Article 817 of Question No. 6: Property; Nuisance
the New Civil Code, or Lauro owns an agricultural land planted mostly with fruit trees. Hernando
2. the law of the Philippines being the law of the place of execution owns an adjacent land devoted to his piggery business, which is two (2)
under Article 17 of the New Civil Code. meters higher in elevation. Although Hernando has constructed a waste
disposal lagoon for his piggery, it is inadequate to contain the waste water
C. Will Philippine law govern the intrinsic validity of the will? Explain. (2%) containing pig manure, and it often overflows and inundates Lauro’s
plantation. This has increased the acidity of the soil in the plantation, causing
Answer: the trees to wither and die. Lauro sues for damages caused to his plantation.
Philippine law will not govern the intrinsic validity of the will. Article 16 Hernando invokes his right to the benefit of a natural easement in favor of his
of the New Civil Code provides that intrinsic validity of testamentary higher estate, which imposes upon the lower estate of Lauro the obligation
provisions shall be governed by the National Law of the person whose to receive the waters descending from the higher estate. Is Hernando
succession is under consideration. California law will govern the intrinsic correct?
validity of the will.
Answer:
Hernando is wrong. It is true that Lauro’s land is burdened with the
natural easement to accept or receive the water which naturally and
without interruption of man descends from a higher estate to a lower
estate. However, Hernando has constructed a waste disposal lagoon for his
piggery and it is this waste water that flows downward to Lauro’s land.
Hernando has, thus, interrupted the flow of water and has created and is
maintaining a nuisance. Under Act. 697 NCC, abatement of a nuisance does
not preclude recovery of damages by Lauro even for the past existence of a
nuisance. The claim for damages may also be premised in Art. 2191 (4) NCC.

Another Answer:
Hernando is not correct. Article 637 of the New Civil Code provides that
the owner of the higher estate cannot make works which will increase the
burden on the servient estate. (Remman Enterprises, Inc. v. CA, 330 SCRA
145 [2000]). The owner of the higher estate may be compelled to pay
damages to the owner of the lower estate.

148
 Question No. 8: Succession; Testate Succession; Institution of Heirs;
Substitution of Heirs
By virtue of a Codicil appended to his will, Theodore devised to Divino a
tract of sugar land, with the obligation on the part of Divino or his heirs to 2001 BAR QUESTIONS
deliver to Betina a specified volume of sugar per harvest during Betina’s
lifetime. It is also stated in the Codicil that in the event the obligation is not
fulfilled, Betina should immediately seize the property from Divino or latter’s
heirs and turn it over to Theodore’s compulsory heirs. Divino failed to fulfill Q01
the obligation under the Codicil. Betina brings suit against Divino for the (Succession; Applicable Laws)
reversion of the tract of land. Alex was born a Filipino but was a naturalized Canadian citizen at the
time of his death on December 25, 1998. He left behind a last will and
A. Distinguish between modal institution and substation of heirs. testament in which he bequeathed all his properties, real and personal,
in the Philippines to his acknowledged illegitimate Fillpina daughter and
Answer: nothing to his two legitimate Filipino sons. The sons sought the
A modal institution is the institution of an heir made for a certain annulment of the last will and testament on the ground that it deprived
purpose or cause (Arts. 871 and 882, NCC). Substitution is the appointment them of their legitimes but the daughter was able to prove that there were
of another heir so that he may enter into the inheritance in default of the no compulsory heirs or legitimes under Canadian law. Who should prevail?
heir originality instituted. (Art. 857, NCC). Why? (5%)

B. Distinguish between simple and fideicommissary substitution of heirs. ANSWER:
The daughter should prevail because Article 16 of the New Civil Code
Answer: provides that intestate and testamentary succession shall be governed by
In a simple substitution of heirs, the testator designates one or more the national law of the person whose succession is under consideration.
persons to substitute the heirs instituted in case such heir or heirs should
die before him, or should not wish or should be incapacitated to accept the
inheritance. In a fideicommissary substitution, the testator institutes a first
heir and charges him to preserve and transmit the whole or part of the
inheritance to a second heir. In a simple substitution, only one heir inherits.
In a fideicommissary substitution, both the first and second heirs inherit.
(Art. 859 and 869, NCC)

C. Does Betina have a cause of action against Divino? Explain.

Answer:
Betina has a cause of action against Divino. This is a case of a
testamentary disposition subject to a mode and the will itself provides for
the consequence if the mode is not complied with. To enforce the mode,
the will itself gives Betina the right to compel the return of the property to
the heirs of Theodore. (Rabadilla v. Conscoluella, 334 SCRA 522 [2000] GR
113725, 29 June 2000).

149
 Q02 Q03
(Persons and Family Relations; Adoption) (Property; Builder in Good Faith v. Bad Faith; Presumption)
A German couple filed a petition for adoption of a minor Filipino child Mike built a house on his lot in Pasay City. Two years later, a survey
with the Regional Trial Court of Makati under the provisions of the Child disclosed that a portion of the building actually stood on the neighboring
and Youth Welfare Code which allowed aliens to adopt. Before the petition land of Jose, to the extent of 40 square meters. Jose claims that Mike is a
could be heard, the Family Code, which repealed the Child and Youth builder in bad faith because he should know the boundaries of his lot, and
Welfare Code, came into effect. Consequently, the Solicitor General filed demands that the portion of the house which encroached on his land should
a motion to dismiss the petition, on the ground that the Family Code be destroyed or removed. Mike replies that he is a builder in good faith and
prohibits aliens from adopting. If you offers to buy the land occupied by the building instead.
were the judge, how will you rule on the motion? (5%)
1. Is Mike a builder in good faith or bad faith? Why? (3%)
ANSWER:
The motion to dismiss the petition for adoption should be denied. The ANSWER:
law that should govern the action is the law in force at the time of filing Yes, Mike is a builder in good faith. There is no showing that when he
of the petition. At that time, it was the Child and Youth Welfare Code that built his house, he knew that a portion thereof encroached on Jose's
was in effect, not the Family Code. Petitioners have already acquired a vested lot. Unless one is versed in the science of surveying, he cannot
right on their qualification to adopt which cannot be taken away by the Family determine the precise boundaries or location of his property by
Code. (Republic v. Miller G.R. No. 125932, April 21, 1999, citing Republic v. merely examining his title. In the absence of contrary proof, the law
Court of Appeals, 205 SCRA 356) presumes that the encroachment was done in good faith
[Technogas Phils, v. CA, 268 SCRA 5, 15 (1997)].
ALTERNATIVE ANSWER:
The motion has to be granted. The new law shall govern their qualification ALTERNATIVE ANSWER:
to adopt and under the new law, the German couple is disqualified Mike cannot be considered a builder in good faith because he
from adopting. They cannot claim that they have already acquired a vested built his house without first determining the corners and
right because adoption is not a right but a mere privilege. No one boundaries of his lot to make sure that his construction was
acquires a vested right on a privilege. within the perimeter of his property. He could have done this with
the help of a geodetic engineer as an ordinary prudent and
[Note: If the examinee based his answer on the current law, RA 8552, his reasonable man would do under the circumstances.
answer should be considered correct. This question is based on the
repealed provision of the Family Code on Adoption.]
2. Whose preference should be followed? Why? (2%)

ANSWER:
None of the preferences shall be followed. The preference of Mike
cannot prevail because under Article 448 of the Civil Code, it is the
owner of the land who has the option or choice, not the builder.
On the other hand, the option belongs to Jose, he cannot
demand that the portion of the house encroaching on his land
be destroyed or removed because this is not one of the options
given by law to the owner of the land. The owner may choose

150
 between the appropriation of what was built after payment of Q04
indemnity, or to compel the builder to pay for the land if the value of (Property; Accretion; Alluvion)
the land is not considerably more than that of the building. For many years, the Rio Grande river deposited soil along its bank, beside
Otherwise, the builder shall pay rent for the portion of the land the titled land of Jose. In time, such deposit reached an area of one
encroached. thousand square meters. With the permission of Jose, Vicente cultivated
the said area. Ten years later, a big flood occurred in the river and
ALTERNATIVE ANSWER: transferred the 1000 square meters to the opposite bank, beside the land
Jose's preference should be followed. He may have the building of Agustin. The land transferred is now contested by Jose and Agustin as
removed at the expense of Mike, appropriate the building as his own, riparian owners and by Vicente who claims ownership by prescription.
oblige Mike to buy the land and ask for damages in addition to any Who should prevail,? Why? (5%)
of the three options. (Articles 449, 450, 451, CC)
ANSWER:
Jose should prevail. The disputed area, which is an alluvion, belongs by
right of accretion to Jose, the riparian owner (Art. 457 CC). When, as given in
the problem, the very same area" was "transferred" by flood waters to the
opposite bank, it became an avulsion and ownership thereof is retained by
Jose who has two years to remove it (Art. 459, CC). Vicente's claim based on
prescription is baseless since his possession was by mere tolerance of Jose
and, therefore, did not adversely affect Jose's possession and ownership (Art.
537, CC). Inasmuch as his possession is merely that of a holder, he cannot
acquire the disputed area by prescription.

151
 Q05 Q06
(Property; Easement; Right of Way) (Succession; Preterition)
Emma bought a parcel of land from Equitable-PCI Bank, which acquired Because her eldest son Juan had been pestering her for capital to start a
the same from Felisa, the original owner. Thereafter, Emma discovered business, Josefa gave him P100,000. Five years later, Josefa died, leaving a
that Felisa had granted a right of way over the land in favor of the land of last will and testament in which she instituted only her four younger
Georgina, which had no outlet to a public highway, but the easement was children as her sole heirs. At the time of her death, her only properly left
not annotated when the servient estate was registered under the Torrens was P900,000.00 in a bank. Juan opposed the will on the ground of
system. Emma then filed a complaint for cancellation of the right of preterition. How should Josefa's estate be divided among her heirs? State
way, on the ground that it had been extinguished by such failure to briefly the reason(s) for your answer. (5%)
annotate. How would you decide the controversy? (5%)
ANSWER:
ANSWER: There was no preterition of the oldest son because the testatrix donated
The complaint for cancellation of easement of right of way must fail. 100,000 pesos to him. This donation is considered an advance on the son's
The failure to annotate the easement upon the title of the servient estate inheritance. There being no preterition, the institutions in the will shall be
is not among the grounds for extinguishing an easement under Art. 631 respected but the legitime of the oldest son has to be completed if he
of the Civil Code. Under Article 617, easements are inseparable from the received less.
estate to which they actively or passively belong. Once it attaches, it can
only be extinguished under Art. 631, and they exist even if they are not After collating the donation of P100.000 to the remaining property of
stated or annotated as an encumbrance on the Torrens title of the P900,000, the estate of the testatrix is P1,000,000. Of this amount, one-half
servient estate. (II Tolentino 326, 1987 ed.) or P500,000, is the legitime of the legitimate children and it follows that the
legitime of one legitimate child is P100,000. The legitime, therefore, of the
ALTERNATIVE ANSWER: oldest son is P100,000. However, since the donation given him was P100,000,
Under Section 44, PD No. 1529, every registered owner receiving a he has already received in full his legitime and he will not receive anything
certificate of title pursuant to a decree of registration, and every anymore from the decedent. The remaining P900,000, therefore, shall go to
subsequent innocent purchaser for value, shall hold the same free from all the four younger children by institution in the will, to be divided equally
encumbrances except those noted on said certificate. This rule, however, among them. Each will receive P225,000.
admits of exceptions.
ALTERNATIVE ANSWER:
Under Act 496, as amended by Act No. 2011, and Section 4, Act 3621, an Assuming that the donation is valid as to form and substance, Juan cannot
easement if not registered shall remain and shall be held to pass with the land invoke preterition because he actually had received a donation inter vivos
until cutoff or extinguished by the registration of the servient estate. from the testatrix (III Tolentino 188,1992 ed.). He would only have a
However, this provision has been suppressed in Section 44, PD No. 1529. In right to a completion of his legitime under Art. 906 of the Civil Code. The
other words, the registration of the servient estate did not operate to cut-off estate should be divided equally among the five children who will each
or extinguish the right of way. Therefore, the complaint for the cancellation receive P225,000.00 because the total hereditary estate, after collating the
of the right of way should be dismissed. donation to Juan (Art. 1061, CC), would be P1 million. In the actual
distribution of the net estate, Juan gets nothing while his siblings will
get P225,000.00 each.

152
 1999 BAR QUESTIONS Q2
(Succession; Simultaneous Death)

Mr. and Mrs. Cruz, who are childless, met with a serious motor vehicle
Q1
accident with Mr. Cruz at the wheel and Mrs. Cruz seated beside him,
(Persons; Presumptive Personality)
resulting in the instant death of Mr. Cruz. Mrs. Cruz was still alive when help
Elated that her sister who had been married for five years was pregnant
came but she also died on the way to the hospital. The couple acquired
for the first time, Alma donated P100,000 to the unborn child.
properties worth P1 Million during their marriage, which are being claimed
Unfortunately, the baby died one hour after delivery. May Alma recover the
by the parents of both spouses in equal shares. Is the claim of both sets of
P100.000 that she had donated to said baby before it was born considering
parents valid and why? (3%)
that the baby died? Stated otherwise, is the donation valid and binding?

Explain. (5%)
No, the claim of both parents is not valid. When Mr. Cruz died, he was

succeeded by his wife and his parents as his intestate heirs who will share
The donation is valid and binding, being an act favorable to the unborn
his estate equally. His estate was P0.5 Million pesos which is his half share in
child, but only if the baby had an intra-uterine life of not less than 7 months
the absolute community amounting to P1 Million. His wife, will, therefore,
and provided there was due acceptance of the donation by the proper
inherit P0.25 Million and his parents will inherit P0.25 Million.
person representing said child. If the child had less than 7 months of intra-

uterine life, it is not deemed born since it died less than 24 hours following
When Mrs. Cruz died, she was succeeded by her parents as her intestate
its delivery, in which ease the donation never became effective since the
heirs. They will inherit all of her estate consisting of her P0.5 Million half
donee never became a person, birth being determinative of personality.
share in the absolute community and her P0.25 Million inheritance from her

husband, or a total of P0.750 Million.
Alternative Answer:

Even if the baby had an intra-uterine life of more than 7 months and the
In sum, the parents of Mr. Cruz will inherit P250,000 while the parents
donation was properly accepted, it would be void for not having conformed
of Mrs. Cruz will inherit P750,000.
with the proper form. In order to be valid, the donation and acceptance of

personal property exceeding P5,000 should be in writing. (Art. 748 par. 3)
(b) Suppose in the preceding question, both Mr. and Mrs. Cruz were

already dead when help came, so that no-body could say who died ahead

of the other, would your answer be the same to the question as to who are
entitled to the properties of the deceased couple? (2%)

This being a case of succession, in the absence of proof as to the time of
death of each of the spouses, it is presumed they died at the same time and
no transmission of rights from one to the other is deemed to have taken
place. Therefore, each of them is deemed to have an estate valued at
P500,000,00, or one-half of their conjugal property of P1 Million. Their
respective parents will thus inherit the entire P1 Million in equal shares, of
P500,000.00 per set of parents.

153
 Q3 It depends. If the marriage before the notary public is valid under Hong
(Persons; Marriage) Kong Law, the marriage is valid in the Philippines. Otherwise, the marriage
What is the status of the following marriages and why? that is invalid in Hong Kong will be invalid in the Philippines.

a) A marriage between two 19-year olds without parental consent, (2%) Alternative Answer
The marriage is voidable. The consent of the parties to the marriage was If the two Filipinos believed in good faith that the Notary Public is
defective. Being below 21 years old, the consent of the parties is not full authorized to solemnize marriage, then the marriage is valid.
without the consent of their parents. The consent of the parents of the
parties to the marriage is indispensable for its validity. e) A marriage solemnized by a town mayor three towns away from his
jurisdiction, (2%)
b) A marriage between two 21-year olds without parental advice. (2%) Under the Local Government Code, a town mayor may validly solemnize
Between 21-year olds, the marriage is valid despite the absence of a marriage but said law is silent as to the territorial limits for the exercise by
parental advice, because such absence is merely an irregularity affecting a a town mayor of such authority. However, by analogy, with the authority of
formal requisite -- i.e., the marriage license -- and does not affect the members of the Judiciary to solemnize a marriage, it would seem that the
validity of the marriage itself. This is without prejudice to the civil, criminal, mayor did not have the requisite authority to solemnize a marriage outside
or administrative liability of the party responsible therefor. of his territorial jurisdiction. Hence, the marriage is void, unless it was
contracted with either or both parties believing in good faith that the mayor
c) A marriage between two Filipino first cousins in Spain where such had the legal authority to solemnize this particular marriage. (FC 35 par. 2)
marriage is valid. (2%)
By reason of public policy, the marriage between Filipino first cousins is Alternative Answer
void (FC 38, par. 1), and the fact that it is considered a valid marriage in a The marriage is valid. Under the Local Government Code, the authority
foreign country in this case, Spain— does not validate it, being an exception of a mayor to solemnize marriages is not restricted within his municipality
to the general rule in Art. 26 of said Code which accords validity to all implying that he has the authority even outside the territory thereof. Hence,
marriage solemnized outside the Philippines xxx and valid there as such. the marriage he solemnized outside his municipality is valid. And even
assuming that his authority is restricted within his municipality, such
Alternative Answer marriage will nevertheless, be valid because solemnizing the marriage
The marriage is void. Under FC 26, a marriage valid where celebrated is outside said municipality is a mere irregularity applying by analogy the case
valid in the Philippines except those marriages enumerated in said Article of Navarro v. Domagtoy, 259 SCRA 129. In this case, the Supreme Court held
which marriages will remain void even though valid where solemnized. The that the celebration by a judge of a marriage outside the jurisdiction of his
marriage between first cousins is one of those marriages enumerated court is a mere irregularity that did not affect the validity of the marriage
therein, hence, it is void even though valid in Spain where it was celebrated. notwithstanding Art. 7 of the Family Code which provides that an incumbent
member of the judiciary is authorized to solemnize marriages only within
Another Alternative Answer the court’s jurisdiction.
By reason of Art. 15 in relation to Article 38 of the Civil Code, which
applies to Filipinos wherever they are, the marriage is void.

d) A marriage between two Filipinos in Hong Kong before a notary public.
(2%)

154
 Q4 Q5
(Persons; Marriage; Divorce) (Succession; Presumptive Legitime)
Ben and Eva were both Filipino citizens at the time of their marriage in What do you understand by "presumptive legitime", in what case or
1967, When their marriage turned sour, Ben went to a small country in cases must the parent deliver such legitime to the children, and what are
Europe, got himself naturalized there, and then divorced Eva in accordance the legal effects in each case if the parent fails to do so? (5%)
with the law of that country, Later, he returned to the Philippines with his
new wife. Presumptive Legitime is not defined in the law. Its definition must have
been taken from Act 2710, the Old Divorce Law, which required the delivery
Eva now wants to know what action or actions she can file against Ben. to the legitimate children of "the equivalent of what would have been due
She also wants to know if she can likewise marry again. What advice can to them as their legal portion if said spouse had died intestate immediately
you give her? (5%) after the dissolution of the community of property." As used in the Family
Code, presumptive legitime is understood as the equivalent of the
Considering that FC 26(2nd par.) contemplates a divorce between a legitimate children's legitimes assuming that the spouses had died
foreigner and a Filipino, who had such respective nationalities at the time of immediately after the dissolution of the community of property.
their marriage, the divorce in Europe will not capacitate the Filipino wife to
remarry. The advice we can give her is either to file a petition for legal Presumptive legitime is required to be delivered to the common
separation, on the ground of sexual infidelity and of contracting a bigamous children of the spouses when the marriage is annulled or declared void ab
marriage abroad, or to file a petition to dissolve the conjugal partnership or initio and possibly, when the conjugal partnership or absolute community is
absolute community of property as the case maybe. dissolved as in the case of legal separation. Failure of the parents to deliver
the presumptive legitime will make their subsequent marriage null and void
Alternative Answer under FC 53.
Eva may file an action for legal separation on the grounds of sexual
infidelity of her husband and the contracting by her husband of a bigamous
marriage abroad.

She may remarry. While a strict interpretation of FC 26 would capacitate
a Filipino spouse to remarry only when the other spouse was a foreigner at
the time of the marriage, the DOJ has issued an opinion (Opinion 134 s. of
1993) that the same injustice sought to be cured by FC 26 is present in the
case of spouses who were both Filipino at the time of the marriage but one
became an alien subsequently. Said injustice is the anomaly of Eva
remaining married to her husband who is no longer married to her. Hence,
said Opinion makes FC 26 applicable to her case and the divorce obtained
abroad by her former Filipino husband would capacitate her to remarry. To
contract a subsequent marriage, all she needs to do is present to the civil
registrar the decree of divorce when she applies for a marriage license
under FC 13.

155
 Q6 Q7
(Persons; Paternity and Filiation) (Succession; Preterition; Compulsory Heirs)
(a) 2 months after the death of her husband who was shot by unknown (a) Mr. Cruz, widower, has three legitimate children, A, B and C. He
criminal elements on his way home from office, Rose married her childhood executed a Will instituting as his heirs to his estate of P1 Million his two
boyfriend, and 7 months after said marriage, she delivered a baby. In the children A and B, and his friend F. Upon his death, how should Mr. Cruz's
absence of any evidence from Rose as to who is her child's father, what estate be divided? Explain. (3%)
status does the law give to said child? Explain. (2%)
Assuming that the institution of A, B and F were to the entire estate,
The child is legitimate of the second marriage under FC 168(2) which there was preterition of C since C is a compulsory heir in the direct line. The
provides that a "child born after 180 days following the celebration of the preterition will result in the total annulment of the institution of heirs.
subsequent marriage is considered to have been conceived during such Therefore, the institution of A, B and F will be set aside and Mr. Cruz's
marriage, even though it be born within 300 days after the termination of estate will be divided, as in intestacy, equally among A, B and C as follows: A
the former marriage." - P333,333.33; B - P333.333.33; and C - P333,333.33.

(b) Nestor is the illegitimate son of Dr. Perez. When Dr. Perez died, (b) In the preceding question, suppose Mr. Cruz instituted his two
Nestor intervened in the settlement of his father's estate, claiming that he children A and B as his heirs in his Will, but gave a legacy of P100,000 to his
is the illegitimate son of said deceased, but the legitimate family of Dr. Perez friend F. How should the estate of Mr. Cruz be divided upon his death?
is denying Nestor's claim. What evidence or evidences should Nestor Explain, (2%)
present so that he may receive his rightful share in his father's estate? (3%)
On the same assumption as letter (a), there was preterition of C.
To be able to inherit, the illegitimate filiation of Nestor must have been Therefore, the institution of A and B is annulled but the legacy of
admitted by his father in any of the following: P100.000.00 to F shall be respected for not being inofficious. Therefore, the
1. the record of birth appearing in the civil register, remainder of P900.000.00 will be divided equally among A, B and C.
2. a final judgment,
3. a public document signed by the father, or
4. a private handwritten document signed by the lather (FC 175 in
relation to FC 172).

156
 Q8 the benefit of the relatives of the child within the third degree of
(Succession; Ineffective Disinheritance; Reserva Troncal) consanguinity and who belong to the family of Mr. Luna, the line where the
(a) Mr. Palma, widower, has three daughters D, D-1 and D-2. He property came from.
executes a Will disinheriting D because she married a man he did not like,
and instituting daughters D-1 and D-2 as his heirs to his entire estate of P1 When Mrs. Luna died, she was survived by her parents as her only heirs.
Million. Upon Mr. Palma's death, how should his estate be divided? Explain. Her parents will inherit her estate consisting of the 5 Million she inherited
(5%) from Mr. Luna. The other 5 Million she inherited from her child will be
delivered to the parents of Mr. Luna as beneficiaries of the reserved
This is a case of ineffective disinheritance because marrying a man that property.
the father did not approve of is not a ground for disinheriting D. Therefore,
the institution of D-1 and D-2 shall be annulled insofar as it prejudices the In sum, P5 Million of Mr. Luna's estate will go to the parents of Mrs.
legitime of D, and the institution of D-1 and D-2 shall only apply on the free Luna, while the other 5 Million Pesos will go to the parents of Mr. Luna as
portion in the amount of P500,000.00. Therefore, D, D-1 and D-2 will get reservatarios.
their legitimes of P500.000.00 divided into three equal parts and D-1 and D-
2 will get a reduced testamentary disposition of P250,000.00 each. Hence, Alternative Answer
the shares will be: If the child had an intra-uterine life of not less than 7 months, it
D: P166,666.66 inherited from the father. In which case, the estate of P10 Million will be
D-1: P166,666.66 + P250.000.00 divided equally between the child and the widow as legal heirs. Upon the
D-2: P166,666.66 + P250,000.00 death of the child, its share of P5 Million shall go by operation of law to the
mother, which shall be subject to reserva troncal. Under Art. 891, the
(b) Mr. Luna died, leaving an estate of P10 Million. His widow gave birth reserva is in favor of relatives belonging to the paternal line and who are
to a child 4 months after Mr. Luna's death, but the child died five hours after within 3 degrees from the child. The parents of Mr, Luna are entitled to the
birth. 2 days after the child's death, the widow of Mr. Luna also died reserved portion which is P5 Million as they are 2 degrees related from
because she had suffered from difficult childbirth. The estate of Mr. Luna is child. The P5 Million inherited by Mrs. Luna from Mr. Luna will be inherited
now being claimed by his parents, and the parents of his widow. Who is from her by her parents.
entitled to Mr. Luna's estate and why? (5%)
However, if the child had intra-uterine life of less than 7 months, half of
Half of the estate of Mr. Luna will go to the parents of Mrs. Luna as their the estate of Mr. Luna, or P5 Million, will be inherited by the widow (Mrs.
inheritance from Mrs. Luna, while the other half will be inherited by the Luna), while the other half, or P5 Million, will be inherited by the parents of
parents of Mr. Luna as the reservatarios of the reserved property inherited Mr. Luna. Upon the death of Mrs. Luna, her estate of P5 Million will be
by Mrs. Luna from her child. inherited by her own parents.

When Mr. Luna died, his heirs were his wife and the unborn child. The
unborn child inherited because the inheritance was favorable to it and it
was born alive later though it lived only for 5 hours. Mrs. Luna inherited half
of the P10 Million estate while the unborn child inherited the other half.
When the child died, it was survived by its mother, Mrs. Luna. As the only
heir, Mrs. Luna inherited, by operation of law, the estate of the child
consisting of its P5 Million inheritance from Mr. Luna. In the hands of Mrs.
Luna, what she inherited from her child was subject to reserva troncal for

157
 Q9
(Property; Builder in Good/Bad Faith)
(a) Because of confusion as to the boundaries of the adjoining lots that
they bought from the same subdivision company, X constructed a house on
the adjoining lot of Y in the honest belief that it is the land that he bought
from the subdivision company. What are the respective rights of X and Y
with respect to X's house? (3%)

The rights of Y, as owner of the lot, and of X, as builder of a house
thereon, are governed by Art. 448 of the Civil Code which grants to Y the
right to choose between two remedies: (a) appropriate the house by
indemnifying X for its value plus whatever necessary expenses the latter
may have incurred for the preservation of the land, or (b) compel X to buy
the land if the price of the land is not considerably more than the value of
the house. If it is, then X cannot be obliged to buy the land but he shall pay
reasonable rent, and in case of disagreement, the court shall fix the terms of
the lease.

(b) Suppose X was in good faith but Y knew that X was constructing on
his (Y's) land but simply kept quiet about it, thinking perhaps that he could
get X's house later. What are the respective rights of the parties over X's
house in this case? (2%)

Since the lot owner Y is deemed to be in bad faith (Art 453), X as the
party in good faith may (a) remove the house and demand indemnification
for damages suffered by him, or (b) demand payment of the value of the
house plus reparation for damages (Art 447, in relation to Art 454). Y
continues as owner of the lot and becomes, under the second option, owner
of the house as well, after he pays the sums demanded.

158
 1998 BAR QUESTIONS to the conjugal partnership with Carol, Carol can validly claim such properties
to the exclusion of Erlinda. (Art, 144, Civil Code)


PERSONS AND FAMILY (1998)

Property Relations (1998)
V. In 1973, Mauricio, a Filipino pensioner of the U.S. Government,
contracted a bigamous marriage with Erlinda, despite the fact that his first
wife, Carol, was still living. In 1975, Mauricio and Erlinda jointly bought a
parcel of Riceland, with the title being placed jointly in their names. Shortly
thereafter, they purchased another property (a house and lot) which was
placed in her name alone as the buyer. In 1981, Mauricio died, and Carol
promptly filed an action against Erlinda to recover both the Riceland and the
house and lot, claiming them to be conjugal property of the first marriage.
Erlinda contends that she and the late Mauricio were co-owners of the
Riceland; and the respect to the house and lot, she claims she is the exclusive
owner. Assuming she fails to prove that she had actually used her own money
in either purchase, how do you decide the case? [5%]

SUGGESTED ANSWER:
Carol’s action to recover both the Riceland and the house and lot is well-
founded. Both are conjugal property, in view of the failure of Erlinda, the wife,
in a bigamous marriage, to prove that her own money was used in the
purchases made. The Supreme Court in a case applied Art. 148, Family Code,
despite the fact that the husband’s death took place prior to the effectivity of
said law. However, even under Art. 144, Civil Code, the same conclusion
would have been reached in view of the bigamous marriage of the second
marriage.

ANOTHER ANSWER:
Under Art. 148, Family Code, which applies to bigamous marriage, only
the properties acquired by both parties through their actual joint contribution
of money, property or industry shall be owned by them in common in
proportion to their respective contributions. Moreover, his share in the co-
ownership shall accrue to the absolute community/conjugal partnership
existing in such valid marriage. Thus, in this case, since Erlinda failed to prove
that she used her own money to buy the riceland and house and lot, she
cannot claim to be the co-owner of the riceland nor the exclusive owner of
the house and lot. Such properties are Mauricio’s. And since his share accrues

159
 Property Relations; Conjugal Partnership of Gains (1998) marriage was contracted. As Bob and Issa contracted their marriage way back
VI. In 1970, Bob and Issa got married without executing a marriage in 1970, the property relation that governs them is still the conjugal
settlement. In 1975, Bob inherited from his father a residential lot upon partnership of gains. (Art. 158, Civil Code)
which, in 1981, he constructed a two-room bungalow with savings from his
own earnings. At that time, the lot was worth P800.000.00 while the house, ANOTHER ANSWER:
when finished cost P600,000.00. In 1989 Bob died, survived only by his wife, 2. If Bob died before August 3, 1988 which is the date the Family Code
Issa and his mother, Sofia. Assuming that the relative values of both assets took effect, the answer will not be the same. Art. 158. Civil Code, would then
remained at the same proportion: apply. The land would then be deemed conjugal, along with the house, since
1. State whether Sofia can rightfully claim that the house and lot conjugal funds were used in constructing it. The husband's estate would be
are not conjugal but exclusive property of her deceased son. [3%] entitled to a reimbursement of the value of the land from conjugal
2. Will your answer be the same if Bob died before August 3, 1988? partnership funds.
[2%]

SUGGESTED ANSWER:
1. Since Bob and Sofia got married In 1970, then the law that governs is
the New Civil Code (Persons), in which case, the property relations that
should be applied as regards the property of the spouses is the system of
relative community or conjugal partnership of gains (Article 119, Civil Code).
By conjugal partnership of gains, the husband and the wife place in a common
fund the fruits of their separate property and the income from their work or
Industry (Article 142, Civil Code). In this instance, the lot inherited by Bob in
1975 is his own separate property, he having acquired the same by lucrative
title (par. 2, Art. 148, Civil Code). However, the house constructed from his
own savings in 1981 during the subsistence of his marriage with Issa is
conjugal property and not exclusive property in accordance with the principle
of "reverse accession" provided for in Art. 158, Civil Code.

ANOTHER ANSWER:
1. Sofia, being her deceased son's legal heir concurring with his surviving
spouse (Arts. 985, 986 and 997, Civil Code), may rightfully claim that the
house and lot are not conjugal but belong to the hereditary estate of Bob, the
value of the land being more than the cost of the improvement (Art. 120,
Family Code).

SUGGESTED ANSWER:
2. Yes, the answer would still be the same. Since Bob and Issa contracted
their marriage way back in 1970, then the property relations that will govern
is still the relative community or conjugal partnership of gains (Article 119,
Civil Code). It will not matter if Bob died before or after August 3, 1988
(effectivity date of the Family Code), what matters is the date when the

160
 CONFLICT OF LAWS (1998) Applicable Laws; Capacity to Act (1998)
II. Francis Albert, a citizen and resident of New Jersey, U.S.A., under
Applicable Laws; Arts 15, 16 & 17 (1998) whose law he was still a minor, being only 20 years of age, was hired by ABC
I. Juan is a Filipino citizen residing in Tokyo, Japan. State what laws Corporation of Manila to serve for two years as its chief computer
govern: programmer. But after serving for only four months, he resigned to join XYZ
1. His capacity to contract marriage in Japan, [ 1%] Corporation, which enticed him by offering more advantageous terms. His
2. His successional rights as regards his deceased Filipino father's first employer sues him in Manila for damages arising from the breach of his
property in Texas, U.S.A. [1%] contract of employment. He sets up his minority as a defense and asks for
3. The extrinsic validity of the last will and testament which Juan annulment of the contract on that ground. The plaintiff disputes this by
executed while sojourning in Switzerland. [2%] alleging that since the contract was executed in the Philippines under whose
4. The intrinsic validity of said will. (1%) law the age of majority is 18 years, he was no longer a minor at the time of
perfection of the contract.
SUGGESTED ANSWER: 1. Will the suit prosper? [3%]
1. Juan's capacity to contract marriage is governed by Philippine law - i.e., 2. Suppose XYZ Corporation is impleaded as a co-defendant, what
the Family Code -pursuant to Art. 15, Civil Code, which provides that our laws would be the basis of its liability, if any? [2%]
relating to, among others, legal capacity of persons are binding upon citizens
of the Philippines even though living abroad. SUGGESTED ANSWER:
2. By way of exception to the general rule of lex rei sitae prescribed by 1. The suit will not prosper under Article 15, Civil Code. New Jersey law
the first paragraph of Art. 16, Civil Code, a person's successional rights are governs Francis Albert's capacity to act, being his personal law from the
governed by the national law of the decedent (2nd par., Art. 16). Since Juan's standpoint of both his nationality and his domicile. He was, therefore, a minor
deceased father was a Filipino citizen, Philippine law governs Juan's at the time he entered into the contract.
successional rights.
ANOTHER ANSWER: ALTERNATIVE ANSWER:
2. Juan's successional rights are governed by Philippine law, pursuant to 1. The suit will not prosper. Being a U.S. national, Albert's capacity to
Article 1039 and the second paragraph of Article 16, both of the Civil Code. enter into a contract is determined by the law of the State of which he is a
Article 1039, Civil Code, provides that capacity to succeed shall be governed national, under which he to still a minor. This is in connection with Article 15
by the "law of the nation" of the decedent, i.e.. his national law. Article 16 of the Civil Code which embodies the said nationality principle of lex patriae.
provides in paragraph two that the amount of successional rights, order of While this principle intended to apply to Filipino citizens under that provision,
succession, and intrinsic validity of testamentary succession shall be the Supreme Court in Recto v. Harden is of the view that the status or capacity
governed by the "national law" of the decedent who is identified as a Filipino of foreigners is to be determined on the basis of the same provision or
in the present problem. principle, i.e., by U.S. law in the present problem.
3. The extrinsic validity of Juan's will is governed by (a) Swiss law, it being Plaintiff’s argument does not hold true, because status or capacity is not
the law where the will was made (Art. 17. 1st par. Civil Code), or (b) Philippine determined by lex loci contractus but by lex patriae.
law, by implication from the provisions of Art. 816, Civil Code, which allows
even an alien who is abroad to make a will in conformity with our Civil Code. ANOTHER ANSWER:
4. The intrinsic validity of his will is governed by Philippine law, it being 1. Article 17 of the Civil Code provides that the forms and solemnities of
his national law. (Art. 16, Civil Code) contracts, wills and other public instruments shall be governed by the laws of
the country in which they are executed. Since the contract of employment
was executed in Manila, Philippine law should govern. Being over 18 years old

161
and no longer a minor according to Philippine Law, Francis Albert can be sued. PROPERTY (1998)
Thus, the suit of ABC Corporation against him for damages will prosper.
Possession (1998)
2. XYZ Corporation, having enticed Francis Albert to break his contract IV. Using a falsified manager's check, Justine, as the buyer, was able to
with the plaintiff, may be held liable for damages under Art. 1314, Civil Code. take delivery of a second hand car which she had just bought from United Car
Sales Inc. The sale was registered with the Land Transportation Office. A week
ALTERNATIVE ANSWER: later, the seller learned that the check had been dishonored, but by that time,
2. The basis of liability of XYZ Corporation would be Article 28 of the Civil Justine was nowhere to be seen. It turned out that Justine had sold the car to
Code which states that: "Unfair competition in agricultural, commercial, or Jerico, the present possessor who knew nothing about the falsified check. In
industrial enterprises or in labor through the use of force, intimidation, a suit by United Car Sales, Inc. against Jerico for recovery of the car, plaintiff
deceit, machination or any other unjust, oppressive or highhanded method alleges it had been unlawfully deprived of its property through fraud and
shall give rise to a right of action by the person who thereby suffers damage." should, consequently, be allowed to recover it without having to reimburse
the defendant for the price the latter had paid. Should the suit prosper? [5%]
ANOTHER ANSWER:
2. No liability arises. The statement of the problem does not in any way SUGGESTED ANSWER:
suggest intent, malice, or even knowledge, on the part of XYZ Corporation as The suit should prosper as to the recovery of the car. However, since
to the contractual relations between Albert and ABC Corporation. Jerico was not guilty of any fraud and appears to be an innocent purchaser
for value, he should be reimbursed for the price he paid. This is without
prejudice to United Car Sales, Inc. right of action against Justine. As between
two innocent parties, the party causing the injury should suffer the loss.
Therefore, United Car Sales, Inc. should suffer the loss.

ALTERNATIVE ANSWER:
Yes, the suit will prosper because the criminal act of estafa should be
deemed to come within the meaning of unlawful deprivation under Art. 559,
Civil Code, as without it plaintiff would not have parted with the possession
of its car.

ANOTHER ANSWER:
No, the suit will not prosper. The sale is valid and Jerico is a buyer in good
faith.

ANOTHER ANSWER:
Under the law on Sales, when the thing sold is delivered by the seller to
the buyer without reservation of ownership, the ownership is transferred to
the buyer. Therefore in the suit of United Car Sales, Inc. against Jerico for the
recovery of the car, the plaintiff should not be allowed to recover the car
without reimbursing the defendant for the price that the latter paid. (EDCA
Publishing and Distributing Corp. vs. Santos, 184 SCRA 614, April 26, 1990)

162
 Easements; Classification (1998) SUCCESSION (1998)
XVI. Distinguish between:
1. Continuous and discontinuous easements; |2%] Death; Effects; Simultaneous Death (1998)
2. Apparent and non-apparent easements; and [2%] III. Jaime, who is 65, and his son, Willy, who is 25, died in a plane crash.
3. Positive and negative easements. [1%] There is no proof as to who died first. Jaime's only surviving heir is his wife,
Julia, who is also Willy's mother. Willy's surviving heirs are his mother, Julia
SUGGESTED ANSWER: and his wife, Wilma.
1. CONTINUOUS EASEMENTS are those the use of which is or may be 1. In the settlement of Jaime's estate, can Wilma successfully
incessant, without the intervention of any act of man, while DISCONTINUOUS claim that her late husband, Willy had a hereditary share since he was
EASEMENTS are those which are used at intervals and depend upon the acts much younger than his father and, therefore, should be presumed to
of man. (Art. 615, Civil Code) have survived longer? [3%]
2. APPARENT EASEMENTS are those which are made known and are 2. Suppose Jaime had a life insurance policy with his wife, Julia,
continually kept in view by external signs that reveal the use and enjoyment and his son, Willy, as the beneficiaries. Can Wilma successfully claim
of the same, while NON-APPARENT EASEMENTS are those which show no that one-half of the proceeds should belong to Willy's estate? |2%J
external indication of their existence. (Art. 615, Civil Code)
3. POSITIVE EASEMENTS are those which impose upon the owner of the SUGGESTED ANSWER:
servient estate the obligation of allowing something to be done or of doing it 1. No, Wilma cannot successfully claim that Willy had a hereditary share
himself, while NEGATIVE EASEMENTS are those which prohibit the owner of in his father's estate. Under Art. 43, Civil Code, two persons "who are called
the servient estate from doing something which he could lawfully do if the to succeed each other" are presumed to have died at the same time, in the
easement did not exist. (Art. 615. Civil Code) absence of proof as to which of them died first. This presumption of
simultaneous death applies in cases involving the question of succession as
between the two who died, who in this case are mutual heirs, being father
and son.
2. Yes, Wilma can invoke the presumption of survivorship and claim that
one-half of the proceeds should belong to Willy's estate, under Sec. 3 (jj) par.
5 Rule 131, Rules of Court, as the dispute does not involve succession. Under
this presumption, the person between the ages of 15 and 60 years is deemed
to have survived one whose age was over 60 at the time of their deaths. The
estate of Willy endowed with juridical personality stands in place and stead
of Willy, as beneficiary.

163
 Intestate Succession (1998) Intestate Succession (1998)
XI. Tessie died survived by her husband Mario, and two nieces, Michelle XII. Enrique died, leaving a net hereditary estate of P1.2 million. He is
and Jorelle, who are the legitimate children of an elder sister who had survived by his widow, three legitimate children, two legitimate
predeceased her. The only property she left behind was a house and lot worth grandchildren sired by a legitimate child who predeceased him, and two
two million pesos, which Tessie and her husband had acquired with the use recognized illegitimate children. Distribute the estate in intestacy. [5%]
of Mario's savings from his income as a doctor. How much of the property or
its value, if any, may Michelle and Jorelle claim as their hereditary shares? SUGGESTED ANSWER:
[5%] Under the theory of Concurrence, the shares are as follows:
A (legitimate child) = P200,000
SUGGESTED ANSWER: B (legitimate child) = P200,000
Article 1001 of the Civil Code provides, "Should brothers and sisters or C (legitimate child) = P200,000
their children survive with the widow or widower, the latter shall be entitled D (legitimate child) = 0 (predeceased)
to one-half of the inheritance and the brothers and sisters or their children to E (legitimate child of D) = P100,000 - by right of representation
the other half." Tessie's gross estate consists of a house and lot acquired F (legitimate child of D) = P100,000 - by right of representation
during her marriage, making it part of the community property. Thus, one- G (illegitimate child) = P100,000 - 1/2 share of the legitimate child
half of the said property would have to be set aside as Mario's conjugal share H (illegitimate child) = P100,000 - 1/2 share of the legitimate child
from the community property. The other half, amounting to one million W (Widow) = P200.000 - same share as legitimate child
pesos, is her conjugal share (net estate), and should be distributed to her
intestate heirs. Applying the above provision of law, Michelle and Jorelle, ANOTHER ANSWER:
Tessie's nieces, are entitled to one-half of her conjugal share worth one Under the theory of Exclusion the free portion (P300,000) is distributed
million pesos, or 500,000 pesos, while the other one-half amounting to only among the legitimate children and is given to them in addition to their
P500,000 will go to Mario, Tessie's surviving spouse. Michelle and Jorelle are legitime. All other Intestate heirs are entitled only to their respective
then entitled to P250,000 pesos each as their hereditary share. legitimes. The distribution is as follows:
Legitime + Free Portion = Total
A [legitimate child) P150,000 + P 75,000 = P225,000
B (legitimate child) P150,000 + P75,000 = P225,000
C (legitimate child) P150,000 + P 75,000 = P225,000
D (legitimate child) 0+0 = 0
E (legitimate child of D) P 75,000 + P35,500 = P112,500
F (legitimate child of D) P 75,000 + P 37,500 = P112,500
G (illegitimate child) P 75,000+0 = P 75,500
H (illegitimate child) P 75,000+0 = P 75,500
W (Widow) P150,000+0 = P150,000

164
 1997 BAR QUESTIONS rights, or, the intrinsic validity of testamentary provisions. Such issue is not
involved in this case.

ALTERNATIVE ANSWER:
TOPIC: CONFLICT OF LAWS, LAWS GOVERNING MARRIAGE
Yes. "Renvoi" - which means "referring back" is relevant because here,

we are applying U.S. law to Mario, being already its citizen, although the
QUESTION NO. 2 formalities of the second marriage will be governed by Philippine law under
the principle of lex loci celebrationis.


In 1977, Mario and Clara, both Filipino citizens, were married in the
Philippines. Three years later, they went to the United States of America and
established their residence in San Francisco, California. In 1987, the couple
applied for, and were granted, U.S. citizenship. In 1989, Mario, claiming to
have been abandoned by Clara, was able to secure a decree of divorce in
Reno, Nevada, U.S.A.

In 1990, Mario returned to the Philippines and married Juana who

knew well Mario's past life.

(a) Is the marriage between Mario and Juana valid

SUGGESTED ANSWER: Yes, In relation to Art. 15 of the Civil Code, Conflict

of Laws provides that the recognition of absolute divorce granted in another
State rests on the citizenship of the parties at the time the divorce was
granted (Paras, Phil. Conflict of Laws, p. 259). Applied in this case, the divorce
decree issued to Clara and Mario will be recognized as valid here considering
that at the time the foreign decree was granted, both Clara and Mario are
citizens of the USA, a country which grants absolute divorce. Since the
marriage between Mario and Clara has been validly terminated, Mario and
Juana can freely marry each other.

(b) Would the renvoi doctrine have any relevance to the case?

SUGGESTED ANSWER: No, The renvoi doctrine is relevant in cases where

one country applies the domiciliary theory and the other the nationality
theory, and the issue involved is which of the laws of the two countries should
apply to determine the order of succession, the amount of successional

165
 TOPIC: MARRIAGE, DISSOLUTION, ART. 147/148 Thus:

A. the wages and salaries of Luis in the amount of P200,000.00

shall be divided equally between Luis and Rizza.
QUESTION NO. 4
B. the house and lot valued at P500.000.00 having been
Luis and Rizza, both 26 years of age and single, live exclusively with each acquired by both of them through work or industry shall be
other as husband and wife without the benefit of marriage, Luis is gainfully divided between them in proportion to their respective
employed, Rizza is not employed, stays at home, and takes charge of the contribution, in consonance with the rules on co-ownership.
household chores. After living together for a little over twenty years, Luis was Hence, Luis gets 2\5 while Rizza gets 3\5 of P500.000.00.
able to save from his salary earnings during that period the amount of
P200,000.00 presently deposited in a bank. A house and lot worth C. the car worth P100,000.00 shall be exclusively owned by
P500,000.00 was recently purchased for the same amount by the couple. Of Rizza, the same having been donated to her by her parents.
the P500.000.00 used by the common-law spouses to purchase the property,
P200.000.00 had come from the sale of palay harvested from the hacienda (b) What would your answer be (to the above question) had Luis and
owned by Luis and P300,000.00 from the rentals of a building belonging to Rizza been living together all the time, ie., since twenty years ago,
Rizza. In fine, the sum of P500.000.00 had been part of the fruits received under a valid marriage?
during the period of cohabitation from their separate property, a car worth
P100.000.00. being used by the common-law spouses, was donated Just
SUGGESTED ANSWER: The property relations between Luis and Rizza,
months ago to Rizza by her parents. Luis and Rizza now decide to terminate
their marriage having been celebrated 20 years ago (under the Civil Code)
their cohabitation, and they ask you to give them your legal advice on the
shall be governed by the conjugal partnership of gains, under which the
following:
husband and wife place in a common fund the proceeds, products, fruits and
A. How, under the law should the bank deposit of P200,000.00 the house income from their separate properties and those acquired by either or both
and lot valued at P500.000.00 and the car worth P100.000.00 be spouses through their efforts or by chance, and upon dissolution of the
allocated to them? marriage or of the partnership, the net gains or benefits obtained by either
or both spouse shall be divided equally between them (Art. 142. Civil Code).
SUGGESTED ANSWER: Art. 147 of the Family Code provides in part that
when a man and a woman who are capacitated to marry each other, live Thus:
exclusively with each other as husband and wife without the benefit of
A. The salary of Luis deposited in the bank in the amount of
marriage or under a void marriage, their wages and salaries shall be owned
P200.000.00 and the house and lot valued at P500,000.00
by them in equal shares and the property acquired by both of them through
shall be divided equally between Luis and Rizza.
their work or industry shall be governed by the rules of coownership.
B. However, the car worth P100.000,00 donated to Rizza by her
In the absence of proof to the contrary, properties acquired while they
parents shall be considered to her own paraphernal
lived together shall be presumed to have been obtained by their Joint efforts,
property, having been acquired by lucrative title (par. 2, Art.
worker Industry, and shall be owned by them in equal shares. A party who
148, Civil Code)
did not participate in the acquisition by the other party of any property shall
be deemed to have contributed jointly in the acquisition thereof if the
former's efforts consisted in the care and maintenance of the family and of
the household.

166
 TOPIC: MARRIAGE, DRUG ADDICITION AS A GROUND IN 2) The action must be filed within five (5) years from the
VOID/VOIDABLE/LEG SEP occurrence of the cause.

3) Drug addiction arises during the marriage and not at the time
of marriage.
QUESTION NUMBER 5:

Under what conditions, respectively, may drug addiction be a ground, if

at all, (a) for a declaration of nullity of marriage, (b) for an annulment of the
marriage contract, and (c) for legal separation between the spouses?

SUGGESTED ANSWER:

(a) Declaration of nullity of marriage:

1) The drug addiction must amount to psychological incapacity to

comply with the essential obligations of marriage;

2) It must be antecedent (existing at the time of marriage), grave

and incurable:

3) The case must be filed before August 1, 1998. Because if they

got married before August 3, 1998, it must be filed before
August 1, 1998.

(b) Annulment of the Marriage Contract:

1) The drug addiction must be concealed

2) It must exist at the time of marriage;

3) There should be no cohabitation with full knowledge of the

drug addiction;

4) The case is filed within five (5) years from discovery.

(c) Legal Separation;

1) There should be no condonation or consent to the drug

addiction;

167
 TOPIC: PROPERTY, REAL VS. PERSONAL O.G. 4374) (Reyes and Puno, Outline of Philippine Civil Law, Vol. 2. p.7)

QUESTION NUMBER 6: 2. The warehouse built by Pedro on the mortgaged property is real
property within the context of Article 415 of the New Civil Code, although it
Pedro is the registered owner of a parcel of land situated in Malolos, was built by Pedro after the foreclosure sale without the knowledge and
Bulacan. In 1973, he mortgaged the land to the Philippine National Bank consent of the new owner which makes him a builder in bad faith, this does
(PNB) to secure a loan of P100.000.00. For Pedro's failure to pay the loan, the not alter the character of the warehouse as a real property by incorporation.
PNB foreclosed on the mortgage in 1980, and the land was sold at public It is a structure which cannot be removed without causing injury to the land.
auction to PNB for being the highest bidder. PNB secured title thereto in So, my advice to Pedro is to file the case with the RTC of Bulacan, the situs of
1987. the property,
In the meanwhile, Pedro, who was still in possession of the land, (Note: If the examinee does not mention that the structure was built by
constructed a warehouse on the property. In 1988, the PNB sold the land to a builder in bad faith, it should be given full credit).
Pablo, the Deed of Sale was amended in 1989 to include the warehouse.

Pedro, claiming ownership of the warehouse, files a complaint to annul
the amended Deed of Sale before the Regional Trial Court of Quezon City,
where he resides, against both the PNB and Pablo. The PNB filed a motion to
dismiss the complaint for improper venue contending that the warehouse is
real property under Article 415(1) of the Civil Code and therefore the action
should have instead been filed in Malolos, Bulacan. Pedro claims otherwise.
The question arose as to whether the warehouse should be considered as real
or as personal property.

If consulted, what would your legal advice be?

SUGGESTED ANSWER: The warehouse which is a construction adhered

to the soil is an immovable by nature under Art. 415 (1) and the proper venue
of any case to recover ownership of the same, which is what the purpose of
the complaint to annul the amended Deed of Sale amounts to, should be the
place where the property is located, or the RTC of Bulacan.

ADDITIONAL ANSWERS:

1. Buildings are always immovable property, and even in the instances

where the parties to a contract seem to have dealt with it separate and apart
from the land on which it stood in no wise does it change its character as
immovable property. A building is an immovable even if not erected by the
owner of the land. The only criterion is union or incorporation with the soil.
(Ladera vs. Hodges (CA) 48

168
 TOPIC: PROPERTY, HIDDEN TREASURE 3. The main rule is that hidden treasure belongs to the owner of the land,
building or other property on which it is found. If it is found by chance by a
QUESTION NUMBER 7: third person and he is not a trespasser, he is entitled to one-half (1/2). If he
is a trespasser, he loses everything.
Marcelino, a treasure hunter as just a hobby, has found a map which
appears to indicate the location of hidden treasure. He has an idea of the land
where the treasure might possibly be found. Upon inquiry, Marcelino learns
that the owner of the land, Leopoldo, is a permanent resident of Canada,
Nobody, however, could give him Leopoldo's exact address. Ultimately,
anyway, he enters the land and conducts a search. He succeeds.

Leopoldo learning of Marcelino's "find", seeks to recover the treasure

from Marcelino but the latter is not willing to part with it. Failing to reach an
agreement, Leopoldo sues Marcelino for the recovery of the property.
Marcelino contests the action. How would you decide the case?

SUGGESTED ANSWER:

I would decide in favor of Marcelino since he is considered a finder by

chance of the hidden treasure, hence, he is entitled to one-half (1/2) of the
hidden treasure. While Marcelino may have had the intention to look for the
hidden treasure, still he is a finder by chance since it is enough that he tried
to look for it. By chance in the law does not mean sheer luck such that the
finder should have no intention at all to look for the treasure. By chance
means good luck, implying that one who intentionally looks for the treasure
is embraced in the provision. The reason is that it is extremely difficult to find
hidden treasure without looking for it deliberately. Marcelino is not a
trespasser since there is no prohibition for him to enter the premises, hence,
he is entitled to half of the treasure.

ALTERNATIVE ANSWERS:

1. Marcelino did not find the treasure by chance because he had a map,
he knew the location of the hidden treasure and he intentionally looked for
the treasure, hence, he is not entitled to any part of the treasure.

2. Marcelino appears to be a trespasser and although there may be a

question of whether he found it by chance or not, as he has found the hidden
treasure by means of a treasure map, he will not be entitled to a finder's
share. The hidden treasure shall belong to the owner.

169
 TOPIC: PROPERTY, USUFRUCT

QUESTION NUMNER 8:

On 1 January 1980, Minerva, the owner of a building, granted Petronila a

usufruct over the property until 01 June 1998 when Manuel, a son of
Petronila, would have reached his 30th birthday. Manuel, however, died on
1 June 1990 when he was only 26 years old.

Minerva notified Petronila that the usufruct had been extinguished by the
death of Manuel and demanded that the latter vacate the premises and
deliver the same to the
former. Petronila refused to vacate the place on the ground that the usufruct
in her favor would expire only on 1 June 1998 when Manuel would have
reached his 30th birthday and that the death of Manuel before his 30th
birthday did not extinguish the usufruct. Whose contention should be
accepted?

SUGGESTED ANSWER:
Petronila's contention is correct. Under Article 606 of the Civil Code, a
usufruct granted for the time that may elapse before a third person reaches
a certain age shall subsist for the number of years specified even if the third
person should die unless there is an express stipulation in the contract that
states otherwise. In the case at bar, there is no express stipulation that the
consideration for the usufruct is the existence of Petronila's son. Thus, the
general rule and not the exception should apply in this case.

ALTERNATIVE ANSWER:
This is a usufruct which is clearly intended for the benefit of Manuel until he
reaches 30 yrs. of age with Petronila serving only as a conduit, holding the
property in trust for his benefit. The death of Manuel at the age of 26
therefore, terminated the usufruct.

170
 TOPIC: PROPERTY, POSSESSION VS. OCCUPATION, DONATION ADDITIONAL ANSWER: No. In simple or pure donation, only the illegal or
impossible condition is considered not written but the donation remains valid
QUESTION NUMBER 9: and becomes free from conditions. The condition or mode being a mere
accessory disposition. Its nullity does not affect the donation unless it clearly
A. Distinguish between “possession” and “occupation” as these terms
appears that the donor would not have made the donation without the mode
are commonly used in Book II and Book III of the Civil Code.
or condition. On the other hand, onerous donation is governed by the rules
SUGGESTED ANSWER: Possession is a real right, while occupation is one on contracts. Under Article 1183, Impossible or illegal conditions shall annul
of the original modes of acquiring ownership and other real rights. the obligation which depends upon them. In these cases, both the obligation
Possession, the holding of a thing or the exercise of a right, does not in itself and the condition are void.
constitute ownership. Whereas, occupation in itself is a mode of acquiring
ownership. There cam be possession without ownership.

ADDITIONAL ANSWER: Possession is the holding of a thing or the

enjoyment of a right (Art. 532, CC). It can refer to all kinds of property
whether with or without an owner while occupation can take place only with
respect to a property without an owner (Articles 531 & 793). Ownership in
itself, when proper, confers ownership but possession by itself does not giver
rise to ownership.

B. Are the effects of illegal and immoral conditions on simple donations

the same as those effects that would follow when such conditions are
imposed on donations con causa onerosa?

SUGGESTED ANSWER: No, they don't have the same effect. Illegal or
impossible conditions in simple and remuneratory donations shall be
considered as not imposed. Hence the donation is valid. The donation will be
considered as simple or pure. The condition or mode is merely an accessory
disposition, and its nullity does not affect the donation, unless it clearly
appears that the donor would not have made the donation without the mode
or condition.

Donations con causa onerosa is governed by law on obligations and

contracts, under which an impossible or Illicit condition annuls the obligation
dependent upon the condition where the condition is positive and
suspensive. If the impossible or illicit condition is negative, it is simply
considered as not written, and the obligation is converted into a pure and
simple one. However, in order that an illegal condition may annul a contract,
the impossibility must exist at the time of the creation of the obligation; a
supervening impossibility does not affect the existence of the obligation.

171
 TOPIC: SUCCESSION, FOMALITIES OF A WILL 2. On the basis of the Rules of Court, Rule 76, Sec. 6, provides that no will
shall be proved as a lost or destroyed will unless its provisions are clearly and
distinctly proved by at least two (2) credible witnesses. Hence, if we abide
strictly by the two-witness rule to prove a lost or destroyed will, the
QUESTION NUMBER 10:
holographic will which Johnny allegedly mistakenly burned, cannot be
Johnny, with no known living relatives, executed a notarial will giving all probated, since there is only one witness, Eduardo, who can be called to
his estate to his sweetheart. One day, he had a serious altercation with his testify as to the existence of the will. If the holographic will, which
sweetheart. A few days later, he was introduced to a charming lady who later purportedly, revoked the earlier notarial will cannot be proved because of the
became a dear friend. Soon after, he executed a holographic will expressly absence of the required witness, then the petition for the probate of the
revoking the notarial will and so designating his new friend as sole heir. One notarial will should prosper.
day when he was clearing up his desk, Johnny mistakenly burned, along with

other papers, the only copy of his holographic will. His business associate,
Eduardo knew well the contents of the will which was shown to him by
Johnny the day it was executed. A few days after the burning incident, Johnny
died. Both wills were sought to be probated in two separate petitions. Will
either or both petitions prosper?

SUGGESTED ANSWER:

The probate of the notarial will will prosper. The holographic will cannot
be admitted to probate because a holographic will can only be probated upon
evidence of the will itself unless there is a photographic copy. But since the
holographic will was lost and there was no other copy, it cannot be probated
and therefore the notarial will will be admitted to probate because there is
no revoking will.

ADDITIONAL ANSWERS:

1. In the case of Gan vs. Yap (104 Phil 509), 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 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. Moreover, in order that a
will may be revoked by a subsequent will, it is necessary that the latter will
be valid and executed with the formalities required for the making of a will.
The latter should possess all the requisites of a valid will whether it be
ordinary or a holographic will, and should be probated in order that the
revocatory clause thereof may produce effect. In the case at bar, since the
holographic will itself cannot be presented, it cannot therefore be probated.
Since it cannot be probated, it cannot revoke the notarial will previously
written by the decedent.
172
 TOPIC: SUCCSSION, COMPUTATION, DIVISION OF ESTATE M - Mother…………………………………………………………………None

W - Widow……………............................................................................................P 30,000.00

A - Son...........................................................................................................................P 30,000.00
QUESTION NUMBER 11:
B - Son...........................................................................................................................P30.000.00
"T" died intestate on 1 September 1997.He was survived by M (his
C - Grandson (son of B).......................................................................................................None
mother), W (his widow), A and B (his legitimate children), C (his grandson,
being the legitimate son of B), D (his other grandson, being the son of E who D - Grandson (son of E who predeceased T).............................................................P 30,000.00
was a legitimate son of, and who predeceased, "T"), and F (his grandson, F - Grandson (son of G who repudiated the Inheritance from”T”)………………None
being the son of G, a legitimate son who repudiated the inheritance from "T").
His distributable net estate is P120.000.00. How should this amount be Explanation:
shared in intestacy among the surviving heirs?
a) The mother (M) cannot inherit from T because under Art. 985 the
SUGGESTED ANSWER: ascendants shall inherit in default of legitimate children and
descendants of the deceased.
The legal heirs are A, B, D, and W. C is excluded by B who is still alive. D
inherits in representation of E who predeceased. F is excluded because of the b) The widow's share is P30.000.00 because under Art, 996 it states
repudiation of G, the predecessor. M is excluded by the legitimate children of that if the widow or widower and legitimate children or
T. The answer may be premised on two theories: the Theory of Exclusion and descendants are left, the surviving spouse has in the succession the
the Theory of Concurrence. same share as that of each of the children,

Under the Theory of Exclusion the legitimes of the heirs are accorded c) C has no share because his father is still alive hence succession by
them and the free portion will be given exclusively to the legitimate representation shall not apply (Art. 975).
descendants. Hence under the Exclusion Theory: A will get P20.000.00. and P
13.333.33 (1/3 of the free portion) B will get P 20,000.00. and P13. 333.33 d) D inherits P30.000 which is the share of his father E who
(1/3 of the free portion) D will get P20.000.00. and P13. 333.33 (1/3 of the predeceased T by virtue of Art. 981 on the right of representation.
free portion)
e) F has no share because his father G repudiated the inheritance.
W, the widow is limited to the legitime of P20.000.00 Under the Theory Under Article 977 heirs who repudiate their share may not be
of Concurrence. In addition to their legitimes, the heirs of A, B, D and W will represented.
be given equal shares in the free portions:

A: P20.000.00 plus P10.000.00 (1 /4 of the free portion)
B: P20,000.00 plus P10.000.00 (l/4 of the free portlon)
C: P20,000.00 plus P10.000.00 (1/4 of the free portion)
W: P20,000.00 plus P10,000.00 (l/4 of the free portion)

ALTERNATIVE ANSWER:

Shares in Intestacy

T - decedent Estate: P120.000.00

Survived by:

173
 TOPIC: SUCCESSION, COMPUTATION, DIVISION OF ESTATE The acknowledged illegitimate child gets 1/2 of the share of each
legitimate child.
QUESTION NUMBER 12:

"X", the decedent, was survived by W (his widow). A (his son), B (a
granddaughter, being the daughter of A) and C and D (the two acknowledged
illegitimate children of the decedent). "X" died this year (1997) leaving a net
estate of P180,000.00. All were willing to succeed, except A who repudiated
the inheritance from his father, and they seek your legal advice on how much
each can expect to receive as their respective shares in the distribution of the
estate. Give your answer.

SUGGESTED ANSWER:
The heirs are B, W, C and D. A inherits nothing because of his renunciation. B
inherits a legitime of P90.000.00 as the nearest and only legitimate
descendant, inheriting in his own right not by representation because of A's
renunciation. W gets a legitime equivalent to one-half (1 / 2) that of B
amounting to P45.000. C and D each gets a legitime equivalent to one-half
(1/2) that of B amounting to P45.000.00 each. But since the total exceeds the
entire estate, their legitimes would have to be reduced corresponding to
P22.500.00 each (Art. 895. CC). The total of all of these amounts to
P180.000.00.

ALTERNATIVE ANSWER:

INTESTATE SUCCESSION

ESTATE: P180,000.00

W- (widow gets 1/2 share) P90.000.00

(Art. 998)

A- (son who repudiated his inheritance). None

(Art. 977)

B - (Granddaughter) None

C - (Acknowledged illegitimate child) P45.000.00

(Art.998)
D - (Acknowledged illegitimate child) P45,000.00
(Art. 998)

174
 1996 BAR QUESTIONS Question No. 3: Family Code; Annulment; Psychological Incapacity
On April 15, 1983, Jose, an engineer, and Marina, a nurse, were married

to each other in a civil ceremony in Boac. Marinduque. Six months after their
Question No. 1:
marriage, Jose was employed in an oil refinery in Saudi Arabia for a period of
Persons; Ignorance of the Law vs Mistake of Fact
three years. When he returned to the Philippines. Marina was no longer living
(1) Is there any difference in their legal effect between ignorance of the
in their house, but In Zamboanga City, working in a hospital. He asked her to
law and ignorance or mistake of fact?
come home, but she refused to do so, unless he agreed not to work overseas

anymore because she cannot stand living alone. He could not agree as in fact,
Answer:
he had signed another three year contract. When he returned In 1989, he
Yes, there is a difference. While ignorance of the law is not an excuse
could not locate Marina anymore. In 1992, Jose filed an action served by
for not complying with it, ignorance of fact eliminates criminal intent as long
publication Ina newspaper of general circulation. Marina did not file any
as there is no negligence. In addition, mistake on a doubtful or difficult
answer. A possible collusion between the parties was ruled out by the Public
question of law may be the basis of good faith (Art. 526, NCC). Mistake of
Prosecutor. Trial was conducted, and Marina neither appeared nor presented
fact may, furthermore, vitiate consent in a contract and make it voidable
evidence In her favor. If you were the judge, will you grant the annulment.
(Art. 1390, NCC).
Explain.


Alternative Answer:
Answer:
Yes. Ignorance of the law differs in legal effect from ignorance or
As judge, I will not grant the annulment. The facts do not show any taint
mistake of fact. The former does not excuse a party from the legal
of personality disorder on the part of the wife Marina so as to lend
consequences of his conduct while the latter does constitute an excuse and
substance to her husband's averment of psychological Incapacity within the
is a legal defense.
meaning of Art 36 of the Family Code. In Santos vs. CA (240 SCRA 20), this

particular ground for nullity of marriage was held to be limited only to the
Persons; Juridical Capacity vs Capacity to Act
most serious cases of personality disorders clearly demonstrative of utter
(2) Distinguish juridical capacity from capacity to act.
sensitivity or inability to give meaning and significance to the marriage.

Marina's refusal to come home to her husband unless he agreed not to work
Answer:
overseas, far from being indicative of an insensitivity to the meaning of
Juridical capacity is the fitness to be the subject of legal relations while
marriage, or of a personality disorder, actually shows a sensitive awareness
capacity to act Is the power or to do acts with legal effect. The former is
on her part of the marital duty to live together as husband and wife. Mere
inherent in every natural person and is lost only through death while the
refusal to rejoin her husband when he did not accept the condition imposed
latter is merely acquired and may be lost even before death (Art. 37, NCC).
by her does not furnish any basis for concluding that she was suffering from

psychological Incapacity to discharge the essential marital obligations.
Alternative Answer:
Mere intention to live apart does not fall under Art. 36, FC.
Juridical capacity, as distinguished from capacity to act: (a) the former
Furthermore, there is no proof that the alleged psychological incapacity
is passive while the latter is active, (b) the former is inherent in a person
existed at the time of the marriage.
while the latter is merely acquired, (c) the former is lost only through death

while the latter may be lost through death or restricted by causes other than
death, and (d) the former can exist without capacity to act while the latter
cannot exist without juridical capacity.

175
 Question No. 4: Family Code; Requisites of Marriage; Marriage License
On Valentine's Day. 1996. Ellas and Fely, both single and 25 years of age,
went to the city hall where they sought out a fixer to help them obtain a
quickie marriage. For a fee, the fixer produced an ante-dated marriage license
for them, Issued by the Civil Registrar of a small remote municipality. He then
brought them to a licensed minister in a restaurant behind the city hall, and
the latter solemnized their marriage right there and then.

(1) Is their marriage valid, void or voidable? Explain.

Answer:
The marriage is valid. The irregularity in the issuance of a valid license
does not adversely affect the validity of the marriage. The marriage license
is valid because it was in fact issued by a Civil Registrar (Arts. 3 and 4, FC).

Alternative Answer:
It depends. If both or one of the parties was a member of the religious
sect of the solemnizing officer, the marriage Is valid. If none of the parties
is a member of the sect and both of them were aware of the fact, the
marriage is void. They cannot claim good faith in believing that the
solemnizing officer was authorized because the scope of the authority of
the solemnizing officer is a matter of law. If, however, one of the parties
believed in good faith that the other was a member of the sect, then the
marriage Is valid under Article 35 (2), FC. In that case, the party in good faith
is acting under a mistake of fact, not a mistake of law.

(2) Would your answer be the same if it should turn out that the marriage
license was spurious? Explain.

Answer:
No, the answer would not be the same. The marriage would be void
because of the absence of a formal requisite. In such a case, there was
actually no valid marriage license.

176
 Question No. 5: rehabilitated were unsuccessful. Can Baby ask for annulment of marriage, or
Family Code; Art. 26 legal separation? Explain.
(1) Flor and Virgillo were married to each other in Roxas City in 198O. In
1984, Flor was offered a teaching Job in Canada, which she accepted. In 1989, Answer:
she applied for and was granted Canadian citizenship. The following year, she No, Baby cannot ask for annulment of her marriage or for legal
sued for divorce from Virgilio in a Canadian court. After Virgilio was served separation because both these actions had already prescribed.
with summons, the Canadian court tried the case and decreed the divorce. While concealment of drug addiction existing at the time of
Shortly thereafter, Flor married a Canadian. Can Virgilio marry again in the marriage constitutes fraud under Art. 46 of the FC which makes the
Philippines? Explain. marriage voidable under Art. 45 of the FC, the action must, however, be
brought within 5 years from the discovery thereof under Article 47(3), FC.
Answer: Since the drug addiction of Bert was discovered by Baby in June 1989, the
No, Virgilio cannot validly remarry. His case is not covered by Article 26 action had already prescribed in June of 1994.
of the Family Code. For said Article to be applicable, the spouse who filed Although drug addiction is a ground for legal separation under Art.
for divorce must be a foreigner at the time of the marriage. Since both of 55(5) and Art. 57 of the FC requires that the action must be brought within
them were Filipinos at the time of the marriage, the divorce obtained by 5 years from the occurrence of the cause. Since Bert had been a drug addict
Flor did not capacitate Virgilio to remarry. The fact that Flor was already an from the time of the celebration of the marriage, the action for legal
alien at the time she obtained the divorce does not give Virgilio the capacity separation must have been brought not later than 23 December 1993.
to remarry under Philippine Law. Hence, Baby cannot, now, bring the action for legal separation.

Alternative Answers: 02; 1996
A. Yes, Virgilio can validly remarry. Art. 26 of the FC, merely States the
alien spouse without taking into consideration his or her nationality at the
time of the marriage. While his case is not covered by the letter of Article
26 FC, it is, however, covered by the spirit of said Article. The injustice to
the Filipino spouse sought to be cured by said Article Is present in this case.
(Department of Justice Opinion No. 134 Series of 1993).

B. Although the marriage originally involved Filipino citizens, it
eventually became a marriage between an alien and a Filipino after Flor
became a Canadian citizen. Thus, the divorce decree was one obtained by
an alien spouse married to a Filipino. Although nothing is said about
whether such divorce did capacitate Flor to remarry, that fact may as well
be assumed since the problem states that she married a Canadian shortly
after obtaining the divorce. Hence, Virgillo can marry again under Philippine
law, pursuant to Art. 26. FC which applies because Flor was already an alien
at the time of the divorce.

Annulment; Legal Separation; prescription of actions
(2) Bert and Baby were married to each other on December 23,1988. Six
months later, she discovered that he was a drug addict. Efforts to have him

177
 Question No. 6: nephew, one of the eleven children of her destitute sister in Tondo. She had
Family Code; Donations by Reason of Marriage; Effect of Declaration of been supporting the child since his birth, and being childless, she and her
Nullity husband have come to love him as their own son. They are both well-
(1) On the occasion of Digna's marriage to George, her father gave her a employed in the United States. If you were the judge, will you grant the
donation propter nuptias of a car. Subsequently, the marriage was annulled adoption? Explain.
because of the psychological immaturity of George. May Digna's father
revoke the donation and get back the car? Explain. Answer:
No, I will not grant the adoption. Tess and Gary must adopt jointly under
Answer: Art. 185 of the Family Code. They do not fall in any of the exceptions to this
No, Digna's father may not revoke the donation because Digna was not rule. In addition, both Tess and Gary must be qualified to adopt. While Tess
in bad faith, applying Art. 86(3) of the Family Code. is qualified to adopt under Article 184(3)(a) of the FC, Gary is not so qualified
because he Is an alien and he does not fall under any of the exceptions.
Alternative Answer: Hence, the adoption must be denied (Toledano v. CA, 233 SCRA 9; Republic
A. Yes, the donation is revocable. Since the ground for the annulment v. CA, 227 SCRA 401).
of the marriage is the psychological immaturity of George, the judgment
was in the nature of a declaration of nullity under Art. 36 of the FC and,
therefore, the donation may be revoked under Art. 86 (1) of the FC for the
reason that the marriage has been judicially declared void ab initio.

B. No, the donation cannot be revoked. The law provides that a
donation by reason of marriage may be revoked by the donor if. among
other cases, the marriage is judicially declared void ab initio [par. (1) Art.
86. Family Code], or when the marriage is annulled and the donee acted in
bad faith [par. (3), Id.]. Since the problem states that the marriage was
annulled and there is no intimation of bad faith on the part of the donee
Digna, the conclusion is that the donor cannot revoke the donation.

C. Yes, the donation can be revoked. The ground used in dissolving the
marriage was the psychological immaturity of George, which is not a ground
for annulment of marriage. If this term is equated with psychological
Incapacity as used in Art. 36 of the Family Code, then it is a ground for
declaration of nullity of the marriage. Consequently, par. (1) of Art. 86, FC,
is the applicable law. Since Art. 86 of the FC makes no qualification as to
who furnished the ground or who was in bad faith in connection with the
nullification of the marriage, the conclusion is that Digna's father may
revoke the donation and get back the car.

Adoption; Qualifications of Adopter
(2) Tess, a former Fillpina, now a naturalized American, and Gary, her
American husband, filed a petition for adoption of her three-year old

178
 Question No. 7: Property; Good Faith/ Bad Faith; Rights of a Possessor remove the chapel, plus damages or to require Bartolome to buy the land,
vs Usufructuary without any option to refuse to buy it. (Arts. 449 and 458, NCC). If Eric acted
Bartolome constructed a chapel on the land of Eric. What are Bartolome's in bad faith, then his bad faith cancels the bad faith of Bartolome, and both
rights if he were: will be taken to have acted in good faith. (Art. 453, NCC)
1) a possessor of the land in good faith?
3) a usufructuary of the land?
Answer:
A chapel is a useful improvement. Bartolome may remove the chapel if Answer:
it can be removed without damage to the land, unless Eric chooses to Bartolome has the right to remove the improvement if it is possible to
acquire the chapel. In the latter case, Bartolome has the right to the do so without causing damage to the property (Art. 579, NCC). He may also
reimbursement of the value of the chapel with right of retention until he is set off the improvement against any damages which the property held in
reimbursed. (Art. 448 in relation to Art. 546 & 547. NCC). usufruct suffered because of his act or the acts of his assignee. (Art. 580,
NCC).
Alternative Answer:
Assuming that Eric acted in good faith, Bartolome's rights will depend 4) a lessee of the land?
upon what option Eric chooses. Eric, the owner of the land, may choose to
acquire the chapel, which Is a useful expense or to sell the land to the Answer:
builder (Bartolome). The owner of the land, as lessor, can acquire the improvement by
If Eric chooses to acquire the chapel, he has the right to paying for one-half of its value. Should the lessor refuse to reimburse said
reimbursement for useful expenses, with a right of retention until paid. amount, the lessee may remove the improvement, even though the
If Eric chooses to sell the land to Bartolome. Bartolome may refuse principal thing may suffer damage thereby (Art. 1678. NCC).
to buy the land if the value of the land is considerably more than the value
of the building, in which case, there will be a forced leased between them.

Additional Answer:
If Eric acted in bad faith, then Bartolome has the right of absolute
removal of the chapel, plus damages. However, if Eric chooses to acquire
the chapel, then Bartolome has the right to reimbursement, plus payment
of damages, with right of retention (Art. 454 in relation of Art. 447. NCC)


2) a possessor of the land in bad faith?

Answer:
Bartolome, under Art. 449 of the NCC, loses whatever he built, without
any right to indemnity.

Alternative Answer:
It is the owner of the land who has the right to acquire the chapel
without paying indemnity, plus damages, or to require Bartolome to

179
 Question No. 8: Property; Easements; Right of Way; Requisites The requisites for a compulsory easement of right of way are: (a) the
David is the owner of the subdivision in Sta. Rosa, Laguna, without an dominant estate is surrounded by other immovables and is without an
access to the highway. When he applied for a license to establish the adequate outlet to a public street or highway; (b) proper indemnity must
subdivision, David represented that he will purchase a rice field located be paid; (c) the isolation must not be due to the acts of the owner of the
between his land and the highway, and develop it into an access road. But, dominant estate; and (d) the right of way claimed is at a point least
when the license was already granted, he did not bother to buy the rice field, prejudicial to the servient estate and, insofar as is consistent with this rule,
which remains unutilized until the present. Instead, he chose to connect his where the distance to the street or highway is shortest.
subdivision with the neighboring subdivision of Nestor, which has an access
to the highway. Nestor allowed him to do this, pending negotiations on the (2) Is David entitled to a right of way in this case? Why or why not?
compensation to be paid. When they failed to arrive at an agreement, Nestor
built a wall across the road connecting with David's subdivision. David filed a Answer:
complaint in court, for the establishment of an easement of right of way No, David is not entitled to the right of way being claimed. The isolation
through the subdivision of Nestor which he claims to be the most adequate of his subdivision was due to his own act or omission because he did not
and practical outlet to the highway. develop into an access road the rice field which he was supposed to
purchase according to his own representation when he applied for a license
(1) What are the requisites for the establishment of a compulsory to establish the subdivision (Floro v. Llenado, 244 SCRA713).
easement of a right of way?

Answer:
Art, 649, NCC. The owner, or any person who by virtue of a real right
may cultivate or use any immovable which is surrounded by other
immovables pertaining to other persons and without adequate outlet to a
public highway, is entitled to demand a right of way through the
neighboring estates, after payment of the property indemnity.
Should this easement be established in such a manner that its use
may be continuous for all the needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the
cultivation of the estate surrounded by others and for the gathering of its
crops through the servient estate without a permanent way, the indemnity
shall consist in the payment of the damage cause by such encumbrance.
This easement is not compulsory If the isolation of the Immovable
is due to the proprietor's own acts. (564a).
The easement of right of way shall be established at the point least
prejudicial to the servient estate, and insofar as consistent with this rule,
where the distance from the dominant estate to a public highway may be
the shortest (Art. 650, NCC: Vda. de Baltazar v. CA. 245 SCRA 333)

Alternative Answer:

180
 Question No. 10: written, and did not cover his properties acquired, which should be by
intestate succession. Manuel claims otherwise. Who is correct? Explain.
Succession; Wills; Formalities; Holographic Wills; Effect of
Unauthenticated Insertions and Cancellations Answer:
(1) Vanessa died on April 14. 1980. leaving behind a holographic will Manuel is correct because under Art. 793, NCC, property acquired after
which is entirely written, dated and signed in her own handwriting. However, the making of a will shall only pass thereby, as if the testator had possessed
it contains Insertions and cancellations which are not authenticated by her it at the time of making the will, should it expressly appear by the will that
signature. For this reason, the probate of Vanessa's will was opposed by her such was his intention. Since Alfonso's intention to devise all properties he
relatives who stood to inherit by her intestacy. May Vanessa's holographic owned at the time of his death expressly appears on the will, then all the 20
will be probated? Explain. parcels of land are included in the devise.

Answer: 03; 1996
Yes, the will as originally written may be probated. The insertions and
alterations were void since they were not authenticated by the full
signature of Vanessa, under Art. 814, NCC. The original will, however,
remains valid because a holographic will is not invalidated by the
unauthenticated insertions or alterations (Ajero v. CA, 236 SCRA 468).

Alternative Answer:
It depends. As a rule, a holographic will is not adversely affected by
Insertions or cancellations which were not authenticated by the full
signature of the testator (Ajero v. CA, 236 SCRA 468). However, when the
insertion or cancellation amounts to revocation of the will, Art.814 of the
NCC does not apply but Art. 830, NCC. Art. 830 of the NCC does not require
the testator to authenticate his cancellation for the effectivity of a
revocation effected through such cancellation (Kalaw v. Relova, 132 SCRA
237). In the Kalaw case, the original holographic will designated only one
heir as the only substantial provision which was altered by substituting the
original heir with another heir. Hence, if the unauthenticated cancellation
amounted to a revocation of the will, the will may not be probated because
it had already been revoked.

Succession; Wills; Testamentary Intent
(2) Alfonso, a bachelor without any descendant or ascendant, wrote a last
will and testament in which he devised." all the properties of which I may be
possessed at the time of my death" to his favorite brother Manuel. At the
time he wrote the will, he owned only one parcel of land. But by the time he
died, he owned twenty parcels of land. His other brothers and sisters insist
that his will should pass only the parcel of land he owned at the time it was

181
 Question No. 11: Succession; Barrier Between Illegitimate and
Legitimate Relatives
Cristina, the illegitimate daughter of Jose and Maria, died Intestate,
without any descendant or ascendant. Her valuable estate is being claimed
by Ana, the legitimate daughter of Jose, and Eduardo, the legitimate son of
Maria. Is either, both, or neither of them entitled to inherit? Explain.

Answer:
Neither Ana nor Eduardo is entitled to inherit of ab intestato from
Cristina. Both are legitimate relatives of Cristina's illegitimate parents and
therefore they fall under the prohibition prescribed by Art. 992, NCC
(Manuel v. Ferrer, 242 SCRA 477; Diaz v. Court of Appeals, 182 SCRA 427).

182
 1995 BAR QUESTIONS
NOTE: It is recommended by the Committee that any two (2) distinctions

should be given full credit.


Q01
2. Can there be (a) an easement over a usufruct? (b) a usufruct over an
(Property; Easement; Usufruct)
easement? (c) an easement over another easement? Explain.
1. What is easement? Distinguish easement from usufruct.


ANSWER:
ANSWER:
(a) There can be no easement over a usufruct. Since an easement may
An EASEMENT or servitude is an encumbrance imposed upon an
be constituted only on a corporeal immovable property, no easement
immovable for the benefit of another immovable belonging to a
may be constituted on a usufruct which is not a corporeal right.
different owner. (Art. 613, NCC)
(b) There can be no usufruct over an easement. While a usufruct

maybe created over a right, such right must have an existence of its
USUFRUCT gives a right to enjoy the property of another with the
own independent of the property. A servitude cannot be the object
obligation of preserving its form and substance, unless the title
of a usufruct because it has no existence independent of the property
constituting it or the law otherwise provides. (Art. 562, NCC).
to which It attaches.


ALTERNATIVE ANSWER:

Easement is an encumbrance imposed upon an immovable for the

benefit of another immovable belonging to a different owner in which
ALTERNATIVE ANSWERS:
case it is called real or predial easement, or for the benefit of a
There cannot be a usufruct over an easement since an easement
community or group of persons in which case it is known as a personal
presupposes two (2) tenements belonging to different persons and the
easement.
right attaches to the tenement and not to the owner. While a usufruct

gives the usufructuary a right to use, right to enjoy, right to the
The distinctions between usufruct and easement are:
fruits, and right to possess, an easement gives only a limited use of the
a) Usufruct includes all uses of the property and for all purposes,
servient estate.
including jus fruendi. Easement is limited to a specific use.

b) Usufruct may be constituted on immovable or movable property.
However, a usufruct can be constituted over a property that has in its
Easement may be constituted only on an immovable property.
favor an easement or one burdened with servitude.
c) Easement is not extinguished by the death of the owner of the

dominant estate while usufruct is extinguished by the death of
The usufructuary will exercise the easement during the period of
the usufructuary unless a contrary intention appears.
usufruct.
d) An easement contemplates two (2) estates belonging to two (2)

different owners; a usufruct contemplates only one property (real or
(c) There can be no easement over another easement for the same
personal) whereby the usufructuary uses and enjoys the property as
reason as in (a). An easement, although it is a real right over an
well as its fruits, while another owns the naked title during the period
immovable, is not a corporeal right. There is a Roman maxim
of the usufruct.
which says that: There can be no servitude over another servitude.
e) A usufruct may be alienated separately from the property to

which it attaches, while an easement cannot be alienated
separately from the property to which it attaches.

183
 Q03
(Persons and Family Relations; Adoption; Citizenship) ALTERNATIVE ANSWER:
In 1980, spouses Felisa and George, both Filipino citizens, migrated to the No, my answer will be different because in that case, while
US. 6 years later, they became American citizens. In 1989, they jointly filed Felisa is qualified to adopt, the petition for joint adoption cannot be
a petition before the RTC Malabon seeking to adopt Gilda, the 10 year old granted. It should be converted into a petition only by Felisa. It
daughter of Helen, Felisa’s younger sister. The government opposed the cannot be granted as a joint petition but can be granted as an
petition on the ground that Felisa and George were disqualified since they individual petition.
were already American citizens.
3. Wil your answer be the same if Felisa were the illegitimate parent
1. How will you resolve the petition? Explain. of Gilda? Explain.

ANSWER: ANSWER:
The petition should be denied because George is not qualified to No, the answer will be different. in such a case, Felisa may
adopt. As husband and wife, they have to adopt jointly under Article adopt alone. Her case falls under the exception to the rule in Art. 185
185 of the Family Code. Their case does not fall in any of the requiring husband and wife to adopt jointly, because she seeks to
exceptions where a spouse may adopt alone. In Republic v. Toledano adopt her own illegitimate child. She is qualified to adopt alone under
(233 SCRA 9), the Court ruled that both spouses must be qualified Art. 184 because she is a former Filipino citizen who seeks to adopt a
when required by law to adopt jointly. Being aliens, Felisa and George relative by consanguinity. Hence, the court may decree the adoption
are as a rule disqualified to adopt under Article 185 of the Family of Gilda by Felisa.
Code. While Felisa falls to be one of the exceptions under this rule,
being a former Filipino who seeks to adopt a relative by 4. Going back to the basic facts, suppose Felisa acquired her American
consanguinity, George does not. He does not seek to adopt his citizenship during the pendency of the petition for adoption, will
relative by consanguinity, or a legitimate child of his spouse and your answer be the same as in Question Number 1? Explain.
neither is his spouse a Filipino. One of the spouses being disqualified
to adopt, the petition has to be denied. ANSWER:
Yes, the answer will be the same as in Number 1. The adopter
ALTERNATIVE ANSWER: must be qualified to adopt not only on the date of filing the case, but
Since the adopters are former Filipino citizens and the child also on the date of judgment.
sought to be adopted is a relative by consanguinity of one of them,
and since the rule of joint adoption by spouses is duly complied with,
the petition must be granted.

2. Will your answer be the same if George were a natural-born
American citizen? Explain.


ANSWER:
The answer will be the same if George were a natural born
American. He will still not fall in any of the exceptions to the
disqualified aliens.

184
 Q06
(Persons and Family Relations; Property Relations; Marriage Settlements) 3) Who are Kevin's heirs?
On 10 September 1988 Kevin, a 26-year old businessman, married Karla, a
winsome lass of 18. Without the knowledge of their parents or legal ANSWER:
guardians, Kevin and Karla entered into an ante - nuptial contract the day Karla and Luis are the intestate heirs of Kevin.
before their marriage stipulating that conjugal partnership of gains shall
govern their marriage. At the time of their marriage Kevin's estate was 4) How much is each of Kevin’s heirs entitled to inherit?
worth 50 Million while Karla's was valued at 2 Million. A month after their
marriage Kevin died in a freak helicopter accident. He left no will, no debts, ANSWER:
no obligations. Surviving Kevin, aside from Karla, are his only relatives: his They are entitled to share the estate equally under Article
brother Luis and first cousin Lilia. 1001 of the NCC. Therefore. Karla gets 13 Million and Luis gets 13
Million.
1) What property Relations governed the marriage of Kevin and Karla?
Explain.

ANSWER:
Since the marriage settlement was entered into without the
consent and without the participation of the parents (they did not
sign the document), the marriage settlement is invalid applying Art.
78, F.C. which provides that a minor who according to law may
contract marriage may also enter into marriage settlements but
they shall be valid only if the person who may give consent to
the marriage are made parties to the agreement. (Karla was still a
minor at the time the marriage settlement was executed in
September 1988 because the law, R.A. 6809, reducing the age of
majority to 18 years took effect on 18 December 1989). The
marriage settlement being void, the property Relations governing
the marriage is, therefore, absolute community of property, under
Art. 75 of the FC.

2) Determine the value of the estate of Kevin.

ANSWER:
All the properties which Kevin and Karla owned at the time
of marriage became community property which shall be divided
equally between them at dissolution. Since Kevin owned 50 Million
and Karla. 2 Million, at the time of the marriage, 52 Million
constituted their community property. Upon the death of Kevin, the
community was dissolved and half of the 52 Million or 26 Million is
his share in the community. This 26 Million therefore is his estate.

185
 Q07
(Persons and Family Relations; Paternity & Filiation; Proofs; Limitations; 3. Can Danilo inherit from Abraham in representation of his father
Adopted Child) Carlos? Explain.
Abraham died intestate on 7 January 1994 survived by his son Braulio.
Abraham's older son Carlos died on 14 February 1990. ANSWER:
No, he cannot. Danilo cannot represent Carlos as the
Danilo who claims to be an adulterous child of Carlos intervenes in the latter's adopted child in the inheritance of Abraham because
proceedings for the settlement of the estate of Abraham in representation adoption did not make Danilo a legitimate grandchild of Abraham.
of Carlos. Danilo was legally adopted on 17 March 1970 by Carlos with the Adoption is personal between Carlos and Danilo. He cannot also
consent of the latter's wife. represent Carlos as the latter's illegitimate child because in such
case he is barred by Art. 992 of the NCC from inheriting from
1. Under the Family Code, how may an illegitimate filiation be proved? his illegitimate grandfather Abraham.
Explain.
ALTERNATIVE ANSWER:
ANSWER: An adopted child's successional rights do not include the
Under Art. 172 in relation to Art. 173 and Art. 175 of the FC, right to represent his deceased adopter in the inheritance of the
the filiation o illegitimate children may be established in the same latter's legitimate parent, in view of Art. 973 which provides that in
way and by the same evidence as legitimate recognition of an order that representation may take place, the representative must
illegitimate child can be brought at any children. Art. 172 provides himself be capable of succeeding the decedent. Adoption by itself
that the filiation of legitimate children is established by any of the did not render Danilo an heir of the adopter's legitimate parent.
following: Neither does his being a grandchild of Abraham render him an
(1) the record of birth appearing in the civil register or a final heir of the latter because as an illegitimate child of Carlos, who was
Judgment; or a legitimate child of Abraham, Danilo is incapable of succeeding
(2) an admission of legitimate filiation in a public document Abraham under Art. 992 of the Code.
or a private handwritten instrument and signed by the
parent concerned.

In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
(1) the open and continuous possession of the status of
a legitimate child; or
(2) any other means allowed by the Rules of Court and
special laws.

2. As lawyer for Danilo, do you have to prove Danilo's illegitimate
filiation? Explain.
ANSWER:
No. Since Danilo has already been adopted by Carlos, he
ceased to be an illegitimate child. An adopted child acquires all the
rights of a legitimate child under Art, 189 of the FC.

186
 Q09 found without conscious effort to find it, and the strict view would
(Hidden Treasure) tend to render the codal provision in question illusory.
Tim came into possession of an old map showing where a purported cache
of gold bullion was hidden. Without any authority from the government Tim 2. Suppose Tirso and Tessie were married on 2 August 1988 without
conducted a relentless search and finally found the treasure buried in a new executing any ante-nuptial agreement. One year after their
river bed formerly part of a parcel of land owned by spouses Tirso and marriage, Tirso while supervising the clearing of Tessie’s inherited
Tessie. The old river which used to cut through the land of spouses Ursula land upon the latter’s request, accidentally found the treasure not
and Urbito changed its course through natural causes. in the new river bed but on the property of Tessie. To whom shall
the treasure belong? Explain.
1. To whom shall the treasure belong? Explain.
ANSWER:
ANSWER: Since Tirso and Tessie were married before the effectivity of
The treasure was found in a property of public dominion, the the Family Code, their property relation is governed by conjugal
new river bed. Since Tim did not have authority from the partnership of gains. Under Article 54 of the Civil Code, the share of
government and, therefore, was a trespasser, he is not entitled the hidden treasure which the law awards to the finder of the
to the one-half share allotted to a finder of hidden treasure. All of it proprietor belongs to the conjugal partnership of gains. The one-half
will go to the State. In addition, under Art. 438 of the NCC in order share pertaining to Tessie as owner of the land, and the one-half
that the finder be entitled to the 1/2 share, the treasure must be share pertaining to Tirso as finder of the treasure, belong to the
found by chance, that is by sheer luck. In this case, since Tim found conjugal partnership of gains.
the treasure not by chance but because he relentlessly searched for
it, he is not entitled to any share in the hidden treasure.

ALTERNATIVE ANSWER:
The law grants a one-half share to a finder of hidden treasure
provided he is not a trespasser and the finding is by chance. It is
submitted that Tim is not a trespasser despite his not getting
authority from the government, because the new river bed where he
found the treasure is property for public use (Art. 420 NCC), to which
the public has legitimate access. The question, therefore, boils down
to whether or not the finding was by chance in view of the fact that
Tim “conducted a relentless search" before finding the treasure. The
strict or literal view holds that deliberate or intentional search
precludes entitlement to the one-half share allotted by law to the
finder since the phrase “by chance" means "by accident", meaning an
unexpected discovery. The liberal view, however, would sustain Tim's
right to the allocated share interpreting the phrase in question as
meaning "by a stroke of good fortune", which does not rule out
deliberate or intentional search. It is submitted that the liberal view
should prevail since in practical reality, hidden treasure is hardly ever

187
 Q13 Q14
(Property; Immovable Property) (Persons and Family Relations; Marriage; Annulment)
Salvador, a timber concessionaire, built on his lot a warehouse where he Yvette was found to be positive for HIV virus, considered sexually
processes and stores his timber for shipment. Adjoining the warehouse transmissible, serious and incurable. Her boyfriend Joseph was aware of her
is a furniture factory owned by NARRAMIX of which Salvador is a condition and yet married her. After two (2) years of cohabiting with Yvette,
majority stockholder. NARRAMIX leased space in the warehouse where and in his belief that she would probably never be able to bear him a healthy
it placed its furniture-making machinery. child, Joseph now wants to have his marriage with Yvette annulled. Yvette
opposes the suit contending that Joseph is estopped from seeking
1. How would you classify the furniture-making machinery as annulment of their marriage since he knew even before their marriage that
property under the Civil Code? Explain. she was afflicted with HIV virus.

ANSWER: Can the action of Joseph for annulment of his marriage with Yvette
The furniture-making machinery is movable property prosper? Discuss fully.
because it was not installed by the owner of the tenement. To
become immovable under Art. 415 (5) of the NCC, the ANSWER:
machinery must be installed by the owner of the tenement. No, Joseph knew that Yvette was HIV positive at the time of the marriage.
He is, therefore, not an injured party. The FC gives the right to annul the
ALTERNATIVE ANSWER: marriage only to an injured party. [Art. 47 (5), FC]
It depends on the circumstances of the case. If the machinery
was attached in a fixed manner, in such a way that it cannot be ALTERNATIVE ANSWER:
separated from the tenement without breaking the material or The action for annulment can prosper because the prescriptive period of
causing deterioration thereof, it is immovable property [Art. 415 five (5) years has not yet lapsed. [Art. 45 (6), FC].
(3), NCC]. However, if the machinery can be transported from
place to place without impairment of the tenement to which
they were fixed, then it is movable
property. [Art. 416 (4), NCC]

2. Suppose the lease contract between Salvador and NARRAMIX
stipulates that at the end of the lease the machinery shall become
the property of the lessor, will your answer be the same? Explain.

ANSWER:
It is immovable property. When there is a provision in the
lease contract making the lessor, at the end of the lease, owner
of the machinery installed by the lessee, the said machinery is
considered to have been installed by the lessor through the lessee
who acted merely as his agent. Having been installed by the owner
of the tenement, the machinery became immovable .under Art. 415
of the NCC. (Davao Sawmill v. Castillo 61 Phil. 709)

188
 Q15 Q17
(Persons and Family Relations, Succession of Aliens) (Trust)
Michelle, the French daughter of Penreich, a German national, died in In 1960, Maureen purchased two lots in a plush subdivision registering Lot
Spain leaving real properties in the Philippines as well as valuable 1 in her name and Lot 2 in the name of her brother Walter with the latter's
personal properties in Germany. consent. The idea was to circumvent a subdivision policy against the
acquisition of more than one lot by one buyer. Maureen constructed a
1. What law determines who shall succeed the deceased? Explain your house on Lot 1 with an extension on Lot 2 to serve as a guest house. In 1987,
answer and give its legal basis. Walter who had suffered serious business losses demanded that Maureen
remove the extension house since the lot on which the extension was built
ANSWER: was his property. In 1992, Maureen sued for the reconveyance to her of Lot
Assuming that the estate of the decedent is being settled in 2 asserting that a resulting trust was created when she had the lot
the Philippines, the national law of the decedent (French law) shall registered in Walter's name even if she paid the purchase price. Walter
govern in determining who will succeed to his estate. The legal basis opposed the suit arguing that assuming the existence of a resulting trust the
is Art. 16 par. 2, NCC. action of Maureen has already prescribed since ten years have already
elapsed from the registration of the title in his name. Decide. Discuss fully.
ALTERNATIVE ANSWER:
French law shall govern the distribution of his real properties ANSWER:
in the Philippines except when the real property is land which may be This is a case of an implied resulting trust. If Walter claims to have
transmitted to a foreigner only by hereditary succession. acquired ownership of the land by prescription or if he anchors his defense
on extinctive prescription, the ten year period must be reckoned from 1987
2. What law regulates the distribution of the real properties in the when he demanded that Maureen remove the extension house on Lot No. 2
Philippines? Explain your answer and give its legal basis. because such demand amounts to an express repudiation of the trust and it
was made known to Maureen. The action for reconveyance filed in 1992 is
ANSWER: not yet barred by prescription. (Spouses Huang v. Court of Appeals, Sept. 13,
The distribution of the real properties in the Philippines shall 1994).
be governed by French law. The legal basis is Art. 16, NCC).


3. What law governs the distribution of the personal properties in
Germany? Explain your answer and give its legal basis.

ANSWER:
The distribution of the personal property in Gernmany shall
be governed by French law. The legal basis is Art. 16, NCC).

189
 Q18 irregularity which may subject the solemnizing officer to
(Persons and Family Relations; Marriage) sanctions.
Isidro and Irma, Filipinos, both 18 years of age, were passengers of Flight
No. 317 of Oriental Airlines. The plane they boarded was of Philippine ALTERNATIVE ANSWER:
registry. While en route from Manila to Greece some passengers hijacked Considering that the solemnizing officer has no authority to
the plane, held the chief pilot hostage at the cockpit and ordered him to fly perform the marriage because under Art. 7 the law authorizes only
instead to Libya. During the hijacking Isidro suffered a heart attack and was the airplane chief, the marriage is void, hence, a, c, and d are
on the verge of death. Since Irma was already eight months pregnant by immaterial.
Isidro, she pleaded to the hijackers to allow the assistant pilot to solemnize
her marriage with Isidro. Soon after the marriage, Isidro expired. As the 2. Does Irma have any l rights at all? Discuss fully.
plane landed in Libya Irma gave birth. However, the baby died a few
minutes after complete delivery. ANSWER:
Irma succeeded to the estate of Isidro as his surviving spouse
Back in the Philippines Irma immediately filed a claim for inheritance. The to the estate of her legitimate child. When Isidro died, he was
parents of Isidro opposed her claim contending that the marriage between succeeded by his surviving wife Irma, and his legitimate unborn child.
her and Isidro was void ab initio on the following grounds: (a) they had not They divided the estate equally between them, the child excluding
given their consent to the marriage of their son; (b) there was no marriage the parents of Isidro. An unborn child is considered born for all
license; (c) the solemnizing officer had no authority to perform the purposes favorable to it provided it is born later. The child was
marriage; and, (d) the solemnizing officer did not file an affidavit of considered born because, having an intra-uterine life of more than 7
marriage with the proper civil registrar. months, it lived for a few minutes after its complete delivery. It was
legitimate because it was born within the valid marriage of the
1. Resolve each of the contentions ([a] to [d]) raised by the parents of parents. Succession is favorable to it. When the child died, Irma
Isidro. Discuss fully. inherited the share of the child. However, the share of the child in the
hands of Irma is subject to reserve truncal for the benefit of the
ANSWER: relatives of the child within the third degree of consanguinity and
(a) The fact that the parents of Isidro and of Irma did not give their who belong to the line of Isidro.
consent to the marriage did not make the marriage void ab initio.
The marriage is merely voidable under Art 45 of the FC. ALTERNATIVE ANSWER:
(b) Absence of marriage license did not make the marriage void ab If the marriage is void, Irma has no successional rights with
initio. Since the marriage was solemnized in articulo mortis, it respect to Isidro but she would have successional rights with respect
was exempt from the license requirement under Art. 31 of the to her child.
FC.
(c) On the assumption that the assistant pilot was acting for and in
behalf of the airplane chief who was under disability, and by
reason of the extraordinary and exceptional circumstances of the
case [ie. hostage situation), the marriage was solemnized by an
authorized officer under Art. 7 (3) and Art. 31. of the FC.
(d) Failure of the solemnizing officer to file the affidavit of marriage
did not affect the validity of the marriage. It is merely an

190
 1994 BAR QUESTIONS B. CONFLICT (Cognovit; Borrowing Statute; Characterization)
In Private International Law (Conflict of Laws) what is: 1)

Cognovit? 2) A borrowing statute? 3) Characterization?
A. PERSONS (Opinions, Court Decisions )
SUGGESTED ANSWER:
1) Are decisions of the Court of Appeals considered laws?
1) COGNOVIT
SUGGESTED ANSWER: No, but decisions of the Court of
a) COGNOVIT is a confession of judgment whereby a
Appeals may serve as precedents for inferior courts on points
portion of the complaint is confessed by the defendant who
of law not covered by any Supreme Court decision, and a
denies the rest thereof (Philippine law Dictionary, 3rd Ed.)
ruling of the Court of Appeals may become a doctrine.
(Ocampo v. Florenciano, L-M 13553, 2/23/50).
(Miranda vs.. Imperial 77 Phil. 1066).
b) COGNOVIT is a "statement of confession" Oftentimes,
ALTERNATIVE ANSWER: No. Decisions of the Court of
it is referred to as a "power of attorney" or simply as a
Appeals merely have persuasive, and therefore no
"power", it is the written authority of the debtor and his
mandatory effect. However, a conclusion or pronouncement
direction to the clerk of the district court, or justice of the
which covers a point of law still undecided may still serve as
peace to enter judgment against the debtor as stated
judicial guide and it is possible that the same maybe raised to
therein. (Words and Phrases, vol. 7, pp. 115-166).
the status of doctrine. If after it has been subjected to test in
c) COGNOVIT is a plea in an action which acknowledges
the crucible of analysis, the Supreme Court should find that
that the defendant did undertake and promise as the plaintiff
it has merits and qualities sufficient for its consideration as a
in its declaration has alleged, and that it cannot deny that it
rule of jurisprudence (Civil Code, Paras).
owes and unjustly detains from the plaintiff the sum claimed
2) What are the binding effects of an obiter dictum and a
by him in his declaration, and consents that judgment be
dissenting opinion?
entered against the defendant for a certain sum. [Words and
SUGGESTED ANSWER: None. Obiter dictum and opinions
Phrases, vol. 7, pp. 115-166).
are not necessary to the determination of a case. They are
d) COGNOVIT is a note authorizing a lawyer for
not binding and cannot have the force of official precedents.
confession of judgment by defendant.
It is as if the Court were turning aside from the main topic of

the case to collateral subjects: a dissenting opinion affirms or
2) BORROWING STATUTE
overrules a claim, right or obligation. It neither disposes nor
Law of the state or jurisdiction used by another state in
awards anything it merely expresses the view of the
deciding conflicts questioned involved in the choice of law
dissenter. (Civil Code, Paras]
(Black's Law Dictionary, 5th ed. 1979).
3) How can a decision of the Supreme Court be set aside?

SUGGESTED ANSWER: A decision of a division of the
3) CHARACTERIZATION
Supreme Court maybe set aside by the Supreme Court sitting
a) "CHARACTERIZATION" is otherwise called
en banc, a Supreme Court decision may be set aside by a
"classification" or "qualification." It is the process of assigning
contrary ruling of the Supreme Court itself or by a corrective
a disputed question to its correct legal category (Private
legislative act of Congress, although said laws cannot
International Law, Salonga).
adversely affect those favored prior to the Supreme Court
b) "CHARACTERIZATION" is a process in determining
decision. [Civil Code, Paras)
under what category a certain set of facts or rules fall. (Paras,

Conflict of Laws, p. 94. 1984 ed.)

191
C. CONFLICT (Forum non-conveniens; Long-arm statute) D. CONFLICT (Theory; significant relationships theory)
1) What is the doctrine of Forum non conveniens? Able, a corporation domiciled in State A, but, doing business in
2) What is a "long arm statute"? the Philippines, hired Eric, a Filipino engineer, for its project in State
SUGGESTED ANSWER: B. In the contract of employment executed by the parties in State B,
1) FORUM NON CONVENIENS it was stipulated that the contract could be terminated at the
a) FORUM NON CONVENIENS is a principle in Private company's will, which stipulation is allowed in State B. When Eric was
International Law that where the ends of justice strongly summarily dismissed by Able, he sued Able for damages in the
indicate that the controversy may be more suitably tried Philippines. Will the Philippine court apply the contractual
elsewhere, then jurisdiction should be declined and the stipulation?
parties relegated to relief to be sought in another forum. SUGGESTED ANSWER: Using the "SIGNIFICANT
(Moreno. Philippine Law Dictionary, p. 254, 1982 ed.). RELATIONSHIPS THEORY", there are contacts significant to
b) Where in a broad sense the ends of justice strongly the Philippines. Among these are that the place of business
indicate that the controversy may be more suitably tried is the Philippines, the employee concerned is a Filipino and
elsewhere, then jurisdiction should be declined and the the suit was filed in the Philippines, thereby justifying the
parties relegated to relief to be sought in another forum. application of Philippine law. In the American Airlines case
(Handbook on Private International Law, Aruego). the Court held that when what is involved is PARAMOUNT
c) FORUM NON CONVENIENS means simply that a court STATE INTEREST such as the protection of the rights of
may resist imposition upon its jurisdiction even when Filipino laborers, the court can disregard choice of forum and
jurisdiction is authorized by the letter of a general venue choice of law. Therefore, the Philippine Court should not
statute. (Salonga. Private International Law. p, 51. 1967 ed.) apply the stipulation in question.
d) Forum non conveniens is a doctrine whereby a court ALTERNATIVE ANSWER: No, lex fori should be applied
of law having full Jurisdiction over a case brought in a proper because the suit is filed in Philippine courts and Eric was hired
venue or district declines to determine the case on its merits in the Philippines. The Philippine Constitution affords full
because Justice would be better served by the trial over the protection to labor and the stipulation as to summary
case in another jurisdiction. (Webster's Dictionary) dismissal runs counter to our fundamental and statutory
laws.
2) LONG ARM STATUTE
a) LONG ARM STATUTE is a legislative act which provides
for personal jurisdiction, via substituted service or process,
over persons or corporations which are nonresidents of the
state and which voluntarily go into the state, directly or by
agent or communicate with persons in the state for limited
purposes, inactions which concern claims relating to
performance or execution of those purposes (Black's Law
Dictionary, 5th Ed. 1979).
b) Long arm statute refers simply to authorized
substituted service.

192
E. PERSONS (RESCISSION OF ADOPTION) therefore no longer a minor, it is not Carol but Bing herself
Parental Authority; Rescission of Adoption (1994) In 1975, Carol who can petition the court for judicial rescission of the
begot a daughter Bing, out of wedlock. When Bing was ten years old, adoption, provided she can show a ground for disinheritance
Carol gave her consent for Bing's legal adoption by Norma and of an ascendant.
Manuel, which was granted by the court in 1990. In 1991, Carol ALTERNATIVE ANSWER: Carol may file an action to
learned that Norma and Manuel were engaged in a call-girl-ring that deprive Norma of parental authority under Article 231 of the
catered to tourists. Some of the girls lived with Norma and Manuel. Family Code or file an action for the rescission of the
Carol got Bing back, who in the first place wanted to return to her adoption under Article 191 in relation to Article 231 (2) of the
natural mother. Family Code.
1) Who has a better right to the custody of Bing, Carol or Norma?
SUGGESTED ANSWER: It depends on whether or not Bing
was at least 18 years old at the time Carol asserts the
prerogative to take custody of Bing. If she was at least 18
years old, then she is no longer under parental authority and
neither Carol nor Norma can assert the prerogative to take
custody. However, if she was less than 18 years old, then
Norma has a better right since the adoption by Norma of Bing
terminates the parental authority of Carol over Bing.
ALTERNATIVE ANSWER: The natural mother, Carol,
should have the better right in light of the principle that the
child's welfare is the paramount consideration in custody
rights. Obviously, Bing's continued stay in her adopting
parents' house, where interaction with the call girls is
inevitable, would be detrimental to her moral and spiritual
development. This could be the reason for Bing's expressed
desire to return to her natural mother. It should be noted,
however, that Bing is no longer a minor, being 19 years of age
now. It is doubtfu1 that a court can still resolve the question
of custody over one who is sui juris and not otherwise
incapacitated.
2) Aside from taking physical custody of Bing, what legal actions
can Carol take to protect Bing?
SUGGESTED ANSWER: On the assumption that Bing is
still a minor or otherwise incapacitated, Carol may petition
the proper court for resolution or rescission of the decree of
adoption on the ground that the adopting parents have
exposed, or are exposing, the child to corrupt influence,
tantamount to giving her corrupting orders or examples. She
can also ask for the revesting in her of parental authority over
Bing. If However, Bing is already 19 years of age and

193
F. PERSONS (Family Home; Dwelling House) G. PERSONS (Marriage; Legal Separation; Grounds; Prescriptive
In 1991, Victor established judicially out of conjugal property, a Period)
family home in Manila worth P200.000.00 and extrajudicially a Rosa and Ariel were married in the Catholic Church of Tarlac,
second family home in Tagaytay worth P50.000.00. Victor leased the Tarlac on January 5. 1988. In 1990, Ariel went to Saudi Arabia to work.
family home in Manila to a foreigner. Victor and his family transferred There, after being converted into Islam, Ariel married Mystica, Rosa
to another house of his in Pasig. Can the two family homes be the learned of the second marriage of Ariel on January 1, 1992 when Ariel
subject of execution on a judgment against Victor's wife for non- returned to the Philippines with Mystica. Rosa filed an action for legal
payment of the purchase in 1992 of household appliances? separation on February 5, 1994.
SUGGESTED ANSWER: The two (2) so-called family 1) Does Rosa have legal grounds to ask for legal separation?
homes can be the subject of execution. Neither of the abodes SUGGESTED ANSWER: Yes, the abandonment of Rosa by
are considered family homes because for purposes of Ariel for more than one (1) year is a ground for legal
availing the benefits under the Family Code, there can only separation unless upon returning to the Philippines, Rosa
be one (1) family home which is defined as the "dwelling agrees to cohabit with Ariel which is allowed under the
house" where the husband and the wife and their family Muslim Code. In this case, there is condonation.
actually "reside" and the land on which it is situated. (Arts. ALTERNATIVE ANSWER: Yes. The contracting of a
152 and 161, Family Code) subsequent bigamous marriage whether in the Philippines or
abroad is a ground for legal separation under Article 55(7) of
the Family Code. Whether the second marriage is valid or
not, Ariel having converted into Islam, is immaterial.
2) Has the action prescribed?
SUGGESTED ANSWER: No. Under Article 57 of the Family
Code, the aggrieved spouse must file the action within five
(5) years from the occurrence of the cause. The subsequent
marriage of Ariel could not have occurred earlier than 1990,
the time he went to Saudi Arabia. Hence, Rosa has until 1995
to bring the action under the Family Code.

194
H. PERSONS (Marriage; Requisites; Solemnizing Officers) I. PERSONS (Property Relations – ACP)
1) The complete publication of the Family Code was made on Paulita left the conjugal home because of the excessive drinking
August 4, 1987. On September 4, 1987, Junior Cruz and Gemma Reyes of her husband, Alberto. Paulita, out of her own endeavor, was able
were married before a municipal mayor. Was the marriage valid? to buy a parcel of land which she was able to register under her name
SUGGESTED ANSWER: Yes, the marriage is valid. The with the addendum "widow." She also acquired stocks in a listed
Family Code took effect on August 3, 1988. At the time of the corporation registered in her name. Paulita sold the parcel of land to
marriage on September 4, 1987, municipal mayors were Rafael, who first examined the original of the transfer certificate of
empowered to solemnize marriage under the Civil Code of title.
1950. 1) Has Alberto the right to share in the shares of stock acquired
2) Suppose the couple got married on September 1, 1994 at the by Paulita?
Manila Hotel before the Philippine Consul General to Hongkong, who SUGGESTED ANSWER: Yes. The Family Code provides
was on vacation in Manila. The couple executed an affidavit that all property acquired during the marriage, whether the
consenting to the celebration of the marriage at the Manila Hotel. Is acquisition appears to have been made, contracted or
the marriage valid? registered in the name of one or both spouses, is presumed
SUGGESTED ANSWER: The marriage is not valid. Consuls to be absolute community property unless the contrary is
and vice-consuls are empowered to solemnize marriages proved.
between Philippine citizens abroad in the consular office of ALTERNATIVE ANSWER: Yes. The shares are presumed to
the foreign country to which they were assigned and have no be absolute community property having been acquired
power to solemnize marriage on Philippine soil. during the marriage despite the fact that those shares were
ALTERNATIVE ANSWER: A Philippine consul is authorized registered only in her name. Alberto's right to claim his share
by law to solemnize marriages abroad between Filipino will only arise, however, at dissolution.
citizens. He has no authority to solemnize a marriage in the ALTERNATIVE ANSWER: The presumption is still that the
Philippines. Consequently, the marriage in question is void, shares of stock are owned in common. Hence, they will form
unless either or both of the contracting parties believed in part of the absolute community or the conjugal partnership
good faith that the consul general had authority to solemnize depending on what the property Relations is.
their marriage in which case the marriage is valid. ALTERNATIVE ANSWER: Since Paulita acquired the
shares of stock by onerous title during the marriage, these
are part of the conjugal or absolute community property, as
the case maybe (depending on whether the marriage was
celebrated prior to. or after, the effectivity of the Family
Code). Her physical separation from her husband did not
dissolve the community of property. Hence, the husband has
a right to share in the shares of stock.
2) Can Alberto recover the land from Rafael?
SUGGESTED ANSWER: Under a community of property,
whether absolute or relative, the disposition of property
belonging to such community is void if done by just one
spouse without the consent of the other or authority of the
proper court. However, the land was registered in the name
of Paulita as "widow". Hence, the buyer has the right to rely

195
upon what appears in the record of the Register of Deeds and J. SUCCESSION (Wills; Holographic Wills; Witnesses)
should, consequently, be protected. Alberto cannot recover On his deathbed, Vicente was executing a will. In the room were
the land from Rafael but would have the right of recourse Carissa, Carmela, Comelio and Atty. Cimpo, a notary public. Suddenly,
against his wife. there was a street brawl which caught Comelio's attention,
ALTERNATIVE ANSWER: The parcel of land is absolute prompting him to look out the window. Cornelio did not see Vicente
community property having been acquired during the sign a will. Is the will valid?
marriage and through Paulita's industry despite the SUGGESTED ANSWER: Yes, The will is valid. The law does
registration being only in the name of Paulita. The land being not require a witness to actually see the testator sign the will.
community property, its sale to Rafael without the consent It is sufficient if the witness could have seen the act of signing
of Alberto is void. However, since the land is registered in the had he chosen to do so by casting his eyes to the proper
name of Paulita as widow, there is nothing in the title which direction.
would raise a suspicion for Rafael to make inquiry. He, ALTERNATIVE ANSWER: Yes, the will is valid. Applying
therefore, is an innocent purchaser for value from whom the the "test of position", although Comelio did not actually see
land may no longer be recovered. Vicente sign the will, Cornelio was in the proper position to
ALTERNATIVE ANSWER: No. Rafael is an innocent see Vicente sign if Cornelio so wished.
purchaser in good faith who, upon relying on the correctness
of the certificate of title, acquires rights which are to be
protected by the courts.
Under the established principles of land registration law,
the presumption is that the transferee of registered land is
not aware of any defect in the title of the property he
purchased. (See Tojonera v. Court of Appeals, 103 SCRA 467).
Moreover, the person dealing with registered land may
safely rely on the correctness of its certificate of title and the
law will in no way oblige him to go behind the certificate to
determine the condition of the property. [Director of Lands
v. Abache, et al. 73 Phil. 606). No strong considerations of
public policy have been presented which would lead the
Court to reverse the established and sound doctrine that the
buyer in good faith of a registered parcel of land does not
have to look beyond the Torrens Title and search for any
hidden defect or inchoate right which may later invalidate or
diminish his right to what he purchased. (Lopez v. Court of
Appeals. 189 SCRA 271)
ALTERNATIVE ANSWER: The parcel of land is absolute
community property having been acquired during the
marriage and through Paulita's industry despite registration
only in the name of Paulita. The land being community
property, its sale to Rafael without the consent of Alberto is
void.

196
K. PROPERTY (IMMOVABLES) may mortgage a parcel of land. (Article 2085 (2) Civil Code).
Vini constructed a building on a parcel of land he leased from Hence, there can be no foreclosure.
Andrea. He chattel mortgaged the land to Felicia. When he could not
pay Felicia. Felicia initiated foreclosure proceedings. Vini claimed that But on the assumption that what was mortgaged by way
the building he had constructed on the leased land cannot be validly of chattel mortgage was the building on leased land, then the
foreclosed because the building was, by law, an immovable. Is Vini parties are treating the building as chattel. A building that is
correct? not merely superimposed on the ground is an immovable
SUGGESTED ANSWER: The Chattel Mortgage is void and property and a chattel mortgage on said building is legally
cannot be foreclosed because the building is an immovable void but the parties cannot be allowed to disavow their
and cannot be an object of a chattel mortgage. contract on account of estoppel by deed. However, if third
parties are involved such chattel mortgage is void and has no
ALTERNATIVE ANSWER: It depends. If the building was effect.
intended and is built of light materials, the chattel mortgage
may be considered as valid as between the parties and it may
be considered in respect to them as movable property, since
it can be removed from one place to another. But if the
building is of strong material and is not capable of being
removed or transferred without being destroyed, the chattel
mortgage is void and cannot be foreclosed.

ALTERNATIVE ANSWER: If it was the land which Vini
chattel mortgaged, such mortgage would be void, or at least
unenforceable, since he was not the owner of the land.

If what was mortgaged as a chattel is the building, the
chattel mortgage is valid as between the parties only, on
grounds of estoppel which would preclude the mortgagor
from assailing the contract on the ground that its subject-
matter is an immovable. Therefore Vini's defense is
untenable, and Felicia can foreclose the mortgage over the
building, observing, however, the procedure prescribed for
the execution of sale of a judgment debtor's immovable
under Rule 39, Rules of Court, specifically, that the notice of
auction sale should be published in a newspaper of general
circulation.

ALTERNATIVE ANSWER: The problem that Vini
mortgaged the land by way of a chattel mortgage is
untenable. Land can only be the subject matter of a real
estate mortgage and only an absolute owner of real property

197
L. LAND TITLES (Registration; Deed of Mortgage) M. LAND TITLES (Remedies; Procedure; Consulta)
How do you register now a deed of mortgage of a parcel of land What is the procedure of consulta when an instrument is denied
originally registered under the Spanish Mortgage Law? registration?
SUGGESTED ANSWER: After the Spanish Mortgage Law SUGGESTED ANSWER:
was abrogated by P.D. 892 on February 16, 1976, all lands 1)The Register of Deeds shall notify the interested party in
covered by Spanish titles that were not brought under the writing, setting forth the defects of the instrument or the legal
Torrens system within six 16] months from the date thereof ground relied upon for denying the registration, and advising that
have been considered as "unregistered private lands." if he is not agreeable to such ruling, he may, without withdrawing
Thus, a deed of mortgage affecting land originally the documents from the Registry, elevate the matter by Consulta
registered under the Spanish Mortgage Law is now governed to the Administrator of the Land Registration Authority (LRA).
by the system of registration of transactions or instruments 2) Within five {5) days from receipt of notice of denial, the
affecting unregistered land under Section 194 of the Revised party-in-interest shall file his Consulta with the Register of Deeds
Administrative Code as amended by Act No. 3344. Under this concerned and pay the consulta fee.
law, the instrument or transaction affecting unregistered 3) After receipt of the Consulta and payment of the
land is entered in a book provided for the purpose but the corresponding fee the Register of Deeds makes an annotation of
registration thereof is purely voluntary and does not the pending consulta at the back of the certificate of title.
adversely affect third persons who have a better right. 4) The Register of Deeds then elevates the case to the LRA
ALTERNATIVE ANSWER: By recording and registering Administrator with certified records thereof and a summary of
with the Register of Deeds of the place where the land is the facts and issues involved.
located, in accordance with Act 3344. However, P.D. 892 5) The LRA Administrator then conducts hearings after due
required holders of Spanish title to bring the same under the notice or may just require parties to submit their memoranda.
Torrens System within 6 months from its effectivity on 6) After hearing, the LRA Administrator issues an order
February 16, 1976. prescribing the step to be taken or the memorandum to be made.
His resolution in consulta shall be conclusive and binding upon all
Registers of Deeds unless reversed on appeal by the Court of
Appeals or by the Supreme Court. (Section 117, P.D. 1529).
The procedure of consulta is a mode of appeal from denial by
the Register of Deeds of the registration of the instrument to the
Commissioner of Land Registration.
Within five days from receipt of the notice of denial, the
interested party may elevate the matter by consulta to the
Commissioner of Land Registration who shall enter an order
prescribing the step to be taken or memorandum to be made.
Resolution in consulta shall be binding upon all Registers of
Deeds provided that the party in interest may appeal to the Court
of Appeals within the period prescribed (Sec. 117, P.D. 1529).

198
N. LAND TITLES (Torrens System vs. Recording of Evidence of Title)
Distinguish the Torrens system of land registration from the
system of recording of evidence of title.
SUGGESTED ANSWER: The TORRENS SYSTEM OF LAND
REGISTRATION is a system for the registration of title to the
land. Thus, under this system what is entered in the Registry
of Deeds, is a record of the owner's estate or interest in the
land, unlike the system under the Spanish Mortgage Law or
the system under Section 194 of the Revised Administrative
Code as amended by Act 3344 where only the evidence of
such title is recorded. In the latter system, what is recorded
is the deed of conveyance from hence the owner's title
emanated—and not the title itself.
ALTERNATIVE ANSWER: Torrens system of land
registration is that which is prescribed in Act 496 (now PD
1529), which is either Judicial or quasi-judicial. System or
recording of evidence of title is merely the registration of
evidence of acquisitions of land with the Register of Deeds,
who annotates the same on the existing title, cancels the old
one and issues a new title based on the document presented
for registration.

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 1993 BAR QUESTIONS Yes, they can. The subsequent marriage contracted by one of the parties
will not give rise to bigamy even in the absence of a court declaration of

nullity of the first marriage. The subsistence of a prior valid marriage is an

indispensable element of the crime of bigamy. The prior court declaration of
Q1
nullity of the first marriage is required by the Family Code only for the
(Persons; Marriage; Requisites; Void Marriage)
purpose of the validity of the subsequent marriage, not as an element of the
A and B, both 18 years old, were sweethearts studying in Manila. On
crime of bigamy.
August 3, 1988, while in first year college, they eloped. They stayed in the

house of a mutual friend in town X, where they were able to obtain a

marriage license. On August 30, 1988, their marriage was solemnized by
the town mayor of X in his office. Thereafter, they returned to Manila and
continued to live separately in their respective boarding houses,
concealing from their parents, who were living in the province what they
had done. In 1992, after graduation from college, A and B decided to break
their relation and parted ways. Both went home to their respective towns
to live and work.

1) Was the marriage of A and B solemnized on August 30, 1988 by the
town mayor of X in his office a valid marriage? Explain your answer.

The marriage of A and B is void because the solemnizing officer had no
legal authority to solemnize the marriage. But if either or both parties
believed in good faith that the solemnizing officer had the legal authority to
do so, the marriage is voidable because the marriage between the parties,
both below 21 years of age, was solemnized without the consent of the
parents. (FC 35 par. 2; FC 45 par. 1)

2) Can either or both of them contract marriage with another person
without committing bigamy? Explain your answer.

Either or both of the parties cannot contract marriage in the Philippines
with another person without committing bigamy, unless there is compliance
with the requirements of FC 52, namely: there must be a judgment of
annulment or absolute nullity of the marriage, partition and distribution of
the properties of the spouses and the delivery of their children’s
presumptive legitimes, which shall be recorded in the appropriate Civil
Registry and Registry of Property, otherwise the same shall not affect third
persons and the subsequent marriage shall be null and void. (FC 52, FC 53)

Alternative Answer:

200
 Q2 Q3
(Succession; Art. 992 Barrier) (Succession; Wills executed abroad)
A is the acknowledged natural child of B who died when A was already A, a Filipino, executed a will in Kuwait while there as a contract worker.
22 years old. When B's full blood brother, C, died he (C) was survived by his Assume that under the laws of Kuwait, it is enough that the testator affix
widow and four children of his other brother D. Claiming that he is entitled his signature to the presence of two witnesses and that the will need not be
to inherit from his father's brother C. A brought suit to obtain his share in acknowledged before a notary public. May the will be probated in the
the estate of C. Will his action prosper? Philippines?

No, the action of A will not prosper. On the premise that B, C and D are Yes. Under Arts. 815 and 17 of the Civil Code, the formality of the
legitimate brothers, as an illegitimate child of B, A cannot inherit in intestacy execution of a will is governed by the law of the place of execution. If the
from C who is a legitimate brother of B. Only the wife of C in her own right will was executed with the formalities prescribed by the laws of Kuwait and
and the legitimate nephews inheriting as collateral relatives) can inherit in valid there as such, the will is valid and may be probated in the Philippines.
intestacy. (Arts. 992, 1001, 1005, 975, Civil Code)

Alternative Answer:
The action of A will not prosper. Being an illegitimate, he is barred by
Art. 992 of the Civil Code from inheriting ab intestato from the legitimate
relatives of his father.

201
 Q6 Q7
(Property; Donations) (Succession; Preterition; Disinheritance)
On January 21, 1986, A executed a deed of donation inter vivos of a Maria, to spite her husband Jorge, whom she suspected was having an
parcel of land to Dr. B who had earlier constructed thereon a building in affair with another woman, executed a will, unknown to him, bequeathing
which researches on the dreaded disease AIDS were being conducted. The all the properties she inherited from her parents, to her sister Miguela.
deed, acknowledged before a notary public, was handed over by A to Dr. B Upon her death, the will was presented for probate. Jorge opposed probate
who received it. A few days after, A flew to Davao City. Unfortunately, the of the will on the ground that the will was executed by his wife without his
airplane he was riding crashed on landing killing him. Two days after the knowledge, much less consent, and that it deprived him of his legitime.
unfortunate accident. Dr. B, upon advice of a lawyer, executed a deed After all, he had given her no cause for disinheritance, added Jorge in his
acknowledged before a notary public accepting the donation. Is the opposition.
donation effective? Explain your answer.
How will you rule on Jorge's opposition to the probate of Maria's will. If
No, the donation is not effective. The law requires that the separate you were the Judge?
acceptance of the donee of an immovable must be done in a public
document during the lifetime of the donor (Arts. 746 & 749, Civil Code) In As Judge, I shall rule as follows: Jorge's opposition should be sustained
this case, B executed the deed of acceptance before a notary public after in part and denied in part. Jorge's omission as spouse of Maria is not
the donor had already died. preterition of a compulsory heir in the direct line. Hence, Art. 854 of the Civil
Code does not apply, and the institution of Miguela as heir is valid, but only
to the extent of the free portion of one-half. Jorge is still entitled to one-half
of the estate as his legitime. (Art. 1001, Civil Code)

Alternative Answers:
a) As Judge, I shall rule as follows: Jorge's opposition should be
sustained in part and denied in part. This is a case of ineffective
disinheritance under Art, 918 of the Civil Code, because the omission
of the compulsory heir Jorge by Maria was intentional. Consequently,
the institution of Miguela as heir is void only insofar as the legitime
of Jorge is prejudiced. Accordingly, Jorge is entitled to his legitime of
one-half of the estate, and Miguela gets the other half.

b) As Judge, I shall rule as follows: Jorge's opposition should be
sustained. This is a case of preterition under Article 854 Civil Code.
The result of the omission of Jorge as compulsory heir having the
same right equivalent to a legitimate child "in the direct line" is that
total intestacy will arise, and Jorge will inherit the entire estate.

c) As Judge, I shall rule as follows: the opposition should be denied since
it is predicated upon causes not recognized by law as grounds for
disallowance of a will, to wit:
1) that the will was made without his knowledge;

202
 2) that the will was made without his consent; and Q15
3) that it has the effect of depriving him of his legitime, which is (Persons; Emancipation)
a ground that goes into the intrinsic validity of the will and Julio and Lea, both 18 years old, were sweethearts. At a party at the
need not be resolved during the probate proceedings. house of a mutual friend. Lea met Jake, also 18 years old, who showed
However, the opposition may be entertained for, the interest in her. Lea seemed to entertain Jake because she danced with him
purpose of securing to the husband his right to the legitime many times. In a fit of jealousy, Julio shot Jake with his father's .38 caliber
on the theory that the will constitutes an ineffective revolver which, before going to the party he was able to get from the
disinheritance under Art. 918 of the Civil Code unlocked drawer inside his father's bedroom. Jake died as a result of the
lone gunshot wound he sustained. His parents sued Julio's parents for
d) As Judge, I shall rule as follows: Jorge is entitled to receive his legitime damages arising from quasi-delict. At the time of the incident, Julio was 18
from the estate of his wife. He was not disinherited in the will even years old living with his parents. Julio's parents moved to dismiss the
assuming that he gave ground for disinheritance, hence, he is still complaint against them claiming that since Julio was already of majority
entitled to his legitime. Jorge, however, cannot receive anything from age, they were no longer liable for his acts.
the free portion. He cannot claim preterition as he is not a
compulsory heir in the direct line. There being no preterition, the 1) Should the motion to dismiss be granted? Why?
institution of the sister was valid and the only right of Jorge is to claim
his legitime. No, the Motion to Dismiss should not be granted. Art. 236 of the Family
Code as amended by RA 6809, provides in the third paragraph that "nothing
in this Code shall be construed to derogate from the duty or responsibility of
parents and guardians for children and wards below 21 years of age
mentioned in the second and third paragraphs of Article 2180 of the Civil
Code".

2) What is the liability of Julio's parents to Jake's parents? Explain your
answer.

The liability of Julio's parents to Jake's parents arises from quasi-delict
(Arts. 2176, 2180 Civil Code) and shall cover specifically the following:
a. P50,000 for the death of the son;
b. such amount as would correspond to lost earning capacity; and
c. moral damages.

203
 Q16 Q17
(Property; Easements; Right of Way) (Succession; Collation)
Tomas Encarnacion's 3,000 sq. meter parcel of land, where he has a Joaquin Reyes bought from Julio Cruz a residential lot of 300 sq. meters
plant nursery, is located just behind Aniceta Magsino's 2-hectare parcel in Quezon City for which Joaquin paid Julio the amount of P300,000. When
land. To enable Tomas to have access to the highway, Aniceta agreed to the deed was about to be prepared Joaquin told Julio that it be drawn in the
grant him a road right of way a meter wide through which he could pass. name of Joaquina Roxas, his acknowledged natural child. Thus, the deed
Through the years Tomas' business flourished which enabled him to buy was so prepared and executed by Julio. Joaquina then built a house on the
another portion which enlarged the area of his plant nursery. But he was lot where she, her husband and children resided. Upon Joaquin's death, his
still landlocked. He could not bring in and out of his plant nursery a jeep or legitimate children sought to recover possession and ownership of the lot,
delivery panel much less a truck that he needed to transport his seedlings. claiming that Joaquina Roxas was but a trustee of their father. Will the
He now asked Aniceta to grant him a wider portion of her property, the action against Joaquina Roxas prosper?
price of which he was willing to pay, to enable him to construct a road to
have access to his plant nursery. Aniceta refused claiming that she had Yes, because there is a presumed donation in favor of Joaquina under
already allowed him a previous road right of way. Is Tomas entitled to the Art. 1448 of the Civil Code (De los Santos v. Reyes, 27 January 1992, 206
easement he now demands from Aniceta? SCRA 437). However, the donation should be collated to the hereditary
estate and the legitime of the other heirs should be preserved.
Art. 651 of the Civil Code provides that the width of the easement must
be sufficient to meet the needs of the dominant estate, and may accordingly Alternative Answer:
change from time to time. It is the need of the dominant estate which Yes, the action against Joaquina Roxas will prosper, but only to the
determines the width of the passage. These needs may vary from time. As extent of the aliquot hereditary rights of the legitimate children as heirs.
Tomas’ business grows, the need for use of modern conveyances requires Joaquina will be entitled to retain her own share as an illegitimate child,
widening of the easement. (Arts. 1440 and 1453. Civil Code; FC 176)

Alternative Answer:
The facts show that the need for a wider right of way arose from the
increased production owing to the acquisition by Tomas of an additional
area. Under Art. 626 of the Civil Code, the easement can be used only for
the immovable originally contemplated. Hence, the increase in width is
justified and should have been granted.

204
 Q19
(Persons; Marriage; Annulment; Judicial Declaration of Nullity)
Maria and Luis, both Filipinos, were married by a Catholic priest in
Lourdes Church, Quezon City in 1976. Luis was drunk on the day of his
wedding. In fact, he slumped at the altar soon after the ceremony. After
marriage, Luis never had a steady job because he was drunk most of the
time. Finally, he could not get employed at all because of drunkenness.
Hence, it was Maria who had to earn a living to support herself and her child
begotten with Luis. In 1986, Maria filed a petition in the church matrimonial
court in Quezon City to annul her marriage with Luis on the ground of
psychological incapacity to comply with his marital obligation. Her petition
was granted by the church matrimonial court.

1) Can Maria now get married legally to another man under Philippine
laws after her marriage to Luis was annulled by the church matrimonial
court? Explain.

No, Maria cannot validly contract a subsequent marriage without a
court declaration of nullity of the first marriage. The law does not recognize
the church declaration of nullity of a marriage.

2) What must Maria do to enable her to get married lawfully to another
man under Philippine laws?

To enable Maria to get married lawfully to another man, she must
obtain a judicial declaration of nullity of the prior marriage under FC 36.

205
 1992 BAR QUESTIONS marriage has not been validly dissolved by the Maryland divorce (Art. 26,
Family Code).

(c) The marriage of Maris and Vincent is void ab initio because it is a
PERSONS AND FAMILY (1992)
bigamous marriage contracted by Maris during the subsistence of her

marriage with Pedro (Art. 25 and 41, Family Code). The marriage of Maris and
Applicable Laws; laws governing marriages; Marriage; Divorce Decree;
Vincent does not validly exist because Article 26 does not apply. Pedro was
Void Marriages (1992)
not a foreigner at the time of his marriage with Maris and the divorce abroad
Question No. 1: In 1989, Maris, a Filipino citizen, married her boss
(in Maryland) was initiated and obtained not by the alien spouse, but by the
Johnson, an American citizen, in Tokyo in a wedding ceremony celebrated
Filipino spouse. Hence, the Maryland divorce did not capacitate Maris to
according to Japanese laws. One year later, Johnson returned to his native
marry Vincent.
Nevada, and he validly obtained in that state an absolute divorce from his
d) At this point in time, Pedro is still the lawful husband of Maris because
wife Maris. After Maris received the final judgment of divorce, she married
their valid marriage has not been dissolved by any valid cause (Art. 26, Family
her childhood sweetheart Pedro, also a Filipino citizen, in a religious
Code)
ceremony in Cebu City, celebrated according to the formalities of Philippine

law. Pedro later left for the United States and became naturalized as an

American citizen. Maris followed Pedro to the United States, and after a
serious quarrel, Marts filed a suit and obtained a divorce decree issued by the
court in the state of Maryland. Maris then returned to the Philippines and in
a civil ceremony celebrated in Cebu City according to the formalities of
Philippine law, she married her former classmate Vincent likewise a Filipino
citizen.
a) Was the marriage of Maris and Johnson valid when
celebrated? Is their marriage still validly existing now? Reasons.
b) Was the marriage of Maris and Pedro valid when celebrated?
Is their marriage still valid existing now? Reasons.
c) Was the marriage of Maris and Vincent valid when celebrated?
Is their marriage still validly existing now? Reasons.
d) At this point in time, who is the lawful husband of Marts? Reasons.

SUGGESTED ANSWER:
a) The marriage of Mans and Johnson was valid when celebrated because
all marriages solemnized outside the Philippines (Tokyo) in accordance with
the laws in force in the country where they are solemnized (Japan), and valid
there as such, are also valid in the Philippines. Their marriage no longer validly
subsists, because it has been dissolved by the absolute divorce validly
obtained by Johnson which capacitated Maris to remarry (Art. 26, Family
Code).
(b) The marriage of Maris and Pedro was valid when celebrated because
the divorce validly obtained by Johnson in Manila capacitated Maris to marry
Pedro. The marriage of Maris and Pedro is still validly existing, because the

206
 Property Relations; Unions without Marriage (1992) CONFLICT OF LAWS (1992)
Question No. 2: In 1989, Rico, then a widower forty (40) years of age,
cohabited with Cora, a widow thirty (30) years of age. While living together, Applicable Laws; laws governing contracts (1992)
they acquired from their combined earnings a parcel of riceland. After Rico Question Number 14: X and Y entered into a contract in Australia,
and Cora separated, Rico lived together with Mabel, a maiden sixteen (16) whereby it was agreed that X would build a commercial building for Y in the
years of age. While living together, Rico was a salaried employee and Mabel Philippines, and in payment for the construction, Y will transfer and convey
kept house for Rico and did full-time household chores for him. During their his cattle ranch located in the United States in favor of X.
cohabitation, a parcel of coconut land was acquired by Rico from his savings. What law would govern:
After living together for one (1) year, Rico and Mabel separated. Rico then a) The validity of the contract?
met and married Letty, a single woman twenty-six (26) years of age. During b) The performance of the contract?
the marriage of Rico and Letty, Letty bought a mango orchard out of her own c) The consideration of the contract?
personal earnings.
a) Who would own the riceland, and what property relations SUGGESTED ANSWER:
governs the ownership? Explain. (a) The validity of the contract will be governed by Australian law,
b) Who would own the coconut land, and what property because the validity refers to the element of the making of the contract in
Relations governs the ownership? Explain. this case.
c) Who would own the mango orchard, and what property (Optional Addendum:"... unless the parties agreed to be bound by
Relations governs the ownership? Explain. another law".}
(b) The performance will be governed by the law of the Philippines where
SUGGESTED ANSWER: the contract is to be performed.
(a) Rico and Cora are the co-owners of the riceland. The regime is that of (c) The consideration will be governed by the law of the United States
co-ownership (Art. 147, Family Code, first paragraph). where the ranch is located. (Optional Addendum: In the foregoing cases,
(Optional Addendum: However, after Rico's marriage to Letty, the half when the foreign law would apply, the absence of proof of that foreign law
interest of Rico in the riceland will then become absolute community would render Philippine law applicable under the "eclectic theory".)
property of Rico and Letty.)
(b) Rico is the exclusive owner of the coconut land. The regime is a
sole/single proprietorship (Art. 148. Family Code, first paragraph is applicable,
and not Art. 147 Family Code).
(Optional Addendum: However, after Rico's marriage to Letty, the
coconut land of Rico will then become absolute community property of Rico
and Letty.)
(c) Rico and Letty are the co-owners. The regime is the Absolute
Community of Property (Arts, 75, 90 and 91 , Family Code).

207
 PROPERTY (1992) (e) Article 448 of the Civil Code provides that the builder cannot be
obliged to buy the land if its value is considerably more than that of the
Builder; Good Faith (1992) building. In such case, he shall pay reasonable rent, if the owner of the land
Question No. 4: A owns a parcel of residential land worth P500,000.00. does not choose to appropriate the building after proper indemnity. The
Unknown to A, a residential house costing P100,000.00 is built on the entire parties shall agree upon the terms of the lease and in case of disagreement,
parcel by B who claims ownership of the land. Answer all the following the court fix the terms thereof.
questions based on the premise that B is a builder in good faith and A is a
landowner in good faith.
a) May A acquire the house built by B? If so, how?
b) If the land increased in value to P500,000.00 by reason of the
building of the house thereon, what amount should be paid by A in
order to acquire the house from B?
c) Assuming that the cost of the house was P900,000.00 and not
P100,000.00, may A require B to buy the land?
d) If B voluntarily buys the land as desired by A, under what
circumstances may A nevertheless be entitled to have the house
removed?
e) In what situation may a "forced lease" arise between A and B,
and what terms and conditions would govern the lease? Give reasons
for your answers.

SUGGESTED ANSWER:
(a) Yes, A may acquire the house build by B by paying indemnity to B.
Article 448 of the Civil Code provides that the owner of the land on which
anything has been built, sown or planted in good faith, shall have the right to
appropriate as his own the works, sowing or planting, after payment of the
indemnity provided for in Articles 546 of the Civil Code.
(b) A should pay B the sum of P50,000. Article 548 of the Civil Code
provides that useful expenses shall be refunded to the possessor in good faith
with the 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. The increase in value amounts to P50,000.00.
(c) Yes, A may require B to buy the land. Article 448 of the Civil Code
provides that the owner of the land on which anything has been built in good
faith shall have the right to oblige the one who built to pay the price of the
land if its value is not considerably more than that of the building,
(d) If B agrees to buy land but fails to pay, A can have the house removed
(Depra vs. Dumlao, 136 SCRA 475).

208
 Ownership; Co-Ownership (1992) the thing owned in common if not decided upon by the majority of the co-
Question No. 6: A, B and C are the co-owners in equal shares of a owners who represent the controlling interest (Arts. 489 and 492, Civil Code).
residential house and lot. During their co-ownership, the following acts were (e) The sale to X shall not bind the 1/3 share of B and shall be deemed to
respectively done by the co-owners: cover only the 2/3 share of A and C in the land (Art. 493, Civil Code). B shall
1. A undertook the repair of the foundation of the house, then tilting to have the right to redeem the 2/3 share sold to X by A and C since X is a third
one side, to prevent the house from collapsing. person (Art. 1620, Civil Code).
2. B and C mortgaged the house and lot to secure a loan.
3. B engaged a contractor to build a concrete fence all around the lot.
4. C built a beautiful grotto in the garden.
5. A and C sold the land to X for a very good price.
(a) Is A's sole decision to repair the foundation of the house
binding on B and C? May A require B and C to contribute their 2/3
share of the expense? Reasons.
(b) What is the legal effect of the mortgage contract executed by B
and C? Reasons.
(c) Is B's sole decision to build the fence binding upon A and C?
May B require A and C to contribute their 2/ 3 share of the expense?
Reasons.
(d) Is C's sole decision to build the grotto binding upon A and B?
May C require A and B to contribute their 2/ 3 share of the expense?
Reasons.
(e) What are the legal effects of the contract of sale executed by A, C
and X? Reasons.

SUGGESTED ANSWER:
(a) Yes. A's sole decision to repair the foundation is binding upon B and C.
B and C must contribute 2/3 of the expense. Each co-owner has the right to
compel the other co-owners to contribute to the expense of preservation of
the thing (the house) owned in common in proportion to their respective
interests (Arts. 485 and 488, Civil Code).
(b) The mortgage shall not bind the 1/3 right and interest of A and shall
be deemed to cover only the rights and interests of B and C in the house and
lot. The mortgage shall be limited to the portion (2/3) which may be allotted
to B and C in the partition (Art. 493, Civil Code).
(c) B's sole decision to build the concrete fence is not binding upon A and
C. Expenses to improve the thing owned in common must be decided upon
by a majority of the co-owners who represent the controlling interest (Arts.
489 and 492. Civil Code).
(d) C's sole decision to build the grotto is not binding upon A and B who
cannot be required to contribute to the expenses for the embellishment of

209
 SUCCESSION (1992)

Intestate Succession (1992)
Question Number 5: F had three (3) legitimate children: A, B, and C. B has
one (1) legitimate child X. C has two (2) legitimate children: Y and Z. F and A
rode together in a car and perished together at the same time in a vehicular
accident, F and A died, each of them leaving substantial estates in intestacy.
a) Who are the intestate heirs of F? What are their respective
fractional shares?
b) Who are the intestate heirs of A? What are their respective
fractional shares?
c) If B and C both predeceased F, who are F’s intestate heirs?
What are their respective fractional shares? Do they inherit in their
own right or by representation? Explain your answer.
d) If B and C both repudiated their shares in the estate of F, who
are F's intestate heirs? What are their respective fractional shares?
Do they inherit in their own right or by representation? Explain your
answer.

SUGGESTED ANSWER:
(a) B = ½, C = ½
(b) B = ½, C = ½
(c) X = ½ by representation of B, Y = ¼ by representation of C, Z = ¼ by
representation of C
Ar. 982 of the Civil Code provides that grandchildren inherit by right of
representation.
(d) X = 1/3 in his own right, Y = 1/3 in his own right, Z = 1/3 in his own
right
Art. 977 of the Civil Code provides that heirs who repudiate their share
cannot be represented.

210
 1990 BAR QUESTIONS Question Number 3: (Donation/Wills)


B donated to M a parcel of land in 1980. B made the deed of
Question Number 1: (Property-BPS)
donation, entitled “Donation Inter Vivos,” in a public instrument M

accepted the donation in the same document. It was provided in the deed
A vacant lot several blocks from the center of the town was leased
that the land donated shall be immediately delivered to M and that M shall
by its owner to a young businessman B, for a term of 15 years renewal upon
have the right to enjoy the fruits fully. The deed also provided that B was
agreement of the parties. After taking possession of the lot, the lessee built
reserving the to dispose of said land during his (B’s) lifetime, and that M
thereon a building of mixed materials and a store. As the years passed, he
shall not register the deed of donation until after B’s death. Upon B’s death,
expanded his business, earning more profits. By the 10th year of his
W, B’s widow and sole heir, filed an action for recovery of the donated land,
possession, he was able to build a 3 storey building worth at least
contending that the donation made by B is a donation mortis causa and not
P300,000.00. Before the end of the term of the lease, B negotiated with the
a donation inter vivos. Will said action prosper? Explain your answer.
landowner for its renewal, but despite their attempts to do so, they could

not agree on the new conditions for the renewal. Upon the expiration of the
ANSWER: Yes, the action will prosper. The donation is a donation mortis
term of the lease, the land owner asked B to vacate the premises and
causa because the reservation is to dispose of all the property donated and,
remove his building and other improvement. B refused unless he was
therefore, the donation is revocable at will. Accordingly, the donation
reimbursed for the necessary and useful expenses. B claimed that he was a
requires the execution of a valid will, either notarial or holographic. (Arts. 755
possessor and builder in good faith, with right of retention. This issue is now
728 Civil Code)
before the court for resolution in a pending litigation.



a.) What are the rights of B?


ANSWER: B has the right to remove the building and other improvements
unless the landowner decides to retain the building at the time of the
termination of the lease and pay the lessee one-half of the value of the
improvements at that time. The lessee may suffer damage but B should not
cause any more impairment upon the property leased than is necessary. The
claim of B that he was a possessor and builder in good faith with the right of
retention is not tenable. B is not a builder in good faith, because as lessee he
does not claim ownership over the property leased.

b.) What are the rights of the landowner?

ANSWER: The landowner/lessor may refuse to reimburse ½ of the value
of the improvements and require the lessee to remove the improvements.
(Art. 1678, Civil Code)

211
 Question Number 8: (Family Relations-Rights of a legitimate and Question Number 9: (Wills)
illegitimate child)
H died leaving a last will and testament wherein it is stated that he
B and G (college students, both single and not disqualified to marry was legally married to W by whom he had two legitimate children A and B.
each other) had a romantic affair. G was seven months in the family way as H devised to his said forced heirs the entire estate except the free portion
of the graduation of B. Right after graduation B went home to Cebu City. which he gave to X who was living with him at the time of his death.
Unknown to G, B had a commitment to C (his childhood sweetheart) to In said will he explained that he had been estranged from his wife
marry her after getting his college degree. Two weeks after B’s marriage in W for more than 20 years and he has been living with X as man and wife
Cebu City, G gave birth to a son E in Metro Manila. since his separation from his legitimate family.
In the probate proceedings, X asked for the issuance of letters
What are the rights of B’s four children: X and Y of his first marriage; testamentary in accordance with the will wherein she is named sole
and E and F, his children with G? Explain your answer. executor. This was opposed by W and her children.

ANSWER: Under the facts stated, X and Y are legitimate children of B and a.) Should the will be admitted in said probate proceedings?
G. E is the legitimate children of B and G. E is the legitimated child of B&G. F
is the illegitimate child of B and C. As legitimate children of B and C, X and Y ANSWER: Yes, the will may be probated if executed according to the
have the following rights: formalities prescribed by law.

(1) To bear the surname of the father and mother, in conformity with b.) Is the said devise to X valid?
the provisions of the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and in ANSWER: The institution giving X the free portion is not valid, because
proper cases, their brothers and sisters, in conformity with the the prohibitions undr Art. 736 of the Civil Code on donations also apply to
provisions of the Family Code on Support; and testamentary dispositions (Art. 1028- Civil Code). Among donations which are
(3) To be entitled to the legitime and other successional rights considered void are those made between persons who were guilty of adultery
granted to them by the Civil Code (Art. 174-FC) E is the or concubinage at the time of the donation.
legitimated child of B and G. Under Art. 177 of the Family Code,
only children conceive and born outside of wedlock of parents c.) Was it proper for the trial court to consider the intrinsic validity of
who, at the time of the concepcion of the former, were not the provisions of said will? Explain your answers,
disqualified by any impediment to marry each other may be
legitimated. E will have the same rights as X and Y. F is the ANSWER: As a general rule, the will should be admitted in probate
illegitimate child of B and G. F has the right to use the surname proceedings if all the necessary requirements for its extrinsic validity have
of G, her mother, and is entitled to support as well as the legitime been met and the court should not consider the intrinsic validity of the
consisting of ½ of that of each of X, Y and E. (Art. 176-FC) provisions of said will. However, the exception arises when the will in effect
contains only one testamentary disposition. In effect, the only testamentary
disposition under the will is the giving of the free portion to X, since legitimes
are provided by law. Hence, the trial court may consider the intrinsic validity
of the provisions of said will. (Nuguid v. Nuguid, etal.. No. L23445, June 23,
1966, 17 SCRA; Nepomuceno v. CA, L-62952, 9 October 1985. 139 SCRA 206).

212
 Question Number 10: civil registry and registers of property, (Articles 53. 52, 43. 44. Family
Code).
The marriage of H and W was annulled by the competent court. Upon
finality of the judgment of nullity. H began looking for his prospective
second mate. He fell in love with a sexy woman S who wanted to be married (b) Suppose that children were born from the union of H and W, what
as soon as possible, i.e., after a few months of courtship. As a young lawyer, would be the status of said children? Explain your answer.
you were consulted by H, (Marriage-Legitimate Children)

(a) How soon can H be joined in lawful wedlock to his girlfriend S? ANSWER: The children born from the union of H and W would be
Under existing laws, are there certain requisites that must be legitimate children if conceived or born before the decree of annulment of
complied with before he can remarry? What advice would you give the marriage (under Art. 45 of the Family Code) has become final and
H? (Marriage- Art. 52 Partition, Distribution ad Delivery of executory (Art. 54, Family Code).
Presumptive Legitimes)

ANSWER: H, or either spouse for that matter, can marry again after (c) If the subsequent marriage of H to S was contracted before
complying with the provisions of Article 52 of the Family Code, namely, there compliance with the statutory condition for its validity, what are
must be a partition and distribution, of the properties of the spouses, and the the rights of the children of the first marriage (i.e., of H and W) and
delivery of the children's presumptive legitimes which should be recorded in of the children of the subsequent marriage (of H and S)?
the appropriate civil registry and registries of property. H should be so (Marriage-Status of Children)
advised.
ANSWER: The children of the first marriage shall be considered legitimate
ALTERNATIVE ANSWER: The following are the requisites prescribed by children if conceived or born before the Judgment of annulment of the
law and I advice to H is to comply with them, namely: marriage of H and W has become final and executory. Children conceived or
1. If either spouse contracted the marriage in bad faith, his or her share born of the subsequent marriage shall likewise be legitimate even if the
of the net profits of the community property : or conjugal partnership marriage of H and S be null and void for failure to comply with the requisites
property shall be forfeited in favor of the common children or, if of Article 52 of the Family Code (Article 53, Family Code).
there are none, the children of the guilty spouse by a previous
marriage or, in default of children, the innocent spouse; As legitimate children, they have the following rights;
2. Donations by reason of marriage shall remain valid except that if the a. To bear the surnames of the father and the mother in conformity
donee contracted the marriage in bad faith, such donations made to with the provisions of the Civil Code on Surnames;
said donee are revoked by operation of law; b. To receive support from their parents, their ascendants, and in
3. The spouse who contracted the subsequent marriage in bad faith proper cases, their brothers and sisters, in conformity with the
shall be disqualified to inherit from the innocent spouse by testate provisions of this Code on Support; and
and intestate succession; c. To be entitled to the legitime and other successional rights granted
4. If both spouses of the subsequent marriage acted in bad faith all to them by the Civil Code (Article 174, Family Code).
donations by reason of marriage and testamentary dispositions made
by one in favor of the other are revoked by operation of law.
5. The judgment of annulment of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the
children's presumptive legitimes shall be recorded in the appropriate

213
 Question Number 11: (Wills-Law which will govern the formalities) Question Number 13: (Marriage-Annulment)

1. If a will is executed by a testator who is a Filipino citizen, what law B and G, age 20 and 19, respectively, and both single, eloped and
will govern if the will is executed in the Philippines? What law will got married to each other without parental consent in the case of G, a
govern if the will is executed in another country? Explain your teenaged student of an exclusive college for girls. Three years later, her
answers. parents wanted to seek judicial annulment on that ground. You were
consulted and asked to prepare the proper complaint. What advice would
ANSWER: you give G's parents? Explain your answer.
a. If the testator who is a Filipino citizen executes his will in the
Philippines, Philippine law will govern the formalities.
b. If said Filipino testator executes his will in another country, the law ANSWER: G himself should file the complaint under Article 45 of the
of the country where he maybe or Philippine law will govern the Family Code, and no longer the parents because G is already 22 years of age.
formalities. (Article 815, Civil Code).

POSSIBLE ADDITIONAL ANSWER: In the case of a Filipino citizen,
Philippine law shall govern substantive validity whether he executes his will
in the Philippines or in a foreign country.


2. If a will is executed by a foreigner, for instance, a Japanese,
residing in the Philippines, what law will govern if the will is
executed in the Philippines? And what law will govern if the will is
executed in Japan, or some other country, for instance, the U.S.A.?
Explain your answers.

ANSWER:
a. If the testator is a foreigner residing in the Philippines and he
executes his will in the Philippines, the law of the country of which
he is a citizen or Philippine law will govern the formalities.
b. If the testator is a foreigner and executes his will in a foreign
country, the law of his place of residence or the law of the country
of which he is a citizen or the law of the place of execution, or
Philippine law will govern the formalities (Articles 17. 816. 817. Civil
Code)

POSSIBLE ADDITIONAL ANSWER: In the case of a foreigner, his national
law shall govern substantive validity whether he executes his will in the
Philippines or in a foreign country.

214
 1991 BAR QUESTIONS TOPIC: PERSONS, RIGHT OF A FETUS

TOPIC: CONSTI PROVISIONS RELATING TO FAMILY CODE QUESTION NUMBER 2
QUESTION NUMBER 1 On her third month of pregnancy, Rosemarie, married to Boy, for reasons
known only to her, and without informing Boy, went to the clinic of X, a
A. How does the 1987 Constitution strengthen the family as an
known abortionist, who for a fee, removed and expelled the fetus from her
Institution?
womb, Boy learned of the abortion six (6) months later.
SUGGESTED ANSWER:
Availing of that portion of Section 12 of Article II of the 1987 Constitution
A. Sec, 2, Article II of the Constitution provides that: The State recognizes which reads;
the sanctity of family life and shall protect and strengthen the family as a basic
The State x xx shall equally protect the life of the mother and the life of
autonomous social institution. It shall equally protect the life of the mother
the unborn from conception, "xxx" which he claims confers a civil personality
and the life of the unborn from conception. The natural and primary right and
on the unborn from the moment of conception.
duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government. Boy filed a case for damages against the abortionist, praying therein that
the latter be ordered to pay him: (a) P30,000.00 as indemnity for the death
Section I, Article XV, further provides that: The State recognizes the
of the fetus, (b) P100.000.00 as moral damages for the mental anguish and
Filipino family as the foundation of the nation. Accordingly, it shall strengthen
anxiety he suffered, (c) P50,000.00 as exemplary damages, (d) P20,000.00 as
its solidarity and actively promote its total development.
nominal damages, and (e) P25,000.00 as attorney's fees.
(Note: The Committee recommends that a citation of either one of the
(a) Is the Boy’s interpretation of the above constitutional provision
provisions be credited as a complete answer).
correct?

SUGGESTED ANSWER: No. Because under the Child and Youth Welfare
B. Do the Constitutional policy on the family and the provision that Code, the personality of the child commences from the time of conception
marriage is the foundation of the family and shall be protected by the for the purposes favorable to him, subject to the requirement that it is born
State bar Congress from enacting a law allowing divorce in the alive at the time of the complete delivery from the mother’s womb
Philippines?
ALTERNATIVE ANSWER: Yes. As legitimate ascendant, he can demand
SUGGESTED ANSWER: damages due to the death of the fetus whose personality commenced from
B, No, the Constitutional policy, as well as the supporting provision, does conception. (Article 5, PD No 603, Art. 2206, Civil Code)
not amount to a prohibition to Congress to enact a law on divorce. The
Constitution only meant to help the marriage endure, to "strengthen its
solidarity and actively promote its total development."
ALTERNATIVE ANSWER:
B. Yes. Congress is barred from enacting a law allowing divorce, since
Section 2 of Article XV provides: "Sec. 2. Marriage, as an inviolable social
institution, is the foundation of the family and shall be protected by the
State." Since marriage is "Inviolable", it cannot be dissolved by an absolute
divorce.

215
 TOPIC: FAMILY, FORMS OF MARRIAGE SETTLEMENT TOPIC: FAMILY, GROUNDS FOR ANNULMENT
QUESTION NUMBER 3: QUESTION NUMBER 4:
Bar Candidates Patricio Mahigugmaon and Rowena Amor decided to A. One of the grounds for annulment of marriage is that either party, at the
marry each other before the last day of the 1991 Bar Examinations. They time of their marriage was afflicted with a sexually-transmissible
agreed to execute a Marriage Settlement. Rowena herself prepared the disease, found to be serious and appears incurable. Two (2) years after
document in her own handwriting. They agreed on the following: (1) a their marriage, which took place on 10 October 1988, Bethel discovered
conjugal partnership of gains; (2) each donates to the other fifty percent that her husband James has a sexually-transmissible disease which he
(50%) of his/her present property, (3) Rowena shall administer the conjugal contracted even prior to their marriage although James did not know it
partnership property; and (4) neither may bring an action for the annulment himself until he was examined two [2) years later when a child was
or declaration of nullity of their marriage. Both signed the agreement in the already born to them. Bethel sues James for annulment of their
presence of two (2) witnesses. They did not, however, acknowledge it before marriage. James opposes the annulment on the ground that he did not
a notary public. even know that he had such a disease so that there was no fraud or bad
A. As to form, is the Marriage Settlement valid? May it be registered in faith on his part. Decide.
the registry of property? If not, what steps must be taken to make it SUGGESTED ANSWER:
registerable? The marriage can be annulled, because good faith is not a defense when
SUGGESTED ANSWER: Yes, it is valid as to form because it is in writing. the ground is based upon sexually-transmissible disease on the part of either
party. SUGGESTED ANSWER:
No, it cannot be registered in the registry of property because it is not a public
document. To make it registerable, it must be reformed and has to be
notarized. B. Suppose that both parties at the time of their marriage were similarly
afflicted with sexually-transmissible diseases, serious and incurable, and
both knew of their respective infirmities, can Bethel or James sue for
B. Are the stipulations valid? annulment of their marriage?
SUGGESTED ANSWER: Stipulations (1) and (3) are valid because they are SUGGESTED ANSWER:
not contrary to law. Stipulation (4) is void because it is contrary to law. Yes, the marriage can still be annulled because the fact that both of them
Stipulation (2) is valid up to 1/5 of their respective present properties but void are afflicted with sexually-transmissible diseases does not efface or nullity the
as to the excess (Art 84, Family Code). ground.

C. If the Marriage Settlement is valid as to form and the above ALTERNATIVE ANSWER:
stipulations are likewise valid, does it now follow that said Marriage
Settlement is valid and enforceable? B. No, the marriage can no longer be annulled, because the fact that both
were afflicted and that both knew of their respective infirmities constitutes a
SUGGESTED ANSWER: No. on September 15, 1991, the marriage waiver of that ground.
settlement is not yet valid and enforceable until the celebration of the
marriage, to take place before the last day of the 1991 bar Examinations.

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 TOPIC: FAMILY, BIGAMOUS MARRIAGE shares are presumed to be equal. The same rule and presumption shall apply
QUESTION NUMBER 5: to joint deposits of money and evidences of credit.

In June 1985, James married Mary. In September 1988, he also married

Ophelia with whom he begot two (2) children, A and B. In July 1989, Mary c) Is the estate of Mary entitled to a share in the residential lot acquired
died. In July 1990, he married Shirley and abandoned Ophelia, During their by James and Ophelia?
union. James and Ophelia acquired a residential lot worth P300,000.00. SUGGESTED ANSWER: It should be distinguished when the property was
Ophelia sues James for bigamy and prays that his marriage with Shirley acquired. If it was acquired before Mary's death, the estate of Mary is entitled
be declared null and void. James, on the other hand, claims that since his to 1/2 of the share of James. • If it was acquired after Mary's death, there will
marriage to Ophelia was contracted during the existence of his marriage with be no share at all for the estate of Mary.
Mary, the former is not binding upon him, the same being void ab initio he
further claims that his marriage to Shirley is valid and binding as he was
already legally capacitated at the time he married her.
a) Is the contention of James correct?
SUGGESTED ANSWER: Yes. His marriage to Ophelia is void ab initio
because of his subsisting prior marriage to Mary. His marriage to Shirley, after
Mary's death, is valid and bindinG

FIRST ALTERNATIVE ANSWER: No. The contention of James is not correct.
Art. 40, Family Code, provides that the "absolute nullity of a previous
marriage may be invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void." It can be said,
therefore, that the marriage of James to Shirley is void since his previous
marriage to Ophelia, although itself void, had not yet been judicially declared
void

SECOND ALTERNATIVE ANSWER: No. The contention of James is not
correct set up as a defense his own criminal act or wrongdoing.

b) What property Relations governed the union of James and Ophelia?
SUGGESTED ANSWER: The provisions of Art 148 of the Family Code, shall
govern: Art. 148. In cases of cohabitation not falling under the preceding
Article, only the properties acquired by both of the parties through their
actual joint contribution of money, property, or industry shall be owned by
them in common in proportion to their respective contributions. In the
absence, of proof to the contrary, their contributions and corresponding

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 TOPIC: SUCCESSION, WHEN DEATH DEEMED TO OCCUR, CONTRACTUAL mother. Said deeds of sale are not contracts entered into
SUCCESSION, PRESUMPTIVE LEGITIMES with respect to future inheritance.
QUESTION NUMBER 6: "It would be unjust for the mother to revoke the sales
d) For purposes of succession, when is death deemed to occur or take to a son and to execute a simulated sale in favor of a
place? daughter who already benefited by the partition."

SUGGESTED ANSWER: Death as a fact is deemed to occur when it actually

takes place. Death is presumed to take place in the circumstances under Arts. f) Is there any law which allows the delivery to compulsory heirs of their
390-391 of the Civil Code. The time of death is presumed to be at the presumptive legitimes during the lifetime of their parents? If so, in
expiration of the 10 year period as prescribed by Article 390 and at the what instances?
moment of disappearance under Article 391. SUGGESTED ANSWER: Yes, under Arts. 51 and 52 of the New Family
Code. In case of legal separation, annulment of marriage, declaration of
e) May succession be conferred by contracts or acts inter-vivos? nullity of marriage and the automatic termination of a subsequent marriage
Illustrate. by the reappearance of the absent spouse, the common or community
property of the spouses shall be dissolved and liquidated.
SUGGESTED ANSWER: Under Art. 84 of the Family Code amending Art
130 of the Civil Code, contractual succession is no longer possible since the Art, 51. In said partition, the value of the presumptive legitimes of all
law now requires that donations of future property be governed by the common children, computed as of the date of the final judgment of the trial
provisions on the testamentary succession and formalities of wills. court, shall be delivered in cash, property or sound securities, unless the
parties, by mutual agreement, judicially approved, had already provided for
ALTERNATIVE ANSWER: such matters.
In the case of Coronado vs.CA(l91 SCRA81), it was ruled that no property The children of their guardian, or the trustee of their property, may ask
passes under a will without its being probated, but may under Article 1058 of for the enforcement of the judgment.
the Civil Code of 1898, be sustained as a partition by an act inter vivos [Many-
Oy vs. CA 144SCRA33). The delivery of the presumptive legitimes herein prescribed shall in no
way prejudice the ultimate successional rights of the children accruing upon
And in the case of Chavez vs, IAC 1191 SCRA211), it was ruled that while the death of either or both of the parents; but the value of the properties
the law prohibits contracts upon future inheritance, the partition by the already received under the decree of annulment or absolute nullity shall be
parent, as provided in Art. 1080 is a case expressly authorized by law. A considered as advances on their legitime.
person has two options in making a partition of his estate: either by an act
inter vivos or by will. If the partition is by will, it is imperative that such Art. 52. The judgment of annulment or of absolute nullity of the marriage,
partition must be executed in accordance with the provisions of the law on the partition and distribution of the properties of the spouses, and the
wills; if by an act inter vivos, such partition may even be oral or written, and delivery of the children's presumptive legitimes shall be recorded in the
need not be in the form of a will, provided the legitime is not prejudiced. appropriate civil registry and registries of property; otherwise, the same shall
not affect third persons.
"Where several sisters execute deeds of sale over
their 1 /6 undivided share of the paraphernal property of
their mother, in favor of another sister, with their mother
not only giving her authority thereto but even signing said
deeds, there is a valid partition inter vivos between the
mother and her children which cannot be revoked by the

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 TOPIC: CONFLICT OF LAW, LAWS GOVERNING SUCCESSION AND TOPIC: PROPERTY, DONATION
FILIATION QUESTION NUMBER 14:
QUESTION NUMBER 8: Spouses Michael and Linda donated a 3-hectare residential land to the
Jacob, a Swiss national, married Lourdes, a Filipina, in Berne, Switzerland. City of Baguio on the condition that the city government would build thereon
Three years later, the couple decided to reside in the Philippines. Jacob a public park with a boxing arena, the construction of which shall commence
subsequently acquired several properties in the Philippines with the money within six (6) months from the date the parties ratify the donation. The donee
he inherited from his parents. Forty years later. Jacob died intestate, and is accepted the donation and the title to the property was transferred in its
survived by several legitimate children and duly recognized illegitimate name. Five years elapsed but the public park with the boxing arena was never
daughter Jane, all residing in the Philippines. started. Considering the failure of the donee to comply with the condition of
(g) Suppose that Swiss law does not allow illegitimate children to inherit, the donation, the donor-spouses sold the property to Ferdinand who then
can Jane, who is a recognized illegitimate child, inherit part of the sued to recover the land from the city government. Will the suit prosper?
properties of Jacob under Philippine law? SUGGESTED ANSWER: Ferdinand has no right to recover the land. It is
SUGGESTED ANSWER: true that the donation was revocable because of breach of the conditions.
But until and unless the donation was revoked, it remained valid. Hence,
Yes. As stated in the problem. Swiss law does not allow illegitimate Spouses Michael and Linda had no right to sell the land to Ferdinand. One
children to inherit Hence, Jane cannot inherit the property of Jacob under cannot give what he does not have. What the donors should have done first
Philippine law. was to have the donation annulled or revoked. And after that was done, they
could validly have disposed of the land in favor of Ferdinand.
(h) Assuming that Jacob executed a will leaving certain properties to Jane ALTERNATIVE ANSWER:
as her legitime in accordance with the law of succession in the A. Until the contract of donation has been resolved or rescinded under
Philippines, will such testamentary disposition be valid? Article 1191 of the Civil Code or revoked under Art. 764 of the Civil Code, the
SUGGESTED ANSWER: donation stands effective and valid. Accordingly, the sale made by the donor
to Ferdinand cannot be said to have conveyed title to Ferdinand, who,
The testamentary disposition will not be valid if it would contravene Swill
thereby, has no cause of action for recovery of the land acting for and in his
law; otherwise, the disposition would be valid. Unless the Swiss law is proved,
behalf.
it would be presumed to be the same as that of Philippine law under the
Doctrine of Processual Presumption. B. The donation is onerous, And being onerous, what applies is the law
on contracts, and not the law on donation (De Luna us. Abrigo, 81 SCRA 150).

Accordingly, the prescriptive period for the filing of such an action would be
the ordinary prescriptive period for contacts which may either be six or ten
depending upon whether it is verbal or written. The filing of the case five
years later is within the prescriptive period and, therefore, the action can
prosper,
SECOND ALTERNATIVE ANSWER: The law on donation lays down a
special prescriptive period in the case of breach of condition, which is four
years from non-compliance thereof (Article 764 Civil Code). Since the action
has prescribed, the suit will not prosper.

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 1989 BAR QUESTIONS Question No. 2:


Requisites of Marriage
Question No. 1: Laws governing marriages; Forms and solemnities
(1) Paul, a 17-year old Filipino and a permanent resident in the United

States, married Jean, a 16-year old American in Las Vegas, Nevada. The
(1) Robert and Evelyn, both Filipinos, met in Los Angles, California. They
parents of both gave their consent to the marriage. The marriage is valid in
agreed to get married on June 10, 1989. On June 7, 1989, Robert flew to New
Nevada. Is its also valid in the Philippines? Give your reasons.
York due to an urgent business matter but intended to return to Los Angeles

on June 9, 1989, in time for the wedding. The business emergency of Robert,
Answer:
however, lasted longer than he expected so that he failed to return to Los
No, the marriage is not valid. Under the Family Code, the law requires
Angeles as planned. In order not to postpone the wedding, Robert
that the contracting parties are at least eighteen (18) years of age.
immediately called his brother Val who was also residing at Los Angeles to

stand as his proxy at the wedding, which the latter did. Is the marriage of
Alternative Answer:
Robert and Evelyn valid in the Philippines? Give your reasons.
If the marriage took place before the effectivity of the Family Code, the

marriage will be valid since under the provisions of the Civil Code a marriage
Answer:
valid in the place of celebration is valid in the Philippines except bigamous,
If the marriage was performed in accordance with the laws of California
polygamous, and incestuous marriages as determined by Philippine law.
and valid there, then the marriage is likewise valid in the Philippines.
The minimum age under the old law was sixteen (16) for the male and

fourteen (14) for the female.
Alternative Answer:

Since the problem does not state the California law on marriage by

proxy, the presumption in Private International Law is that the California
Void Marriages
law is the same as the Philippine law. Therefore, the marriage would be
(2) Cesar and Baby contracted marriage on June 15, 1983. A year later,
void.
Baby bore a child, "X" The following year, the couple acquired a car and a

residential lot in Metro Manila. On September 1, 1988, the marriage was
(2) While "X", an Associate Justice of the Court of Appeals, was
declared void from the beginning by a competent court because Cesar was
vacationing in Cebu City, he was requested to solemnize the marriage of
below 16 years of age at the time of the marriage. Sometime in December,
Serge and Joan in the residence of Serge's parents. "X" could not refuse the
1988, Cesar met Rosa with whom he fell in love, Cesar married Rosa on
request of both the parents of the couple because they were his relatives. On
January 15, 1989. On September 1, 1989, Rosa gave birth prematurely to a
the day set for the wedding, there were so many visitors at the residence of
child, "Y". Is the marriage of Cesar and Rosa valid? What is the status of the
Serge's parents so that "X" decided to solemnize the marriage at the kiosk of
child "Y?" Give your reasons.
the public plaza located nearby, Is the marriage of Serge and Joan valid? Give

your reasons.
Answer:

If there was a liquidation of the properties of the first marriage and the
Answer:
presumptive legitime of "X" was duly delivered, the second marriage is
Yes, because the requirement that the marriage be solemnized in a
valid. If there was no such compliance, then the marriage is void. The child
public place is not an essential requisite of the law.
is legitimate since "Y" was born a full year after the termination of the first

marriage and during the second marriage.

Alternative Answers:

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 A. The Family Code requires the registration of the judgment of nullity, Question No. 3: Property Relations
the partition of the properties and the delivery of the legitimes to be made (1) What properties are excluded from the regime of absolute community
with the appropriate civil registry and registries of property. It further of property between spouses?
provides that failure to comply with the said requirement shall render the
marriage null and void. If there was such a recording, the marriage is valid. Answer:
Otherwise, the marriage is void. Nevertheless, child "Y" is a legitimate child The following shall be excluded from the community property:
because it was born during the marriage of Cesar and Rosa. (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
B. Since the problem does not state that there was compliance with the expressly provided by the donor, testator or grantor that they shall form
requirements as to recording of judgment of nullity and the liquidation and part of the community property;
delivery of the presumptive legitime of the child "X", the marriage of Cesar (2) Property for personal and exclusive use of either spouse; however,
and Rosa is void. However, the child "Y" is legitimate because it was born jewelry shall form part of the community property;
during the marriage of Cesar and Rosa. (3) Property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as well as the
income, if any, of such property.

(2) When should the property relations of the spouses be mandatorily
governed by the regime of complete separation of property?

Answer:
Should the surviving spouse contract a subsequent marriage without
complying with the requirement that the community or conjugal property
be liquidated judicially or extra-judicially within one year from the death of
the deceased spouse, a mandatory regime of complete separation of
property shall govern the property relations of the subsequent marriage.

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 Question No. 4: Question No. 5: Paternity And Filiation
Legal Separation (1) What are the grounds for impugning the legitimacy of a child?
(1) Cadio and Corona contracted marriage on June 1, 1982. A few days
after the marriage, Corona discovered that Cadio was a homosexual. As Answer:
homosexuality was not a ground for legal separation under the Civil Code, Legitimacy of a child may be impugned only on the following grounds:
there was nothing that Corona could do but bear with her problem. The (1) That it was physically impossible for the husband to have sexual
couple, however, stated to live separately. With the enactment of the Family intercourse with his wife within the first 120 days of the 300 days which
Code, Corona decided to be legally separated from Cadio based on the new immediately preceded the birth of the child because of:
ground of homosexuality. Corona brought her action for legal separation on (a) the physical incapacity of the husband to have sexual
September 15, 1988. Will the action prosper? Give your reasons. intercourse with his wife;
(b) the fact that the husband and wife were living separately in
Answer: such a way that sexual intercourse was not possible; or
Yes, the action will prosper because the "cause" arose only on August (c) serious illness of the husband, which absolutely prevented
3, 1988, the effectivity of the Family Code and the action had not yet sexual intercourse;
prescribed. (2) That it is proved that for biological or other scientific reasons, the
child could not have been that of the husband, except in the instance
Alternative Answer: provided in the second paragraph of Art. 164; or
The action will prosper. The offense of homosexuality as a continuing (3) That in case of children conceived through artificial insemination,
offense can be a ground for legal separation. The prescriptive period of five the written authorization or ratification of either parent was obtained
years will apply only when the offense has a fixed period of time and, through mistake, fraud, violence, Intimidation, or undue influence.
therefore, the date of its occurrence can be computed.
Adoption
Family Home (2) Felix, a Filipino doctor of medicine, married Monique, an Italian nurse,
(2) What is "Family Home" and when is it deemed constituted? Who are in 1985. It was later discovered that Monique cannot bear a child so that the
the beneficiaries thereof? couple decided to adopt one. Can they jointly adopt Marie, the 19-year old
niece of Monique? Explain.
Answer:
The "Family Home" is the dwelling house where the husband, the wife, Answer:
and their family including the unmarried head of the family reside and the Since the child to be adopted is an Italian citizen, the joint adoption
land on which it is situated. The "Family Home" is deemed constituted on a cannot be effected. Had the child been a relative by consanguinity of the
house and lot from the time it is occupied as a family residence. Filipino spouse, the adoption would have been valid under the Philippine
law.
The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of a
family; and
(2) Their parents, ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate, who are living in the
family home and who depend upon the head of the family for legal support.

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 Question No. 6: Question No. 10:
Property; Usufruct Succession; Wills
(1) What is USUFRUCT? How is usufruct extinguished? (1) What are the characteristics of a will?
Answer:
Answer: A will is —
Usufruct gives a right to enjoy the property of another with the 1. Personal
obligation of preserving its form and substance, unless the title constituting 2. Unilateral
it or the law otherwise provides. 3. Formal or Solemn
Usufruct is extinguished: 4. Ambulatory or revocable
(1) By the death of the usufructuary, unless a contrary intention clearly 5. Individual, not joint
appears; 6. Free and voluntary
(2) By the expiration of the period for which it was constituted, or by 7. Mortis causa
the fulfillment of any resolutory condition provided in the title creating the
usufruct; Succession; Probate of wills of aliens
(3) By merger of the usufruct and ownership in the same person; (2) "X", a Spanish citizen and a resident of Los Angeles, California,
(4) By renunciation of the usufructuary; executed a will in Tokyo, Japan. May such will be probated in the Philippines?
(5) By the total loss of the thing in usufruct; May his estate located in the Philippines be distributed in conformity with the
(6) By the termination of the right of the person constituting the provisions of the said will? Give your reasons.
usufruct;
(7) By prescription. Answer:
A. Yes, it may be made according to the formalities of Spanish law,
Property; Accession; Accretion California law, Japanese law, or Philippine law.
(2) Spouses "A" and "B" are registered owners of lot "1" consisting of
20,000 square meters while spouses "C" and "D" are owners of lot "2". These B. Yes, provided that the provisions conform to the order of succession
lots arc separated by a river. For a period of more than 40 years, the river and the amount of successional rights as regulated by Spanish law.
overflowed its banks yearly and the property of the spouses "C" and "D*
gradually received deposits of soil from the effects of the current of the river
so that an alluvial deposit of 29,000 square meters was added to their lot,
11,000 square meters of which used to be part of lot "1." Spouses "A" and "B"
contend that accretion should not extend to registered land because to allow
the spouses "C" and "D" to acquire title over the accretion will be in
derogation of the indefeasibility of the Torrens Title of spouses "A" and "B".
Is this contention correct? Explain.

Answer:
No, the contention of A and B is not correct because the registration
under the Torrens Law does not protect the owner against the diminution
of his land through gradual changes due to the effects of the current of the
river. The accretion will benefit C and D.

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 Question No. 11:
Succession; Wills; Witnesses to Holographic Wills
(1) The probate of the will of Nicandro is contested on the ground that
the notary public before whom the will, was acknowledged was also one of
the three instrumental witnesses. If you were the probate judge, how would
you decide the contest? Give your reasons.

Answer:
The will is void. The acknowledging officer cannot serve as attesting
witness at the same time. In effect there are only two witnesses since the
notary cannot swear before himself.

Succession; Disinheritance; Grounds
(2) Jose and Ana are husband and wife. On January 10, 1980, Jose learned
that Ana was having illicit relations with Juan, In fact, Jose personally saw his
wife and Juan leaving a motel on one occasion. Despite all the evidence he
had at hand, Jose did not bring any action for legal separation against Ana.
Instead, Jose simply prepared a will wherein he disinherited Ana for her acts
of infidelity. The validity of the disinheritance was questioned by Ana upon
Jose's death. If you were the judge, how would you resolve this question?
Give your reasons.

Answer:
The disinheritance is valid. Under the Civil Code, the legal ground for
disinheriting a spouse is that the spouse has given cause for legal
separation. Therefore, a final judgment is not needed.

Alternative Answer:
The disinheritance is not valid. The facts indicate that there was
condonation by Jose of Ana's illicit relationship with Juan since they appear
to have continued to live together.

224